CTM v R [2008] HCA 25 (11 June 2008) is another illustration of one of the irritating things about multi-judge cases.
The joint decision of Gleeson CJ, Gummow, Crennan and Kiefel JJ reads very convincingly, and we are left to wonder how anyone could dissent from its conclusion. The existence of honest (and reasonable) mistake was held to negative an element of the offence of having sexual intercourse with an underage person. But on the facts here the accused had not raised the issue at trial. The conviction was upheld.
Turning to the almost inevitable dissent of Kirby J, which was not referred to in the joint judgment, we see the case in a rather different light. Now it looks as though something went wrong: although the accused had not given evidence, in his interview with the police, that was part of the prosecution case, he had said he thought the girl was aged 16; that would have amounted to an absence of the state of mind that was necessary for commission of the offence. In Kirby J’s view, the Court should have ordered a retrial.
What are we expected to think? Plainly, that the majority are right, but why?
Hayne J agreed with the joint judgment, that the trial judge had misdirected the jury but that there was no substantial miscarriage of justice as no issue about the relevant mental element was raised at the trial. He did not refer to Kirby J’s reasoning. However, he does explain his basis for concluding that the issue of knowledge was not raised at trial:
“194 Without more, the fact that the appellant was proved to have made an out-of-court assertion about his belief as to the complainant's age was not sufficient to raise an issue at his trial about mistake. In his interview with police, the appellant had said that he believed the complainant was aged 16 years because she had told him this. No question about this alleged conversation or about any communication she may have had with the appellant about her age was directed to the complainant in the course of her evidence. Not having raised the matter with the complainant in the course of her evidence, it was not then open to the appellant, relying only on what he had told police, to say that there was a live issue at the trial about his belief about the complainant's age. To enliven the issue it was essential that the complainant be asked whether there had been a conversation of the kind described by the appellant to police. But not having raised the matter with her, it was not open to the appellant to say that the evidence elicited in the course of the prosecution's case sufficed to enliven the issue.” [emphasis added]
On this, Kirby J held that the issue had been raised:
“108 The necessity to "enliven the issue": By enlarging the obligation upon the accused to give, or adduce, evidence so as to "enliven the issue", the majority in this Court have departed from the Court's previous statements about the respective roles of the prosecutor and the accused. More fundamentally, they have increased the burden on the accused at the trial in a manner inconsistent with its accusatorial character and with the "golden thread" of which Viscount Sankey LC spoke in Woolmington[[1935] UKHL 1; [1935] AC 462 at 481].
“109 The particular suggestion that the appellant failed to "enliven the issue" because his counsel omitted to question the complainant about her age … illustrates this basic point. The appellant's counsel was perfectly entitled to present his case in terms of a denial that sexual intercourse took place at all, a course chosen no doubt on instructions and understandable for forensic reasons. He was not obliged to take a different course in order to "enliven an issue" of honest and reasonable mistake. The "issue" had an independent foundation in the evidence on the record. That foundation was adequate to allow counsel to "rais[e] the question"[He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523 at 593].”
Heydon J took a different view of the statutory interpretation exercise, and held that the appeal should be dismissed because there was no defence of absence of knowledge of the girl’s age.
The interesting part of the case, on which Kirby J dissented, is the holding that where a defence of absence of mens rea is based on what a witness has said to the accused, that matter must be put to the witness, even if the primary defence at trial is absence of actus reus. There is a duty to put the entire case by cross-examination of the appropriate witnesses.
Friday, June 13, 2008
The travelling writ
An appreciation of the pioneering impact of Boumediene v Bush [2008] USSC No 06-1195 (12 June 2008) can be obtained from the closing remarks of Scalia J (dissenting, joined by Roberts CJ, Thomas and Alito JJ):
“Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.
“The Nation will live to regret what the Court has done today. I dissent.”
It is the extension of the privilege of applying for the writ of habeas corpus to aliens abroad that is the central point in the majority decision (Kennedy J, joined by Stevens, Souter, Ginsburg, and Breyer JJ). But of more general interest to criminal lawyers are the reasons that the procedural protections that are in place for detainees at Guantanamo Bay fall short of what would be sufficient to displace the need for habeas corpus review.
These shortcomings are:
These procedural defects create “a considerable risk of error in the tribunal’s findings of fact” (Kennedy J at p 56), a risk too significant to ignore, especially as the detention is of indefinite duration. Such errors would, in each case, go to the legitimacy of the detention; without an adequate substitute for review by a court on habeas corpus, the statute removing the privilege of the writ was unconstitutional.
“Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.
“The Nation will live to regret what the Court has done today. I dissent.”
It is the extension of the privilege of applying for the writ of habeas corpus to aliens abroad that is the central point in the majority decision (Kennedy J, joined by Stevens, Souter, Ginsburg, and Breyer JJ). But of more general interest to criminal lawyers are the reasons that the procedural protections that are in place for detainees at Guantanamo Bay fall short of what would be sufficient to displace the need for habeas corpus review.
These shortcomings are:
- Absence of legal representation
- A presumption that the Government’s evidence is valid
- An absence of limits on the use of hearsay evidence deemed relevant and helpful by the tribunal, rendering the opportunity to question Government witnesses more theoretical than real
- Limitations on a detainee’s ability to rebut the Government’s evidence
- Inability to cure procedural defects by appeal process
These procedural defects create “a considerable risk of error in the tribunal’s findings of fact” (Kennedy J at p 56), a risk too significant to ignore, especially as the detention is of indefinite duration. Such errors would, in each case, go to the legitimacy of the detention; without an adequate substitute for review by a court on habeas corpus, the statute removing the privilege of the writ was unconstitutional.
