The meaning of "and": Pulsifer v United States USSC 22-340

When a statutory exception is followed by a list of conditions, a court may have to decide whether the list is conjunctive or disjunctive. That is, must all the conditions be satisfied before the exception applies, or need only an individual condition be satisfied for the exception to apply?

This problem split the Supreme Court of the United States 6-3 in Pulsifer v United States USSC 22-340 (15 March 2024).

At issue was an exception to protection against imposition of a statutory minimum sentence. It was an issue that mattered “profoundly”, affecting the lives and liberty of thousands of individuals (per Gorsich J, joined by Sotomayor and Jackson JJ for the minority).

For lawyers, the point of construction at issue has an entertainment value that belies its seriousness. It is worth reading the provision first (set out in the Appendix to the judgment of the Court), to see what you think is its ordinary and natural meaning.

The majority, in a judgment delivered by Kagan J, did not consider that the provision was genuinely ambiguous, notwithstanding that, viewed in the abstract, two readings were grammatically permissible. Therefore the rule of lenity (which would favour the construction that was most favourable to a defendant) had no role here. The interpretation argued for on behalf of Mr Pulsifer, said the majority, created “glaring superfluity”. Considered in its legal context, the text must be construed to avoid superfluity, and further, the exception to protection against liability for a minimum sentence must as a matter of policy reflect the (relative lack of [1]) seriousness of defendants’ criminal records.

In the majority’s opinion, Mr Pulsifer”s argument was that to be included in the exception from protection against imposition of the minimum penalty a defendant would have to meet all three conditions, but this would mean that if conditions 2 and 3 were met, condition 1 would be superfluous.

The minority disagreed with this claim of superfluity as it depended on how prior offenses were counted, and held that the policy justification could not overcome the plain meaning of the text.

Anyway, students of statutory construction should read this case, if only for entertainment (but remembering the minority’s observation that statutes aren’t games or puzzles).

Fifty-nine and a half pages on the meaning of “and”. Who could resist?

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[1] I parenthesize "relative lack of" seriousness, because ironically the majority insist that only one of the disqualifying conditions needs to be met, whereas the minority would have required all the conditions - meaning a very serious record of offending - to be met before a defendant was disqualified from protection against imposition of the minimum sentence.

Dealing with jury misconduct: Campbell v R (No 2) (Jamaica) [2024] UKPC 6

Dealing with the risk that a jury was “poisoned” (so to speak) [1]) by misbehaviour was the topic considered in Campbell v R (No 2) (Jamaica) [2024] UKPC 6.

The difficulty for the trial judge in this case was that at the closing stage of a lengthy and complex (and necessarily expensive) trial a concern was raised that attempts had been made by one juror to bribe others - the number was not clear - to acquit the defendants. Could this risk be avoided by judicial management?

The Board held that the measures taken here had not been sufficient [44]-[45]. The defendants’ fundamental right to a fair trial by an independent and impartial court had been infringed. The judge’s duty was 

“to ensure a fair trial. In order to maintain public confidence in the administration of justice it is necessary to do justice to both prosecution and defence so that the guilty may be convicted and the innocent acquitted.” [47]

So the party that may have been prejudiced (the prosecution) could not waive the misconduct.

The judge should have considered whether there was “a real risk” that jurors may have been consciously or unconsciously prejudiced for or against one or more of the defendants [48]-[53].

Here the verdicts were returned by a jury that was not a fair and impartial tribunal of fact, so there was no room for application of the proviso. [55]

It was for the local courts to decide whether a retrial should be ordered [63]-[64].

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[1] Borrowing at [48]-[51] the language of Bingham LJ in R v Putnam (1991) 93 Cr App R 281, 286-287.

The Australian common law of duress: The King v Anna Rowan (A Pseudonym) [2024] HCA 9

Is it right in principle to require, for the defence of duress, that the threat be accompanied by a demand that a particular offence be committed?

And can the threat be implied from the circumstances, or must it be an express threat?

The Australian common law was considered in The King v Anna Rowan (A Pseudonym) [2024] HCA 9.

