And in conclusion ...

Now, after 20 years, this site ends. Please feel free to follow this link to Google Drive and select download for a pdf of these case notes and commentary. You probably need a Google account for this to work.

The pdf is best viewed on a laptop or larger screen, and, as there are many links within the document, an ability to go back after following a link will be useful. It has a table of contents and an index with just about as many entries as you could wish for.

And on the topic of wishing, let me wish you an enjoyable engagement with this area of the law.

Inappropriate generalisations: BQ v The King [2024] HCA 29 and Steven Moore (a pseudonym) v The King [2024] HCA 30

While counter-intuitive evidence may require a direction against its misuse, it is wrong to attempt to formulate a general direction applicable in all cases: BQ v The King [2024] HCA 29 at [50].

“[51] … Instead, where necessary, the legitimate and potentially illegitimate uses to which such evidence might be put should be identified and, if there is a sufficient likelihood or risk that such evidence might be put to an illegitimate use, then that may warrant consideration of its exclusion …  or the giving of a direction to the jury to guard against that illegitimate use.”

This appears to reject the practice current in New Zealand and described at [48], whereby the jury is told that the counter-intuitive evidence is general in nature and that it says nothing about the credibility of this particular complainant.

It seems likely that the New Zealand Supreme Court will disavow any intention to require such a general direction in all cases where counter-intuitive evidence is given.

Also delivered today is the judgment in Steven Moore (a pseudonym) v The King [2024] HCA 30. After a quite interesting discussion of the standard of appellate review applicable to interlocutory admissibility decisions in criminal cases (concluding at [18] that it is the correctness standard), the Court went on to consider the probative value and illegitimately prejudicial effect weighing exercise, familiar to everyone and used in some admissibility decisions.

The Court repeats, and applies, a potentially absurd overview of this weighing exercise [30]:

“… The fact that the evidence has high probative value makes the appellant’s task of demonstrating a danger of prejudice that outweighs that value much harder.”

This is to confuse weighing with balancing [1]. A level of prejudice that results in trial unfairness for the defendant should necessarily outweigh any probative value. The Court here seems to be stating its proposition too generally.

So the New Zealand courts must reject any thought they may have about enjoying a monopoly on inappropriate generalisations.

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[1] See my note dated 8 October 2019.

Misdirections and trial fairness: Maynard v The King (St Christopher and Nevis) [2024] UKPC 24

A defendant who has not had a fair trial should be entitled to a new trial, regardless of how compelling the evidence of guilt appears to be. [1]

This is so, even where appellate judges are allowed to reach their own verdict. [2]

In Maynard v The King (St Christopher and Nevis) [2024] UKPC 24 the Board concluded that the appellant’s trial had not been fair and that the proviso did not save the conviction [61]. Strangely, or perhaps just for completeness, the Board also said in the same paragraph that it was not satisfied that a jury properly directed would inevitably have convicted Mr Maynard.

A complicating matter is this passage from Cassell v The Queen (Montserrat) [2016] UKPC 19:

“29. It may be that there can be imagined cases in which the trial process is so perverted that an appellate court would be driven to the view that there was a miscarriage of justice even if satisfied that any jury would inevitably have convicted the defendant if the trial had been properly conducted. It is not necessary to attempt to define such cases; plainly this question will be fact specific and a matter of degree. It is possible that an example might be the bribery of the jury, or a case in which the jury was dismissed and the court purported to record a verdict of guilty of its own motion. But cases of this sort will be very unusual. Ordinarily the whole point of the proviso is that it falls to be considered precisely because there has been some significant defect, which may include unfairness to the defendant, in the trial.” [emphasis added]

On this approach, an unfair trial is not a substantial miscarriage of justice, apparently because substantial is taken to mean directed at the result regardless of fairness.

This paragraph from Cassell was not cited in Maynard, but paragraphs 28 and 30 were (see [38] and [48] of Maynard). It is inconsistent with R v H [2004] UKHL 3 at [10]:

“ As the House declared in R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, 68, and recently repeated in Attorney General's Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 WLR 1, para 13, it is "axiomatic" "that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not be tried for it at all". …”

It may be that the correct analysis is that Mr Maynard did not receive a fair trial because deficiencies in the judge’s direction to the jury - a failure to point out any possible weaknesses in identification evidence, and a failure to give a good character direction - created a real risk that the jury had not been able to properly apply the law to the evidence.

While the Board in Maynard acknowledged that there may have been some force in the submission that the Court of Appeal had fallen into the error of substituting trial by appeal judges for trial by jury, it added that in considering the proviso the Court of Appeal “necessarily assessed the consequences of the misdirection in contemplation of the proviso” [49].

The point seems to be that when considering whether to apply the proviso and dismiss the appeal against conviction, the Court of Appeal necessarily had to assess the consequences of the misdirection to decide if the trial had been unfair. If it had been unfair (as the Board held it had been), then the conviction had to be quashed, but if the trial had been fair the relevant consequence was whether, despite the error, there was no real risk that the verdict had been affected.

Whether, in assessing the risk that the verdict had been affected by the error, the appeal court should decide for itself whether it is sure the defendant is guilty, or whether it should only decide whether there is a real risk that a verdict more favourable to the defendant may have been returned, depends on whether a verdict of the appeal judges is a proper substitute for a jury verdict.

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[1] See, for example, Attorney-General’s Reference No 2 of 2001 [2003] UKHL 68 at [13]: “ … If it is established, after the event, that a trial was unfair, any resulting conviction will be quashed: Mohammed v The State [1999] 2 AC 111, 124; R v Togher [2001] 3 All ER 463, 472; R v Forbes [2001] 1 AC 473, 487, para 24; Mills v HM Advocate [2002] 3 WLR 1597, 1603, para 12. This is what domestic law requires, and what the Convention requires.”

[2] Appeal courts usually have the power to substitute a verdict of acquittal. But as for upholding convictions, there are currently differences over whether appellate courts are allowed to reach their own verdicts after a jury trial that has miscarried. Legislation on the point may even be given a strained interpretation in order to be consistent with prior case law, as has, arguably, occurred in New Zealand. I have mentioned this here several times, for example on 9 July 2009 and 1 July 2021.