Thursday, June 12, 2008
Lioness or Alsatian?
Does the standard of proof of a fact change according to the seriousness of its consequences?
The common law recognises only two standards of proof: the balance of probabilities, and beyond reasonable doubt. Lord Carswell made this observation yesterday in In re Doherty [2008] UKHL 33 (11 June 2008) at para 23.
The standard of proof on the balance of probabilities does not vary according to the gravity of the issue: obviously, where something is inherently unlikely, it will be more difficult to establish on the balance of probabilities that it happened, but the standard is the same as for all cases where that standard of proof applies. Lord Carswell, with whom all the other Law Lords agreed, cited at para 26 Lord Hoffmann’s “lion or Alsatian” illustration in para 55 of Secretary of State for the Home Department v Rehman [2001] UKHL 47, [2003] 1 AC 153:
“I turn next to the commission's views on the standard of proof. By way of preliminary I feel bound to say that I think that a 'high civil balance of probabilities' is an unfortunate mixed metaphor. The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard. But, as Lord Nicholls of Birkenhead explained in In re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563, 586, some things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent's Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not.”
The standard of proof referred to in Doherty concerned an allegation of offending that had been made about a person who had been sentenced to life imprisonment where the ultimate issue was whether it was consistent with the safety of the community that he again be released on parole. The House of Lords held that the tribunal, the Life Sentence Review Commissioners, had correctly applied the standard of proof on the balance of probabilities to this issue.
Lord Brown, agreeing with Lord Carswell, added that it was appropriate to highlight a difficulty concerning the relevance of the consequences for a party if the issue was proved against him: this should not be relevant to whether the standard of proof had been met. The only relevant consideration was the inherent probability of the fact in issue. He recognised however, para 48, that there are some dicta that suggest otherwise, particularly B v Chief Constable of the Avon and Somerset Constabulary [2001] 1 WLR 340, per Lord Bingham as LCJ at para 41, and that hold that where the issue has serious consequences for the party adversely affected, the civil standard of proof becomes almost indistinguishable from the criminal standard. As to this, Lord Brown observed:
“ … I question whether it would not have been more logical and appropriate to have decided that the making of the various orders calls for the criminal standard of proof to be satisfied in the first place. Certainly, once it became established, as finally it was in In re H, that there is no such thing as an intermediate standard of proof, logic surely demanded that one standard or the other be applied and common sense dictates the rest.”
Lord Neuberger agreed with Lord Carswell and also with Lord Brown, so this point has the authority of at least two of the Law Lords in In re Doherty; the others (including Lord Bingham) did not mention it.
Clarification of the fixed nature of the standards of proof does not clear up confusion about when a standard of proof applies. Questions of admissibility of evidence depend on the existence of facts, and it is not always clear whether a standard of proof of those facts applies. In Jiang v R (blogged here 5 July 2007) the New Zealand Supreme Court held that admission of evidence pursuant to the co-conspirators’ exception (also known as the preconcert exception) to the rule excluding hearsay requires “reasonable evidence” of the existence of the common enterprise and the participation of the relevant accused person in it. How does “reasonable evidence” compare with the “balance of probabilities”: is it a higher or a lower standard? Is it a third standard of proof?
And when does any standard of proof apply? Some decisions are described as matters of judgment not amenable to any particular standard of proof. Balancing exercises commonly occur when the court has to compare the probative value of evidence against its illegitimately prejudicial effect, and no particular standard of “proof” seems to apply to that exercise. Even recently established statutory schemes can be vague: for example the exclusion of improperly obtained evidence can occur if the impropriety is proved on the balance of probabilities and then if the court determines (no standard specified) that exclusion would be a proportionate response to the impropriety: s 30 Evidence Act 2006[NZ].
Some people think it is inappropriate to apply a standard of proof to anything other than a determination of fact. Many decisions are matters of judgment, about which all it can be said is that the court must be “satisfied”. The Jiang approach is not saved by this, because there the preconditions for admissibility are matters of fact, but one can more readily see that in balancing probative value against prejudicial effect the court is exercising its judgment. It will decide, for example, that the probative value of the evidence does outweigh the risk of improper prejudice that would arise from its admission. The trouble is, one can always ask, how sure of that are you?
In In re B (Children) [2008] UKHL 35 (11 June 2008) issues that overlapped those in In re Doherty were considered. Lord Hoffmann made it clear, para 2, that sometimes a legal rule requires a fact to be proved. Such a fact is called a fact in issue. Here, it was necessary to decide whether a child was “likely to suffer significant harm”, and this, as Baroness Hale (with whom all the other judges agreed) said, at para 22, is a prediction from existing facts. The issue was, to what standard did those existing facts have to be proved? These were, as Lord Hoffmann described them, facts in issue. The question was, what was the standard of proof of them “that is to say, the degree of persuasion which the tribunal must feel before it decides that the fact in issue did happen” (para 4). It was the balance of probabilities; there is only one civil standard of proof (para 13).
Lord Hoffmann carefully described the confusion that has occurred in the cases, and Lord Rodger and Lord Walker expressed their agreement (and also agreed with Baroness Hale). Essentially the confusion has concerned what Lord Nicholls meant in In re H (above) when he referred to heightened probabilities being required for proof of unlikely facts. Lord Hoffmann explained (para 12) that Lord Nicholls did not mean that where a serious allegation is in issue the standard of proof required is higher, notwithstanding that in R (McCann) v Crown Court at Manchester [2003] 1 AC 787, 812 Lord Steyn appears to have thought he did.
