Acting in the client’s interests but against instructions

A cautionary note from the Privy Council on the timing of a challenge to the defendant's fitness to stand trial: Taitt v The State (Trinidad and Tobago) [2012] UKPC 38, at [18]:

"In Nigel Brown v The State
[2012] UKPC 2, para 68 the Board expressed its concern at the fact that reports as to the appellant's ability to instruct counsel were produced ex post facto and without any explanation as to why medical evidence on the issue of fitness had not been produced in the courts below. It wished to make clear that it should not be assumed that even highly persuasive evidence produced for the first time at the final appeal stage would be admitted: para 70. The fresh evidence has been admitted in this case so that it may be scrutinised. But the Board is just as anxious to make it clear that it will only be in an exceptional case that it will entertain the argument that the appellant was not fit to stand trial because he is of low intelligence due to a learning disability when the point was not taken on his behalf by counsel at his trial. It is the responsibility of counsel to assess whether his client is fit to stand trial. He is in the best position to judge at first hand whether his client is able to understand the charge that has been brought against him and to give instructions for his defence. His conclusion that his client is fit to plead will normally be given great weight. The Board will not permit the introduction of the issue for the first time at the final stage unless the evidence points very clearly to the fact that there has been a miscarriage of justice."

A finding prior to or during a trial that a defendant is unfit to stand trial is usually, perhaps always, made on the balance of probabilities: see for example s 14(3) Criminal Procedure (Mentally Impaired Persons) Act 2003 [NZ]. Counsel may therefore be in the position of having to act for a client who only by a narrow margin fails to establish unfitness to plead. There will in such cases be a strong temptation, in the event of a conviction, to look for more persuasive evidence than was offered earlier to establish unfitness. The Privy Council recognises that where the issue was raised at first instance the position on appeal is quite different to that where the issue was not raised. A decision by experienced counsel not to raise at first instance the issue of fitness to plead will be given great weight. Raising the issue at first instance may require counsel to go against the client's wishes and to insist on expert assessment. Mentally impaired clients may be insulted by any suggestion of disability (recognised at [14] of Taitt). Here the obligation to follow instructions may be overtaken by the obligation to act in the client's best interests from the perspective of avoiding a conviction.

A Canadian catch-up

Now it's time to catch up on some recent cases from the Supreme Court of Canada:

R v Prokofiew, 2012 SCC 49 (12 October 2012) concerns counsel for a co-defendant's comments on D's failure to testify and when the judge should direct the jury on D's silence. It was wrong for counsel for the co-defendant to ask the jury to infer D's guilt from his silence at trial. The exercise of a right to silence is not evidence of guilt. The jury could be invited to infer that evidence was credible and reliable if it was uncontradicted, but the judge should direct the jury that there is no requirement that uncontradicted evidence must be accepted.

R v Cole, 2012 SCC 53 (19 October 2012) discusses when there may be a reasonable expectation of privacy in relation to the contents of a computer that was provided by an employer for use at work. The circumstances had to be considered in their totality and ownership was not determinative. An expectation of privacy may be reduced but still reasonable. Here D's reasonable expectation of privacy was breached, but applying the test of admissibility required by s 24(2) of the Charter, admission of the evidence did not bring the administration of justice into disrepute.

R v Boudreault, 2012 SCC 56 (26 October 2012) decides that the offence of having care and control of a motor vehicle while impaired requires a realistic, not merely a theoretical, risk of danger, and whether this exists is a question of fact. Here D fell asleep in a parked vehicle while sitting in the driver's seat with the engine running so that the heater worked, while awaiting the arrival of a taxi. There was held to be no real risk of danger on these facts.

R v Nedelcu, 2012 SCC 59 (7 November 2012) focuses on when evidence is "incriminating". It is not incriminating if it does not tend to prove guilt but merely questions D's credibility. Here, evidence disclosed during pre-trial civil procedures was sought to be used in a criminal trial.

Dineley v R, 2012 SCC 58 (2 November 2012) concerns when retrospective legislation can be interpreted to apply to current proceedings. The key is not whether the legislation is procedural or substantive, but rather whether it changes substantive rights. Retrospective effect is only given – where this is a question of interpretation – in exceptional circumstances if it affects vested or substantive rights. Here the legislation purported to remove a defence.

