Two recent cases highlight a couple of unrelated but fundamental points.
When has a defendant not had effective legal representation?
In Thornell v Jones USSC 22-982, 30 May 2024 the Court summarised the law on appeals against sentence on the grounds of ineffective assistance of counsel, which had been stated in Strickland:
“To succeed on such a claim, a defendant must show that counsel provided a “deficient” performance that “prejudiced” him. Strickland, 466 U. S., at 687. When an ineffective-assistance-of-counsel claim is based on counsel’s performance at the sentencing phase of a capital case, a defendant is prejudiced only if “there is a reasonable probability that, absent [counsel’s] errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id., at 695. “A reasonable probability is a probability sufficient to undermine confidence in the outcome. That requires a substantial, not just conceivable, likelihood of a different result.” Pinholster, 563 U. S., at 189 (citation and internal quotation marks omitted). This standard does not require a defendant to show that it is more likely than not that adequate representation would have led to a better result, but “[t]he difference” should matter “only in the rarest case.” Strickland, 466 U. S., at 697. To determine whether a prisoner satisfies this standard, a court must “consider the totality of the evidence before the judge or jury”—both mitigating and aggravating Id., at 695.”
Suspicion and belief are different states of mind
And in A (SC70/2022) v Minister of Internal Affairs [2024] NZSC 63 at [41] the fundamental distinction between belief and suspicion was accepted and applied:
"Clause 2(2) requires that the Minister believes on reasonable grounds, not suspects. Both counsel for the appellant and the special advocate emphasised this. In R v Williams, a case dealing with applications for search warrants, the Court of Appeal explained the difference between these standards in these terms: [Footnote 23: R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 per William Young P and Glazebrook J (citations omitted). Hammond J agreed at [258].]
[213] Having “reasonable grounds to believe” … is a higher standard to meet than “reasonable ground to suspect” … Belief means that there has to be an objective and credible basis for thinking that a search will turn up the item(s) named in the warrant, while suspicion means thinking that it is likely that a situation exists. The issuing officer must hold the view that the state of affairs the applicant officer is suggesting actually exists.”
This case was a successful appeal against the dismissal of an application to review the Minister’s cancellation of the applicant’s passport. The Supreme Court declared that the Minister’s decision was unlawful and invalid [159] and awarded her costs in relation to the appeal [161]. There is a good deal more of interest in this case concerning the interpretation of the relevant anti-terrorist legislation. The special advocate procedure was used and a significant proportion of the proceedings occurred in closed court [5]. The Supreme Court issued two judgments, this public one and another one only accessible in narrowly defined circumstances [7].