Baroness Hale laid to rest the misconception about what Lord Nichols had meant (para 64):
“My Lords, … Lord Nicholls' nuanced explanation left room for the nostrum, "the more serious the allegation, the more cogent the evidence needed to prove it", to take hold and be repeated time and time again in fact-finding hearings in care proceedings …. It is time for us to loosen its grip and give it its quietus.”
And concluded (para 70):
“… the standard of proof in finding the facts necessary to establish the threshold under [the relevant legislation here] is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.”
While the composition of the Appellate Committees in the two cases decided yesterday was different, with only Lord Scott being on both, there was obviously some discussion in the tea room. Lord Carswell’s assertion that the standard of balance of probabilities is finite and unvarying (in In re Doherty, para 28) is in harmony with Lord Hoffmann’s assertion that there is only one civil standard (In re B (Children) at para 13) and with Baroness Hale’s rejection of the idea that this standard can shift according to seriousness of the either the allegation or the consequences. In both cases there is support for the application of the criminal standard of proof in civil cases where the consequences of the finding of the fact in issue are particularly serious, but that would not be achieved by altering the level of proof required to satisfy the civil standard, and these cases did not call for application of the criminal standard.
The ECtHR has rejected the idea that stronger evidence is required to meet a specific standard of proof where the issue is serious: Saadi v Italy [2008] ECtHR 179 at 140.
The common law recognises only two standards of proof: the balance of probabilities, and beyond reasonable doubt. Lord Carswell made this observation yesterday in In re Doherty [2008] UKHL 33 (11 June 2008) at para 23.
The standard of proof on the balance of probabilities does not vary according to the gravity of the issue: obviously, where something is inherently unlikely, it will be more difficult to establish on the balance of probabilities that it happened, but the standard is the same as for all cases where that standard of proof applies. Lord Carswell, with whom all the other Law Lords agreed, cited at para 26 Lord Hoffmann’s “lion or Alsatian” illustration in para 55 of Secretary of State for the Home Department v Rehman [2001] UKHL 47, [2003] 1 AC 153:
“I turn next to the commission's views on the standard of proof. By way of preliminary I feel bound to say that I think that a 'high civil balance of probabilities' is an unfortunate mixed metaphor. The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard. But, as Lord Nicholls of Birkenhead explained in In re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563, 586, some things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent's Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not.”
The standard of proof referred to in Doherty concerned an allegation of offending that had been made about a person who had been sentenced to life imprisonment where the ultimate issue was whether it was consistent with the safety of the community that he again be released on parole. The House of Lords held that the tribunal, the Life Sentence Review Commissioners, had correctly applied the standard of proof on the balance of probabilities to this issue.
Lord Brown, agreeing with Lord Carswell, added that it was appropriate to highlight a difficulty concerning the relevance of the consequences for a party if the issue was proved against him: this should not be relevant to whether the standard of proof had been met. The only relevant consideration was the inherent probability of the fact in issue. He recognised however, para 48, that there are some dicta that suggest otherwise, particularly B v Chief Constable of the Avon and Somerset Constabulary [2001] 1 WLR 340, per Lord Bingham as LCJ at para 41, and that hold that where the issue has serious consequences for the party adversely affected, the civil standard of proof becomes almost indistinguishable from the criminal standard. As to this, Lord Brown observed:
“ … I question whether it would not have been more logical and appropriate to have decided that the making of the various orders calls for the criminal standard of proof to be satisfied in the first place. Certainly, once it became established, as finally it was in In re H, that there is no such thing as an intermediate standard of proof, logic surely demanded that one standard or the other be applied and common sense dictates the rest.”
Lord Neuberger agreed with Lord Carswell and also with Lord Brown, so this point has the authority of at least two of the Law Lords in In re Doherty; the others (including Lord Bingham) did not mention it.
Clarification of the fixed nature of the standards of proof does not clear up confusion about when a standard of proof applies. Questions of admissibility of evidence depend on the existence of facts, and it is not always clear whether a standard of proof of those facts applies. In Jiang v R (blogged here 5 July 2007) the New Zealand Supreme Court held that admission of evidence pursuant to the co-conspirators’ exception (also known as the preconcert exception) to the rule excluding hearsay requires “reasonable evidence” of the existence of the common enterprise and the participation of the relevant accused person in it. How does “reasonable evidence” compare with the “balance of probabilities”: is it a higher or a lower standard? Is it a third standard of proof?
And when does any standard of proof apply? Some decisions are described as matters of judgment not amenable to any particular standard of proof. Balancing exercises commonly occur when the court has to compare the probative value of evidence against its illegitimately prejudicial effect, and no particular standard of “proof” seems to apply to that exercise. Even recently established statutory schemes can be vague: for example the exclusion of improperly obtained evidence can occur if the impropriety is proved on the balance of probabilities and then if the court determines (no standard specified) that exclusion would be a proportionate response to the impropriety: s 30 Evidence Act 2006[NZ].
Some people think it is inappropriate to apply a standard of proof to anything other than a determination of fact. Many decisions are matters of judgment, about which all it can be said is that the court must be “satisfied”. The Jiang approach is not saved by this, because there the preconditions for admissibility are matters of fact, but one can more readily see that in balancing probative value against prejudicial effect the court is exercising its judgment. It will decide, for example, that the probative value of the evidence does outweigh the risk of improper prejudice that would arise from its admission. The trouble is, one can always ask, how sure of that are you?