Risks, numbers and criminal responsibility

In R v Mabior, 2012 SCC 47 (5 October 2012) the Supreme Court of Canada playfully leaves us to calculate what a "realistic possibility" means in terms of probabilities, in the context of transmission of HIV virus by vaginal sexual intercourse.

Courts are inclined to put things in words, not numbers. This case explains that the phrase "significant risk of serious bodily harm" in this context means "a realistic possibility of transmission of HIV".

The relevant legislation, s 265(3) Criminal Code RSC 1985, C-46, uses the word "fraud": a complainant does not consent if he or she does not resist or submits by reason of fraud. Here, the defendant did not disclose that he had HIV when he obtained agreement to sexual intercourse. His viral load was low, and in he used a condom with one of the four complainants.

The element of fraud had been interpreted as requiring that the defendant dishonestly deprived the complainant of knowledge about a significant risk of serious bodily harm. Now this risk is explained as a realistic possibility of transmission of HIV.

For the New Zealand law (inaccurately referred to at [50]-[54] of Mabior) see s 128A(7) Crimes Act 1961, which provides that consent is not given by a person who is "mistaken" about the nature and quality of an act.

I expect that this NZ provision, introduced in 2005, will be interpreted to mean that a mistake, in a context like that in Mabior, is a failure to recognise a realistic possibility of transmission of HIV.

McLachlan CJ for the Court stressed that what facts give rise to a realistic possibility of HIV transmission will vary as research increases knowledge. The risk assessments may change. But the evidence in the case disclosed the current understanding of what the relevant risks are.

Broadly, and converting the figures given in the judgment [94]-[101], the evidence was that the probability of transmission of HIV infection during unprotected sexual intercourse may be as high as 0.008 or as low as 0.0005. That is, 8 in 1000, or 5 in 10,000. If a condom is used, the risk reduction is 80%, so at the highest the probability of transmission would be 0.0016. If therapy had reduced the viral load, as it had in this case, to a low level, the risk of transmission may be reduced by roughly 92%, so that if a condom is used the probability of transmission would then be 0.000128. If a condom is not used but the viral load is low, the probability of transmission is 0.00064.

I have just used rough figures as ranges were given for the risk of transmission in unprotected intercourse and for the effect of therapy. But the result of the appeals was that reduced viral load plus use of a condom resulted in a risk of transmission of HIV that was less than "a realistic possibility", whereas reduced viral load but without use of a condom resulted in a risk of HIV transmission that was "a realistic possibility".

That is, "a realistic possibility" is greater than a probability of 0.0001, but a probability of 0.0006 is "a realistic possibility" of HIV transmission.

The context is important: where the consequences are serious the acceptable risk may be lower. If we suppose that the consequences in the HIV transmission context are serious (this may change as therapies develop) we can conclude that the Court is regarding an appropriately low risk of transmission for the purposes of attributing criminal responsibility as one that carries a probability of 0.0006.

How does that compare to life's other risks of death? Well, a few second's Googling indicates that in the UK the average risk of death in any one year from injury or poisoning is 1 in 3137, or a probability of 0.0003. The risk of dying in a road accident in the UK is 1 in 16,800, or a probability of 0.00006. And for cancer death it is 1 in 387, or probability 0.003.

So in Mabior a risk that might have been about ten times the risk of dying in a road accident amounted to a realistic possibility of transmission of HIV. Or about one fifth the risk of dying of cancer.

And, while we are out on this limb, (or "out where the buses don't run", as Kinky Friedman would say), we could use this sort of data as an indication of the level of risk of serious harm that the law considers appropriate for attributing criminal responsibility. Then we should wonder about the probability of wrongful conviction that is sufficient to support a verdict of not guilty. Does it vary according to the harm threatened or caused by the offending? Or is all wrongful conviction equally repugnant?

Don't look at me. How should I know?

For discussion of the meaning of "beyond reasonable doubt" see R v Wanhalla (noted here 25 August 2006, R v JHS, noted here 1 June 2008, and R v Layton, noted here 24 July 2009).

No substitute for money

The Privy Council in Hamilton v R (Jamaica) [2012] UKPC 31 (16 August 2012) gives a useful little reminder on how a court will exercise its discretion to grant an extension of time for filing an appeal.