In a joint judgment Gageler CJ, Gordon, Jagot and Beech-Jones JJ held that Australian common law of duress does indeed require that the threat included a requirement or demand that the defendant commit the acts that constitute the offence charged [53]. Also, the threat and the demand can be unstated but implied from the circumstances [55], [57]. Here, the Court of Appeal had not made the mistake of moving away from the established common law of duress, which was the Crown’s concern, and, as there had been sufficient evidence at voir dire to raise duress as a live issue, this appeal against the Court of Appeal’s reversal of the judge’s decision was dismissed.

Edelman J concurred in the result but suggested a principled development of the Australian common law. He argued that there is no basis for a distinction between threats made by a human person and threats from other sources [84]. This is so, notwithstanding that duress and necessity are separate, and neither party here sought their unification [86]-[87]. Also, although neither party submitted that a demand directed at the commission of a particular offence was unnecessary, such a demand is not needed [98].

The requirement for a demand that a particular offence (the offence charged) be committed to avoid the threatened acts is contrary to principle [106]. Here, the point being made appears to be that if the defence of duress was only available for the demanded offence, a defendant who found a way to avoid the threatened action by committing a lesser offence would not have the defence of duress for that lesser offence. Indeed, continued Edelman J, there need not be any demand for an offence to be committed, as where the defendant drove dangerously to avoid threats of violence from a dangerous mob [107].

Common sense in assessments of the credibility and reliability of witnesses in judge-alone trials: R v Kruk, 2024 SCC 7

In judge-alone trials, the judge must give reasons for the verdict. This obligation creates difficulties for the judge, especially around adequately explaining reasons for assessments of the credibility and reliability of witnesses. There can be a tendency for judges to refer to their common sense and their experience of the ways of the world. This might lead to a departure from the evidence in the case. How should an appellate court determine whether the judge has reasoned lawfully?

This was the central question in R v Kruk, 2024 SCC 7.

The Court unanimously rejected a rule-based approach called “the rule against ungrounded common-sense assumptions” [1].

There were numerous reasons for that rejection, but of more general interest is the articulation(s) of the correct appellate approach to judicial assumptions not supported (or controverted) by evidence.

Two judgments were delivered, with Rowe J agreeing in the results of these appeals (in two unrelated cases) but setting out the analysis he prefers. How different is this from that of the other judges - Wagner CJ, Coté, Martin, Kasirer Jamal and O’Bonsawin JJ - in their joint judgment?

The joint judgment sets out “the existing and well-established law on assessing a trial judge’s credibility or reliability assessments” at [93]-[99]. As their summary is given “for the utmost clarity” [93], it seems pointless to summarize their summary.

But in asking whether Rowe J’s approach is different, comparison of [93]-[99] with [129]-[132] is necessary. He describes the issue in these terms: “These two appeals ask how appellate courts should review trial judges’ reliance on generalized expectations based on common sense and human experience in the fact-finding process” [128]. Broadly, appellate courts need to be sure that what the judge relied on was indeed a generalized expectation and not an assessment of evidence in the case ([130] - this is what the joint judgment says at [94]), then, if reliance had been placed on a generalized expectation, ask whether that expectation was reasonable ([131] - here the joint judgment at [95] diverts to address unreasonable assumptions and to consider how these should be reviewed on appeal [96]-[97]), and if it was reasonable, ask whether it was used to replace evidence instead of being a benchmark for assessing the evidence ([132] and here the joint judgment follows an identification of error by asking whether it was “palpable” in the sense that it affected the result or went to the very core of the outcome of the case [98]).

One kind of error is an error of law, and the standard for review is simply whether the judge got the law right [96]. Examples of this open-ended category are given at [96]. If the error was not one of law, the standard for review is whether the error was palpable and overriding, and examples are given at [97].

A case that was overruled in Kruk provides a quite amusing (at least, I think so) illustration of how absurd it is to require generalizations that are advanced to support credibility and reliability findings to be grounded in evidence: R v JC, 2018 ONSC 5547. See Kruk per Rowe J at [211]-[213], and the joint judgment at [21]-[23]. Absurd, because “The Crown cannot be expected to elicit evidence on how sexual encounters ordinarily unfold in every sexual assault trial before a trial judge can rely on their common sense or human experience with respect to human sexual behaviour” [211].

New offence or improved old offence? Xerri v The King [2024] HCA 5

It is not unusual for legislation defining an offence to be changed, and a question may arise as to whether the change creates a new offence, or whether the original offence (the predecessor offence) was merely reformulated, refined or improved.