In In re B (Children) [2008] UKHL 35 (11 June 2008) issues that overlapped those in In re Doherty were considered. Lord Hoffmann made it clear, para 2, that sometimes a legal rule requires a fact to be proved. Such a fact is called a fact in issue. Here, it was necessary to decide whether a child was “likely to suffer significant harm”, and this, as Baroness Hale (with whom all the other judges agreed) said, at para 22, is a prediction from existing facts. The issue was, to what standard did those existing facts have to be proved? These were, as Lord Hoffmann described them, facts in issue. The question was, what was the standard of proof of them “that is to say, the degree of persuasion which the tribunal must feel before it decides that the fact in issue did happen” (para 4). It was the balance of probabilities; there is only one civil standard of proof (para 13).
Lord Hoffmann carefully described the confusion that has occurred in the cases, and Lord Rodger and Lord Walker expressed their agreement (and also agreed with Baroness Hale). Essentially the confusion has concerned what Lord Nicholls meant in In re H (above) when he referred to heightened probabilities being required for proof of unlikely facts. Lord Hoffmann explained (para 12) that Lord Nicholls did not mean that where a serious allegation is in issue the standard of proof required is higher, notwithstanding that in R (McCann) v Crown Court at Manchester [2003] 1 AC 787, 812 Lord Steyn appears to have thought he did.
Baroness Hale laid to rest the misconception about what Lord Nichols had meant (para 64):
“My Lords, … Lord Nicholls' nuanced explanation left room for the nostrum, "the more serious the allegation, the more cogent the evidence needed to prove it", to take hold and be repeated time and time again in fact-finding hearings in care proceedings …. It is time for us to loosen its grip and give it its quietus.”
And concluded (para 70):
“… the standard of proof in finding the facts necessary to establish the threshold under [the relevant legislation here] is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.”
While the composition of the Appellate Committees in the two cases decided yesterday was different, with only Lord Scott being on both, there was obviously some discussion in the tea room. Lord Carswell’s assertion that the standard of balance of probabilities is finite and unvarying (in In re Doherty, para 28) is in harmony with Lord Hoffmann’s assertion that there is only one civil standard (In re B (Children) at para 13) and with Baroness Hale’s rejection of the idea that this standard can shift according to seriousness of the either the allegation or the consequences. In both cases there is support for the application of the criminal standard of proof in civil cases where the consequences of the finding of the fact in issue are particularly serious, but that would not be achieved by altering the level of proof required to satisfy the civil standard, and these cases did not call for application of the criminal standard.
The ECtHR has rejected the idea that stronger evidence is required to meet a specific standard of proof where the issue is serious: Saadi v Italy [2008] ECtHR 179 at 140.
Sunday, June 08, 2008
Book Review: Scalia and Garner, “Making your case” (2008)
Following a suggestion from my online book retailer’s computer, I bought “Making Your Case: The Art of Persuading Judges” by Antonin Scalia and Bryan Garner.
Both authors know their own minds, have strong opinions, and expect to be obeyed. And rightly so, at least in the field covered by this short and highly readable book which is mainly directed at appellate proceedings. Its advice on persuasion is also useful to trial lawyers. The 115 points in numbered paragraphs cover general principles of argumentation, legal reasoning, preparation of the documents, and presentation of oral argument.
On a few points the authors make no secret of their disagreement with each other. Here they are like Sumo wrestling Denny Cranes. Garner is OK with contractions (you can write can’t instead of cannot) but Scalia isn’t. Garner thinks that “he” can never mean “he or she”, whereas Scalia thinks it can. Garner thinks that footnotes should contain only a bare minimum of information, whereas Scalia wouldn’t go that far but would agree that they shouldn’t contain new arguments. Garner thinks citations should be relegated to footnotes, whereas Scalia prefers not to change established practice (although he would support avoiding breaking up with citations sentences that could be rewritten to place those citations at their ends).
Learning to write and speak correctly is important. There is a correct way to write. Grammar does matter. Words have precise meanings. (Despite current trends in usage, “begging” the question does not mean “raising” the question or “ignoring” the question, it means circular reasoning – assuming as true the very thing in dispute.) What you read will affect how you write, so read well. Throughout this book there are inset quotations, and the relevant one here (para 29) is from the Rt Hon Lord Birkett, “Cultivate the love of words …”.
Emotional restraint is essential: judges heartily dislike antagonism (para 19). Sound advice for advocates, but apparently not applicable to the current judges of the Supreme Court of the United States (including Scalia himself) whose occasional petulant cat-fighting at least helps to keep readers amused.
Every barrister would find this book useful. And no, you can't borrow my copy.
Both authors know their own minds, have strong opinions, and expect to be obeyed. And rightly so, at least in the field covered by this short and highly readable book which is mainly directed at appellate proceedings. Its advice on persuasion is also useful to trial lawyers. The 115 points in numbered paragraphs cover general principles of argumentation, legal reasoning, preparation of the documents, and presentation of oral argument.
On a few points the authors make no secret of their disagreement with each other. Here they are like Sumo wrestling Denny Cranes. Garner is OK with contractions (you can write can’t instead of cannot) but Scalia isn’t. Garner thinks that “he” can never mean “he or she”, whereas Scalia thinks it can. Garner thinks that footnotes should contain only a bare minimum of information, whereas Scalia wouldn’t go that far but would agree that they shouldn’t contain new arguments. Garner thinks citations should be relegated to footnotes, whereas Scalia prefers not to change established practice (although he would support avoiding breaking up with citations sentences that could be rewritten to place those citations at their ends).