The judgment is worth reading for its reference to difficulties in getting legal representation when legal aid is either unavailable or highly restricted, particularly in Caribbean states.

The exercise of the discretion to grant an extension of time is described here:

"The circumstances that contribute to the problem of delay in the case of criminal appeals that come before the Board from the Caribbean are exceptional, for all the reasons that have been outlined above. But the question for the Board is no different. In these cases, too, the overriding consideration will be whether it is in the interests of justice that the time limit should be extended. Weight will always be given to the merits of the appeal and to the severity of the sentence. The stronger the case appears to be that the appellant may have suffered a serious miscarriage of justice, the less likely it will be that the application will be rejected on the ground that it is out of time. The Board will also be sympathetic to the problems faced by death sentence prisoners, and those in non-capital cases who have been sentenced to very long periods of imprisonment, who have to rely on the services of those who provide legal services pro bono. Those who provide such services free of charge have other demands on their time. So, while they will be expected to progress their cases as quickly as possible, it would be unreasonable to expect them to adhere to the same exacting standards as are expected of those who provide professional services for remuneration."

There are potentially insoluble problems for people serving sentences that are not particularly long and which may well be completely served by the time legal assistance for an appeal against conviction and sentence is obtained. The administrators of legal aid services may be reluctant to grant aid if a sentence is not long. Lawyers may be reluctant to accept instructions on legal aid if remuneration is low, particularly as the risk of being accused of negligence or worse is ever-present. There is no substitute for money when it comes to making the legal system work.

Morality and the scope of criminal liability

Manslaughter by dangerous act, or by an omission to perform a legal duty, was considered by the High Court of Australia in Burns v The Queen [2012] HCA 35 (14 September 2012). The death occurred after consumption of methadone, and the defendant (appellant) could have been liable for supplying the drug, for administering the drug, or for failing to render assistance to the victim in circumstances which gave rise to a duty of care. It was not possible to say why the jury had convicted the defendant. In the High Court the Crown conceded that the defendant could not be liable on the basis of supply of the drug. The Court unanimously held there was no basis in the facts for conviction for breach of a duty of care, and the majority (Heydon J dissenting) held that the facts did not exclude the possibility that the victim administered the drug to himself. The conviction was quashed and an acquittal entered.

The case is of interest for its illustration of the difference between moral and legal duties. While most people might think that a person who supplied an unlawful and dangerous drug to another owed a duty of care to that person to do what was reasonable in the interests of safety, there are difficulties in establishing a legal duty to do the same.

French CJ referred [22] to the "taxonomy" of the duties of care that may support a charge of manslaughter in cases like this: where a statute imposes a duty, where the duty arises from a certain status relationship, where the duty arises from contract, and where one person voluntarily assumes the care of another, secluding that other and preventing third persons from rendering aid. There may also be a duty of care where the defendant has caused a sequence of events which gave rise to a risk of injury.

Here there was [46] no statutory duty, no status relationship, no contract. On the facts the defendant had not assumed responsibility for care of the victim and had not secluded him so as to prevent others rendering assistance. As to creating a causative sequence of events giving rise to risk of injury, on the facts it was possible that the victim had injected himself with the drug [47] and he may even have rebuffed a suggestion that an ambulance should be called [48].

The joint judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ pointed [106] to difficulties with the proposition that those who unlawfully supply dangerous drugs have a duty to people they supply. What would discharge the duty of care? Supplying clean needles and syringes? Supplying information about levels of safe use? Ordinarily the supplier will have no control over how the recipient uses the drug. Is the duty (as was accepted in the appeal court below) confined to use of the drug in the supplier's presence? This, said the joint judgment, looks like imposing a duty because "it is an affront to morality that the supplier of a prohibited drug should not bear responsibility for the callous disregard for the life of the drug user." The absence of control counted against the imposition of a duty of care, and [107]

"... courts must be circumspect in identifying categories of relations that give rise to a previously unrecognised legal obligation to act [footnote: See, eg, R v Sinclair, Johnson and Smith unreported, England and Wales Court of Appeal (Criminal Division), 21 August 1998; B Hogan, "Omissions and the duty myth", in Smith (ed), Criminal Law: Essays in Honour of J C Smith, (1987) 85 at 87]."