This was the issue in Xerri v The King [2024] HCA 5, as stated by Gageler CJ and Jagot J at [14], and by Gordon, Steward and Gleeson JJ at [41]. If the change did not create a new offence but, inter alia, increased the maximum penalty, an offender would have the benefit of the lesser penalty if the offending occurred before the change (this rule is embodied in the legislation referred to at [7] and [41]).

Whether a change is so radical as to create a new offence can be a difficult question, the answer only seeming simple once it has been decided in a court of final appeal. Here, it seems that after the hearing of the appeal in the High Court the Crown (the ultimate winner) was not confident of victory, and it was given leave to file supplementary submissions [37], [68]. These did not need to be addressed.

In comparing the old with the new versions it is necessary to focus on the substance, rather than the form, of the provisions [15]. Here, Gageler CJ and Jagot J listed six substantial differences between the provisions ([16]-[21]), and Gordon, Steward and Gleeson JJ listed eight ([60]). The Court was unanimous in deciding that a new offence had been created, that the increased maximum penalty applied, and the appeal was dismissed.

The reasons for the change in legislation assisted in explaining why this was a new offence. References to a report by a Royal Commission, and to explanations in the Second Reading debate provided useful context.

Several problems were addressed by the new provisions. For example - and all this was about sexual offending by adults against children - it could be difficult for complainants to say precisely when alleged offending occurred, juries might not agree that all of several allegations were proved, historical sentencing patterns might now seem inappropriately lenient, and defendants should not benefit from their own delaying tactics in progressing cases to trial. Accordingly, the new law requires proof of an unlawful sexual relationship, and a jury need not be unanimous about which alleged incidents occurred when deciding whether there had been such a relationship. The new maximum penalty applies, whether the relationship occurred before, during or after the commencement of the new legislation.

How private is an IP address? R v Bykovets, 2024 SCC 6

How private is an IP address?

Is it like a fingerprint at the scene of a crime? Of itself it says nothing until matched with other information. No one has privacy rights in respect of fingerprints they may leave on things.

Or is an IP address as private as the information to which it is linked?

Whether there is privacy in an IP address is a difficult question. The strong dissent of four justices in R v Bykovets, 2024 SCC 6 demonstrates how vexed this is.

Wagner CJ, with Coté J (who delivered the joint dissenting judgment), Rowe and O’Bonsawin JJ made the fingerprint point at [154]. Their judgment focuses on the circumstances of the present case and recognises that on different facts a person might have a reasonable expectation of privacy [159]. Further, the Court’s jurisdiction is confined to questions of law arising from the facts as they are, not as they might be [161]-[162]. Consistent with this is the circumscribed role that interveners can have [163]. In essence, held the minority, the majority answer a question that was not asked [164]. Of most significance to the difference between the judges is the majority’s inclusion in the subject matter of the privacy question every step leading to the ultimate identification of the suspect notwithstanding that the IP address alone does not go that far [138].

Karakatsanis J delivered the majority judgment of herself and Martin, Kasirer, Jamal and Moreau JJ. For what an IP address does, see [4]. One asks, what were the police really after? An holistic approach must be taken in answering this [34]. The privacy interests are intense [60]-[70]. These outweigh the burden on the police of having to obtain search warrants [86].

Both judgments accepted that the approach is normative (see [120] for what this means). So the question is not determined by whether an individual has a low expectation of privacy (for example because of having a suspicious nature). Instead, the determination is about what expectation of privacy a person should have. The difference is in over what the judges considered was a reasonable expectation of privacy (for the dissenters, in the circumstances of this case [141]-[158], for the majority, generally [44]-[70]).

This was a case about credit card fraud. The minority saw no reasonable expectation of privacy as to IP address in that context. In what context might the minority have held that there was a reasonable expectation of privacy? The significant point here is that here the IP address did not reveal core biographical information [148], while on other facts it might. The important thing about the context seems to be, not the offence being investigated but the extent to which core biographical information is revealed.

The majority's teleological approach to the issue - addressing the purpose of the search - is consistent with the development of the common law in the interests of the community, whereas the minority's narrower perspective is a case law application of legislation to the facts of the instant case. The distinction between common law and case law (not a universally recognised distinction, but useful nevertheless) is illustrated here.