Learning to write and speak correctly is important. There is a correct way to write. Grammar does matter. Words have precise meanings. (Despite current trends in usage, “begging” the question does not mean “raising” the question or “ignoring” the question, it means circular reasoning – assuming as true the very thing in dispute.) What you read will affect how you write, so read well. Throughout this book there are inset quotations, and the relevant one here (para 29) is from the Rt Hon Lord Birkett, “Cultivate the love of words …”.
Emotional restraint is essential: judges heartily dislike antagonism (para 19). Sound advice for advocates, but apparently not applicable to the current judges of the Supreme Court of the United States (including Scalia himself) whose occasional petulant cat-fighting at least helps to keep readers amused.
Every barrister would find this book useful. And no, you can't borrow my copy.
Friday, June 06, 2008
The taint of impropriety
When does official impropriety cease to taint the subsequent obtaining of evidence? In particular, when does an improperly obtained statement taint the subsequent obtaining of another statement about the same matter? This was the topic under consideration in R v Wittwer [2008] SCC 33 (5 June 2008).
The Supreme Court of Canada did not here need to make any new law: this case simply required an application of the principles that have been recognised: it is not necessary that there be a causal link between the improperly obtained evidence and the challenged evidence, but any one or more of the following sorts of connection is sufficient to taint the challenged evidence: a causal connection, a temporal connection, or a contextual connection.
“21. In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: R. v. Strachan 1988 CanLII 25 (S.C.C.), [1988] 2 S.C.R. 980 at p. 1005. The required connection between the breach and the subsequent statement may be “temporal, contextual, causal or a combination of the three”: R. v. Plaha 2004 CanLII 21043 (ON C.A.), (2004), 189 O.A.C. 376, at para. 45. A connection that is merely “remote” or “tenuous” will not suffice: R. v. Goldhart, 1996 CanLII 214 (S.C.C.), [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45.”
Here, the accused had been interviewed three times. The first interview was improperly conducted in that the accused was not informed of his right to legal advice. The second interview, conducted immediately afterwards once the police realised their error, was improperly conducted in that although the accused was advised of his right to counsel, no opportunity to exercise it was given (also, the interview was not videotaped and the audio tape was of poor quality). The police realised that these two interviews were of doubtful admissibility – and indeed at trial the prosecution did not seek to adduce them against the accused – so a third interview was conducted. The accused was given an opportunity to obtain legal advice but he did not wish to do so, and he refused to answer questions, simply referring the officer to the constable to whom he had spoken first. After more than four hours of this refusal to answer questions, the officer decided he could only break the impasse by speaking to the first interviewing officer. After this was done, the accused gave the statement the admissibility of which was now challenged.
I can imagine that some courts would look at this broadly, saying that the failure to advise the accused of his right to legal advice in the first interview (and the failure to facilitate the obtaining of such advice in the second) did not matter, because, as it turned out, the accused did not want to speak to a lawyer. That would be to improperly impose waiver on the accused, because to be effective waiver must be informed and freely given and here it was not informed at the time of the breach. Would the waiver argument be stronger if the accused had said, when told of his right to legal advice in the second and third interviews, “Yes, I know all about my rights to get legal advice before I talk to you, but I don’t want to speak to a lawyer”?
In this case there were three connections between the impropriety and the obtaining of the challenged evidence: there was a temporal connection (the accused had immediately started to answer questions after the officer had returned from – apparently - speaking to the first interviewer), a causal connection (the more than four hours of resistance to answering questions was overcome), and a contextual connection (the gap between the improperly obtained evidence and the challenged evidence was bridged by the interviewing officer’s association of the two statements in the third interview).
Therefore, the challenged evidence was tainted by breach of the Charter right, and the Court, in a unanimous judgment delivered by Fish J, was satisfied that admission of the evidence would bring the administration of justice into disrepute. A new trial was ordered.
The determination of when impropriety extends to the obtaining of subsequent evidence is sometimes addressed as a question of whether the impropriety has sufficiently attenuated so as to not taint the subsequent evidence. Causal analysis may be used here, but, as this case illustrates, causation is not the only consideration.
The Supreme Court of Canada did not here need to make any new law: this case simply required an application of the principles that have been recognised: it is not necessary that there be a causal link between the improperly obtained evidence and the challenged evidence, but any one or more of the following sorts of connection is sufficient to taint the challenged evidence: a causal connection, a temporal connection, or a contextual connection.
“21. In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: R. v. Strachan 1988 CanLII 25 (S.C.C.), [1988] 2 S.C.R. 980 at p. 1005. The required connection between the breach and the subsequent statement may be “temporal, contextual, causal or a combination of the three”: R. v. Plaha 2004 CanLII 21043 (ON C.A.), (2004), 189 O.A.C. 376, at para. 45. A connection that is merely “remote” or “tenuous” will not suffice: R. v. Goldhart, 1996 CanLII 214 (S.C.C.), [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45.”
Here, the accused had been interviewed three times. The first interview was improperly conducted in that the accused was not informed of his right to legal advice. The second interview, conducted immediately afterwards once the police realised their error, was improperly conducted in that although the accused was advised of his right to counsel, no opportunity to exercise it was given (also, the interview was not videotaped and the audio tape was of poor quality). The police realised that these two interviews were of doubtful admissibility – and indeed at trial the prosecution did not seek to adduce them against the accused – so a third interview was conducted. The accused was given an opportunity to obtain legal advice but he did not wish to do so, and he refused to answer questions, simply referring the officer to the constable to whom he had spoken first. After more than four hours of this refusal to answer questions, the officer decided he could only break the impasse by speaking to the first interviewing officer. After this was done, the accused gave the statement the admissibility of which was now challenged.