So it was a matter for the legislature, not the courts, to develop the law on the liability of drug suppliers for harm to users ([108], Heydon J agreeing at [131]).

I should add that there is a useful discussion of liability for omissions by Andrew Ashworth QC, "Public Duties and Criminal Omissions: Some Unresolved Questions", available at the Association of Commonwealth Criminal Lawyers website. For legislative developments in New Zealand, see Crimes Act 1961, s 150A and the sections referred to therein.

Another decision of the High Court of Australia touching on the scope of criminal responsibility was delivered the same day: Likiardopoulos v The Queen [2012] HCA 37 (14 September 2012). It is noteworthy for these points:

• French CJ was careful to distance himself from any (obiter) suggestion that the decision to prosecute is never reviewable.
  
• A person can be a secondary party to a greater offence even though the principal offender was convicted of a lesser offence. A lesser conviction does not of itself provide a shield for another person. If the prosecution can show that the principal did commit the greater offence, the defendant could be a party to that. The principal is not in jeopardy of conviction for the greater offence.
  
• The charging of the defendant as a secondary party to the commission of a more serious offence than that for which the principal was convicted does not of itself give rise to abuse of process or unfairness, especially where, as here, when the plea to the lesser offence was accepted there was insufficient evidence to charge the principal with the greater offence. The moral culpability of the secondary offender was, here, greater than that of the principal(s) in view of his being much older [joint judgment, 39].
  
• A revision of the law of complicity could result in too great a change – retrospective and adverse to the interests of defendants - for the courts to introduce and should be left to the legislature (Heydon J agreeing, [43]). The limit of secondary liability is set by the offence actually committed.
  

This last point was a response to the prosecution submission that liability of all secondary parties should be determined by their mens rea. That would mean that if the secondary party had the mens rea for murder, but murder could not be proved against the principal, the secondary party would be guilty of murder. The difference from this case is that the prosecution would not need to establish mens rea on the part of the principal offender. That would mean that even if the evidence was no stronger than it had been against the principal party when the plea to the lesser charge was accepted, the secondary party could still be convicted of murder. Should the secondary offender benefit from a fortuitous lack of evidence in relation to the principal offender, or should the same requirements of actus reus and mens rea apply to both principals and secondary parties? To what extent should the maxim actus non facit reum nisi mens sit rea apply – should the secondary party's guilty mind make the principal's act guilty in relation to the secondary party? Currently the law says there is only an actus reus if the principal has mens rea.

Judge-alone trials and reasons for verdicts

Today the High Court of Australia has held inadequate the reasons given at a judge alone trial for convicting the defendant (appellant): Douglass v The Queen [2012] HCA 34 (11 September 2012). Further, the High Court quashed the conviction and did not order a retrial. That was because the evidence was insufficient to prove the defendant's guilt beyond reasonable doubt.

It is a fundamental mistake to say that where a criminal case involves an accuser and a defendant who denies the accusation, it is a case of one person's word against another's. It is, instead and as usual, a case of whether the evidence is sufficient to prove guilt beyond reasonable doubt. If, as here, a judge says he prefers the complainant's evidence, that is not the same as saying he finds the complainant's evidence sufficient to prove guilt beyond reasonable doubt.

Reasons given by a judge for convicting a defendant must be sufficient to show an appellate court that the judge has correctly applied the law: R v Keyte [2000] SASC 382. For the same point over here, see Connell v Auckland City Council [1977] 1 NZLR 630, Chilwell J, R v McPherson [1982] 1 NZLR 650 (CA) per Somers J at 652, and R v Atkinson [1984] 2 NZLR 381 (CA) judgment of the Court delivered by Hardie Boys J at 383, emphasising the need to demonstrate that the judge has applied the correct standard of proof.

In Douglass there were some difficulties with the complainant's evidence: she initially denied that the offending had occurred, she was inconsistent as to the location at which it had occurred, and her accusations were obtained by leading questions. The judge had not explained why, despite these difficulties, he had found her evidence to be truthful and reliable. He did specify two reasons for accepting her evidence, but the High Court criticised these: he thought she was unlikely to have made up the accusations, but the High Court pointed out that she had described similar behaviour by another man so invention was not as unlikely as the judge had thought, and her firmness in cross-examination indicated truthfulness, but the High Court did not think that this necessarily followed.