I can imagine that some courts would look at this broadly, saying that the failure to advise the accused of his right to legal advice in the first interview (and the failure to facilitate the obtaining of such advice in the second) did not matter, because, as it turned out, the accused did not want to speak to a lawyer. That would be to improperly impose waiver on the accused, because to be effective waiver must be informed and freely given and here it was not informed at the time of the breach. Would the waiver argument be stronger if the accused had said, when told of his right to legal advice in the second and third interviews, “Yes, I know all about my rights to get legal advice before I talk to you, but I don’t want to speak to a lawyer”?
In this case there were three connections between the impropriety and the obtaining of the challenged evidence: there was a temporal connection (the accused had immediately started to answer questions after the officer had returned from – apparently - speaking to the first interviewer), a causal connection (the more than four hours of resistance to answering questions was overcome), and a contextual connection (the gap between the improperly obtained evidence and the challenged evidence was bridged by the interviewing officer’s association of the two statements in the third interview).
Therefore, the challenged evidence was tainted by breach of the Charter right, and the Court, in a unanimous judgment delivered by Fish J, was satisfied that admission of the evidence would bring the administration of justice into disrepute. A new trial was ordered.
The determination of when impropriety extends to the obtaining of subsequent evidence is sometimes addressed as a question of whether the impropriety has sufficiently attenuated so as to not taint the subsequent evidence. Causal analysis may be used here, but, as this case illustrates, causation is not the only consideration.
Wednesday, June 04, 2008
Deference?
Should the idea that appellate courts owe deference to lower courts in some areas apply to sentencing? I think not, but the Supreme Court of Canada (with only Fish J dissenting) has held that it does: R v LM [2008] SCC 31 (29 May 2008).
Deference, when accorded by a higher court to a lower court, is an acknowledgement that the lower court is better placed to decide the point. It is often – indeed, usually – applied to determinations of questions of fact: if a judge has seen and heard the witnesses, an appellate court will be slow to depart from the findings of credibility and of fact made by that judge. There may be times when it can be shown that the judge drew inferences that were not justified, or that there was insufficient evidence to support the findings of fact, but generally the deferential approach is appropriate.
Sentencing is a process that applies once facts have been found. The judge can set out the facts and an appellate court can give the judge due deference on those. But that should be the extent of deference. Deference should not apply to the sentencing judge’s perception of how serious the particular offending is in the context of other cases, and of what weight to give matters of aggravation and mitigation. This is why appellate courts lay down a process of reasoning for sentencing judges to follow: fix a starting point taking into account the seriousness of the overall offending, including matters that aggravate or mitigate that seriousness, having regard to decided cases and the purposes and principles that statute requires to be considered, and then take into account matters personal to the particular offender, to increase or decrease the final sentence that is imposed, again with guidance from decided cases. This method helps to promote consistency, while at the same time it recognises that identical cases will be unlikely to occur. It also enables an appellate court to identify errors of principle and unreasonable assessments of the appropriate sentence. It is inaccurate (notwithstanding dicta to the contrary) to describe the sentencing judge as exercising a wide discretion if that is taken to mean that an appellate court will not be alert to identify errors: the judge’s choices must be made according to law.
But in LM the majority claimed to be endorsing deference:
“35 This exercise of ensuring that sentences are similar could not be given priority over the principle of deference to the trial judge’s exercise of discretion, since the sentence was not vitiated by an error in principle and the trial judge had not imposed a sentence that was clearly unreasonable by failing to give adequate consideration to certain factors or by improperly assessing the evidence ….”
Perhaps, however, the position is not as bad as this “deference” might suggest, because there is a non sequitur here: the appellate court does not defer when deciding whether the trial judge was wrong in principle, or whether the sentence was clearly unreasonable, so the appellate court is in reality giving priority to the exercise of ensuring that sentences are similar, while saying here that it isn’t.
To give deference to an exercise of discretion, while at the same time checking that it is not in error in principle or unreasonable, is a very artificial sort of deference. Fish J (agreeing on everything except the deference point) pointed to the function of the court of first appeal:
“69 Courts of Appeal are indeed bound to recognize that trial courts enjoy a broad discretion in sentencing matters. But they are required to intervene where the sentence imposed at trial is shown to be unfit, within the meaning of the decided cases. And in reviewing their decisions on a recognized ground, we should remain mindful that provincial Courts of Appeal are endowed in sentencing matters with a supervisory jurisdiction that this Court is not meant to share. As Lamer C.J. put it in M. (C.A.) 1996 CanLII 230 (S.C.C.), [1996] 1 S.C.R. 500, at para. 92: “Appellate courts . . . serve an important function in reviewing and minimizing the disparity of sentences imposed by sentencing judges for similar offenders and similar offences committed throughout Canada.””
He had also held,
“64. Parliament has now recognized in s. 718.2(b) of the Criminal Code that parity is a principle that trial judges must consider in determining a fit sentence. Failure to do so adequately thus amounts in itself to a reviewable error in principle: appellate intervention does not depend, in my respectful view, on the existence of an additional error in principle as well.”
The Supreme Court did not explore in detail the Quebec Court of Appeal’s treatment of the facts, where it apparently found some reason to materially differ from the trial judge’s findings. That difference was the reason the majority in the Court of Appeal would have reduced the sentence in this case. The Supreme Court’s approach, emphasising deference, leaves unresolved the issue of whether the trial judge’s findings of fact were supported by the evidence.
The case does make some other points: a maximum sentence is not reserved for only the most serious cases imaginable, and the post-imprisonment period on supervised parole is not relevant to determination of the duration of the relevant sentence of imprisonment.
Deference, when accorded by a higher court to a lower court, is an acknowledgement that the lower court is better placed to decide the point. It is often – indeed, usually – applied to determinations of questions of fact: if a judge has seen and heard the witnesses, an appellate court will be slow to depart from the findings of credibility and of fact made by that judge. There may be times when it can be shown that the judge drew inferences that were not justified, or that there was insufficient evidence to support the findings of fact, but generally the deferential approach is appropriate.
Sentencing is a process that applies once facts have been found. The judge can set out the facts and an appellate court can give the judge due deference on those. But that should be the extent of deference. Deference should not apply to the sentencing judge’s perception of how serious the particular offending is in the context of other cases, and of what weight to give matters of aggravation and mitigation. This is why appellate courts lay down a process of reasoning for sentencing judges to follow: fix a starting point taking into account the seriousness of the overall offending, including matters that aggravate or mitigate that seriousness, having regard to decided cases and the purposes and principles that statute requires to be considered, and then take into account matters personal to the particular offender, to increase or decrease the final sentence that is imposed, again with guidance from decided cases. This method helps to promote consistency, while at the same time it recognises that identical cases will be unlikely to occur. It also enables an appellate court to identify errors of principle and unreasonable assessments of the appropriate sentence. It is inaccurate (notwithstanding dicta to the contrary) to describe the sentencing judge as exercising a wide discretion if that is taken to mean that an appellate court will not be alert to identify errors: the judge’s choices must be made according to law.
But in LM the majority claimed to be endorsing deference:
“35 This exercise of ensuring that sentences are similar could not be given priority over the principle of deference to the trial judge’s exercise of discretion, since the sentence was not vitiated by an error in principle and the trial judge had not imposed a sentence that was clearly unreasonable by failing to give adequate consideration to certain factors or by improperly assessing the evidence ….”
Perhaps, however, the position is not as bad as this “deference” might suggest, because there is a non sequitur here: the appellate court does not defer when deciding whether the trial judge was wrong in principle, or whether the sentence was clearly unreasonable, so the appellate court is in reality giving priority to the exercise of ensuring that sentences are similar, while saying here that it isn’t.
To give deference to an exercise of discretion, while at the same time checking that it is not in error in principle or unreasonable, is a very artificial sort of deference. Fish J (agreeing on everything except the deference point) pointed to the function of the court of first appeal:
“69 Courts of Appeal are indeed bound to recognize that trial courts enjoy a broad discretion in sentencing matters. But they are required to intervene where the sentence imposed at trial is shown to be unfit, within the meaning of the decided cases. And in reviewing their decisions on a recognized ground, we should remain mindful that provincial Courts of Appeal are endowed in sentencing matters with a supervisory jurisdiction that this Court is not meant to share. As Lamer C.J. put it in M. (C.A.) 1996 CanLII 230 (S.C.C.), [1996] 1 S.C.R. 500, at para. 92: “Appellate courts . . . serve an important function in reviewing and minimizing the disparity of sentences imposed by sentencing judges for similar offenders and similar offences committed throughout Canada.””
He had also held,
“64. Parliament has now recognized in s. 718.2(b) of the Criminal Code that parity is a principle that trial judges must consider in determining a fit sentence. Failure to do so adequately thus amounts in itself to a reviewable error in principle: appellate intervention does not depend, in my respectful view, on the existence of an additional error in principle as well.”
The Supreme Court did not explore in detail the Quebec Court of Appeal’s treatment of the facts, where it apparently found some reason to materially differ from the trial judge’s findings. That difference was the reason the majority in the Court of Appeal would have reduced the sentence in this case. The Supreme Court’s approach, emphasising deference, leaves unresolved the issue of whether the trial judge’s findings of fact were supported by the evidence.
The case does make some other points: a maximum sentence is not reserved for only the most serious cases imaginable, and the post-imprisonment period on supervised parole is not relevant to determination of the duration of the relevant sentence of imprisonment.
Tuesday, June 03, 2008
Laundering: proceeds and purpose
Another exercise in statutory interpretation involving the proceeds of crime and money laundering (I have noted the three House of Lords decisions on this last month: see R v May, R v Green, and Crown Prosecution Service v Jennings, all blogged 16 May 2008) is United States v Santos [2008] USSC No06-1005, 2 June 2008.
In Santos the issue was whether, in the context of the particular statute in question, “proceeds” means “profits”. The majority held that yes, here it does. This was so in the absence of a legislative history (or context) suggesting otherwise. Each possible meaning of “proceeds” was equally possible in the legislation, and the rule of lenity – that in such a situation the meaning most favourable to the accused should be preferred – applied. Justice Scalia, for the majority, wrote:
“Under either of the word’s ordinary definitions, all provisions of the federal money-laundering statute are coherent; no provisions are redundant; and the statute is not rendered utterly absurd. From the face of the statute, there is no more reason to think that “proceeds” means “receipts” than there is to think that “proceeds” means “profits.” Under a long line of our decisions, the tie must go to the defendant. The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them. See United States v. Gradwell, 243 U. S. 476, 485 (1917); McBoyle v. United States, 283 U. S. 25, 27 (1931); United States v. Bass, 404 U. S. 336, 347– 349 (1971). This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress’s stead. Because the “profits” definition of “proceeds” is always more defendant-friendly than the “receipts” definition, the rule of lenity dictates that it should be adopted.”