The defendant had given evidence and had called a supporting witness, but the judge did not give reasons for rejecting that. The judge should have explained why the defence evidence did not raise a reasonable doubt.

There is a bit of obscurity in the High Court's judgment (only one judgment in this case - Heydon J not being on this bench) over truthfulness and reliability. This was not the sort of case where the complainant could have been mistaken over the identity of the alleged offender, or mistaken over the alleged acts. The Court used the term reliability to mean sufficient to prove the charge. The trial judge may have used the description of the complainant's evidence as "credible and reliable" as a way of saying it was truthful, but the High Court said [15] that accepting the evidence as true was not the same as accepting it as sufficient to prove the charge. On the facts of this case it is difficult to see why not. My impression is that the Court was really saying that the difficulties with the complainant's evidence meant that it lacked the necessary probative value to establish guilt beyond reasonable doubt.

The High Court took a provision in the relevant evidence legislation, to the effect that a warning is not required about the special need for caution in relation to the evidence of a child complainant, as an indication that child witnesses are not to be regarded as a special class of witness, and it rejected [44] a submission that it was appropriate to consider published research on the reliability of child complainants. This was because here the issue was the sufficiency of the complainant's evidence. But in view of the obscurity I mentioned above, it is not clear why the reliability of the complainant's evidence should not be assessed in the context of specialist research on factors affecting or not affecting the reliability of child witnesses. The issue was, after all, the reliability of the complainant "as an historian" [47].

Overwhelmed by prejudicial evidence

When is an error at trial insufficient to require an appeal court to quash a conviction?

The more the attention that is given to this question, the more difficult it is to answer. At least, that was the experience of appeal courts in the 2000s. Before then this question had gone largely unexamined, and appeals were decided with appellate courts deciding apparently intuitively whether miscarriages of justice were substantial enough to require the quashing of convictions.

I have considered this in discussing Weiss v The Queen [2005] HCA 81 on 16 January 2006, and see also the discussion of Grant v R (Jamaica) [2006] UKPC 2 on 20 January 2006. A difficulty was when should the appeal court act like a jury and consider the evidence and dismiss an appeal because despite the error at trial the evidence was sufficient to convict? See Bain v R (New Zealand) [2007] UKPC 33, discussed here on 11 May 2007.

The Weiss approach has been followed with minor adjustment in New Zealand: Matenga v R [2009] NZSC 18, discussed here on 9 July 2009.

An unattractive aspect of the Weiss approach is that it seemed to say that the appellate court may dismiss an appeal notwithstanding an error at trial if it considers that the evidence was sufficient to support a conviction. Obviously the ends (conviction of a person who is plainly guilty) cannot justify the means (never mind whether the trial was fair). To avoid that unpleasantness two requirements had to be met before a conviction could be upheld: the trial had to have been fair notwithstanding the error, and the evidence of guilt had to have been sufficient.

So, when does an error not affect the fairness of the trial? It is difficult to generalise without a definition of "fair trial". I tirelessly suggest one here.

Yesterday the High Court of Australia dealt with an appeal in which the errors at trial had been so substantial that it was unnecessary, indeed impossible, for the Court to address the sufficiency of the evidence: Patel v The Queen [2012] HCA 29 (24 August 2012). The appeal was allowed because no weight could be given to the verdict, the jury were overwhelmed by the prejudice created by the admission of evidence that, because of a change in the prosecution case, was inadmissible, and the proviso didn't apply: joint judgment of French CJ, Hayne, Kiefel and Bell JJ at [128]-[130]. Heydon J separately agreed, holding at [260] that there had been a departure from the requirements of a fair trial to such an extent that the court could not justly assess the strength of the case against the appellant, applying Gleeson CJ in Nudd v The Queen [2006] HCA 9, discussed here on 9 March 2006.

This seems to me to be a case where the unfairness was the rendering of the jury partial – that is, not impartial – through the introduction of evidence that would prejudice its judgment against the defendant.

Heydon J noted two difficult questions that did not have to be answered in this appeal [262]: to what extent should a judge disallow the introduction of evidence although no party objects to it, and when should a judge require the prosecution to provide particulars although they were not sought by the defence?

I suggest the answer to those is indicated by the meaning of a fair trial. But until judges get down to explaining what a fair trial means we are left to define it for ourselves.

I should add that in New Zealand we have revised the conviction appeal criterion by abolishing the proviso and defining miscarriage of justice to include errors that result in unfair trials: Criminal Procedure Act 2011, s 232 (not yet in force). Again, there is no definition of fair trial.

And now we are eight!

And that is 8 years of this site's existence.

It isn't really a blog in the sense of an invitation to readers to post comments. Instead it is an online casebook on criminal law. It now has commentary on over 500 cases from the leading appellate courts in New Zealand, Australia, Canada, the USA, the UK and the European Court of Human Rights.

My purpose is to promote scholarship and research in criminal law. For a given topic you can consult the Index which refers to the relevant cases and the dates on which commentary was posted. Or if you just want to know if there is commentary on a particular case, enter one word from its title in the search box on this page.

This site is not designed to make money, and there is no information here on how to contact me. It is just an attempt to show how interesting criminal law as a technical discipline can be. But it's not written anonymously because commentary needs to be responsible and readers should have an opportunity to assess the author's qualifications.

I have given the Blogger version of this site (http://www.nzcriminallaw.blogspot.com ) a title that now includes the word casebook; the mirror site retains its old title as I haven't figured out how to change it (http://www.donmathias.wordpress.com ).

When can one defendant rely on another defendant’s statement to the police?

If two defendants, A and B, are on trial together, when can A rely on part of B's statement to the police if B does not give evidence?

Broadly, once evidence is admissible it can be used for all purposes at trial unless there is a specific restriction: Hart v R [2010] NZSC 91 at [54]. Does s 27 of the Evidence Act 2006 provide for a restriction? Its first subsection says:

"Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but not against a co-defendant in the proceeding."

Does this prevent the defence "offering" it? ("Offer evidence" is defined inclusively and widely in s 4.) Plainly no, although this has been controversial. Difficulties have concerned the meaning of "against". The answer seems to be that which is given in Leslie-Whitu v R HC Rotorua CRI-2009-263-163, 5 October 2011, Woolford J (not available online): s 27 does not prevent A relying on B's statement, but the statement is hearsay in relation to A. Since the evidence in relation to A must be considered separately from that in relation to B in a joint trial, A must rely on the hearsay provisions to get B's statement admissible in his case. As hearsay the rule is that it would be inadmissible, but there are exceptions, the main one of which is s 18 of the Evidence Act 2006.

The criterion in s 18 when B is unavailable, as he would be if he chose not to give evidence, is that "the circumstances relating to the statement provide reasonable assurance that the statement is reliable". The "circumstances" are defined in s 16.

I don't know whether that is the best answer. It creates an uneven playing field in that to use B's statement A must overcome the "reasonable assurance" of reliability threshold in s 18, whereas the usual requirement for admissibility is relevance, s 7, which has a low threshold: Wi v R [2009] NZSC 121, mentioned here on 11 August 2012. If the prosecution can get the statement admitted under s 27 (overcoming any objections based on unreliability, s 28, oppression, s 29, and impropriety, s 30) then A should be able to use it too without further restriction.

I suggested in a New Zealand Law Society Seminar that arguably the admissibility of B's statement for A's case should be governed by the common law fairness considerations.

Yesterday the High Court of Australia touched upon this in a common law context: Baker v The Queen [2012] HCA 27 (15 August 2012). However here B's statement did not really exculpate A: see Heydon J at [70]-[76]. But basically the Court said, "Aw fieck orf moit" (I assume Australians all sound like Hughsey).

The case illustrates how the common law has diverged in various jurisdictions. Canada and England (see Baker at [54], [88]) have expanded the hearsay exceptions to permit use of B's statement by A if it is apparently reliable, but as the judgments in Baker show, there are difficulties in establishing reliability in this context.

I still think use of the hearsay exception here is inappropriate because it is only by chance that B's statement is hearsay – at least under our statutory definition of hearsay which does not include within it statements made previously by a witness (see the definition of "hearsay statement" in s 4). If B gives evidence he is a witness so it is not hearsay, whereas if he does not give evidence it is. Should the trial tactics of one party govern the admissibility of evidence for another? And if the prosecution can rely on B's exculpation of A and argue it is a lie demonstrating B's guile, why can't A rely on it and argue it is a glimpse of B's truthfulness?

The common law position is different because the definition of hearsay is not dependent on whether the maker of the statement, B, gives evidence. Baker remains of interest for its emphasis on the difficulties in applying a criterion of reliability.

Scholarly and incite-ful

A small but fascinating point of general interest arises in The Queen v Khazaal [2012] HCA 26 (10 August 2012). If a defendant has the evidential burden of showing an innocent purpose, can evidence of general good character be sufficient to meet that burden?

The defendant in Khazaal compiled articles from other authors, edited them with his own introduction and published them under a pseudonym as an electronic book. The book contained advocacy of violence, but Mr Khazaal had a statutory defence if his publication was not intended to facilitate assistance in a terrorist act (see [48] and [51] of the joint judgment). The evidential burden here means the burden of adducing or pointing to evidence that suggests a reasonable possibility that his purpose was innocent.

Mr Khazaal suggested that his purpose was scholarly and peaceful, and he relied partly on the book itself to meet his evidential burden. The High Court unanimously held that the evidence relied on was not inconsistent with the alleged purpose of facilitating violence (French CJ at [19], Gummow, Crennan and Bell JJ at [77], Heydon J at [110]). Mr Khazaal also relied on his past pursuit of lawful activities as a journalist and argued that the book was written in that vein, however there was insufficient evidence to support that connection [111].

So, more generally, when does evidence of good character tend to prove a matter in issue? The New Zealand Supreme Court looked at this in Wi v R [2009] NZSC 121, holding that absence of previous convictions has sufficient probative force to meet the requirement of relevance (s 7 of the Evidence Act 2006) but in a particular case it may have only a slight tendency to prove a matter of consequence [19]. I mentioned Wi in the update to my note on Maye v R (Jamaica) [2008] UKPC 35.

Just a little bit of probative value is sufficient to meet the relevance requirement. This does not mean that almost anything goes, because the court can exclude evidence under s 8 if its prejudicial effect outweighs its probative value. Would that little bit of probative value be sufficient to meet the evidential burden of raising a defence? How much "tendency to prove" does the evidential burden require. Probably this is best expressed as a tendency sufficient to raise a reasonable possibility that the issue favours the defendant.

Here we drift further from the facts of Khazaal, like French CJ's ships passing in the night [12]. Imagine that 10% of scholars support violence, and 90% do not. Does evidence that D is a scholar mean that we can be 90% sure he does not support violence? Of course not. Relevance must not be confused with probative value. Yes, evidence that D is a scholar is relevant in the sense that D is using it to support the proposition that it tends to suggest he is not advocating violence. But the probative value (ignoring the separate question of rebuttal by evidence that D's actual writing did in fact advocate violence) of being a scholar requires consideration of different things.

First, one looks at the population of people who advocate violence, and asks what proportion of them are scholars. Then one looks at the population of people who do not advocate violence, and asks what proportion of them are scholars. This allows one to compare the proportion of scholars among the advocates of violence with the proportion of scholars among peaceful people. That tells one whether being a scholar is more consistent with advocating violence than it is with being peaceful. The probative value of the fact of D being a scholar is this comparison of proportions.

This is not how judges reason, but the result is the same in Khazaal. French CJ pointed out that mere consistency with innocent purpose is insufficient to tend to prove innocent purpose [18]-[20]. That is, scholars exist in both the population of advocates of violence and peaceful people, and their existence among peaceful people does not of itself have probative value for the proposition that D was peaceful. I suspect that he was wrong to adopt McClennan CJ at CL's phrase "the evidence ... was entirely neutral", because really the evidence was incomplete: it needed a context. The Court wanted more information about D's scholarly writing and about whether that was consistent with the writing which was the subject of the allegations.

It is appropriate to reject general probabilistic reasoning when specific evidence relevant to a particular case can be obtained. This is the Schrödinger's cat metaphor: once the box is opened and we look inside, the cat's being dead or alive is no longer a question of probabilities. If D kept the box closed, he needed to assist the court more with probabilities, and if he opened the box, he needed to demonstrate that this writing was in line with his other work.