The Act considered here pre-dated other money laundering legislation, not applicable to the present case, in which “proceeds” is defined as being gross proceeds, consistently with international treaty obligations.
Cynical defence lawyers might be inclined to think that the courts do everything possible, these days, to avoid having to apply this rule of lenity by using a purposive interpretation as a means of refusing to acknowledge statutory ambiguity.
In another decision on money laundering, Cuellar v US [2008] USSC No 06-1456 (2 June 2008) the Supreme Court held that the prosecution had failed to adduce evidence of one of the elements of the offence charged. This was a form of laundering involving the transportation of the money. The offence requires proof of both the fact of transportation (about which there was no issue on this appeal) and that the accused’s purpose was to conceal the money. On the latter there was no proof of purpose in this case and the conviction could not stand.
Cuellar is simply an analysis of the elements of an offence and an examination of the adequacy of proof. It is quite likely that the corresponding legislation in other jurisdictions will allow the same point to be made. For example, in New Zealand we have definitions of “dealing” with property that include transporting it in the sense used in Cuellar, namely taking it across a border (Crimes Act 1961, s 243(1); Misuse of Drugs Act 1975, s 12B(1)), and laundering requires a purpose of concealment (s 243(4) and s 12B(4)). “Conceal” is also defined in the same sections, and this definition includes “to conceal or disguise the location” of the money. At first glance, it looks as if the accused in Cuellar was doing this: he drove towards the Mexican border with money concealed in his vehicle. But, as Thomas J, delivering the Court’s decision, wrote:
““There is a difference between concealing something to transport it, and transporting something to conceal it,” (478 F 3d 471 at 296-297 Smith, J., dissenting [in the Fifth Circuit’s rehearing en banc of the appeal in the present case]); that is, how one moves the money is distinct from why one moves the money. Evidence of the former, standing alone, is not sufficient to prove the latter.”
The weakness of the evidence was significant to the result in this case: there was insufficient to support an inference that the accused transported the money intending thereby to conceal it.
In Santos the issue was whether, in the context of the particular statute in question, “proceeds” means “profits”. The majority held that yes, here it does. This was so in the absence of a legislative history (or context) suggesting otherwise. Each possible meaning of “proceeds” was equally possible in the legislation, and the rule of lenity – that in such a situation the meaning most favourable to the accused should be preferred – applied. Justice Scalia, for the majority, wrote:
“Under either of the word’s ordinary definitions, all provisions of the federal money-laundering statute are coherent; no provisions are redundant; and the statute is not rendered utterly absurd. From the face of the statute, there is no more reason to think that “proceeds” means “receipts” than there is to think that “proceeds” means “profits.” Under a long line of our decisions, the tie must go to the defendant. The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them. See United States v. Gradwell, 243 U. S. 476, 485 (1917); McBoyle v. United States, 283 U. S. 25, 27 (1931); United States v. Bass, 404 U. S. 336, 347– 349 (1971). This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress’s stead. Because the “profits” definition of “proceeds” is always more defendant-friendly than the “receipts” definition, the rule of lenity dictates that it should be adopted.”
The Act considered here pre-dated other money laundering legislation, not applicable to the present case, in which “proceeds” is defined as being gross proceeds, consistently with international treaty obligations.
Cynical defence lawyers might be inclined to think that the courts do everything possible, these days, to avoid having to apply this rule of lenity by using a purposive interpretation as a means of refusing to acknowledge statutory ambiguity.
In another decision on money laundering, Cuellar v US [2008] USSC No 06-1456 (2 June 2008) the Supreme Court held that the prosecution had failed to adduce evidence of one of the elements of the offence charged. This was a form of laundering involving the transportation of the money. The offence requires proof of both the fact of transportation (about which there was no issue on this appeal) and that the accused’s purpose was to conceal the money. On the latter there was no proof of purpose in this case and the conviction could not stand.
Cuellar is simply an analysis of the elements of an offence and an examination of the adequacy of proof. It is quite likely that the corresponding legislation in other jurisdictions will allow the same point to be made. For example, in New Zealand we have definitions of “dealing” with property that include transporting it in the sense used in Cuellar, namely taking it across a border (Crimes Act 1961, s 243(1); Misuse of Drugs Act 1975, s 12B(1)), and laundering requires a purpose of concealment (s 243(4) and s 12B(4)). “Conceal” is also defined in the same sections, and this definition includes “to conceal or disguise the location” of the money. At first glance, it looks as if the accused in Cuellar was doing this: he drove towards the Mexican border with money concealed in his vehicle. But, as Thomas J, delivering the Court’s decision, wrote:
““There is a difference between concealing something to transport it, and transporting something to conceal it,” (478 F 3d 471 at 296-297 Smith, J., dissenting [in the Fifth Circuit’s rehearing en banc of the appeal in the present case]); that is, how one moves the money is distinct from why one moves the money. Evidence of the former, standing alone, is not sufficient to prove the latter.”
The weakness of the evidence was significant to the result in this case: there was insufficient to support an inference that the accused transported the money intending thereby to conceal it.
Sunday, June 01, 2008
The basics
Instructions given by judges to juries on how to approach issues of credibility in the context of the burden and standard of proof are often the subject of appeals against conviction. This occurred in R v JHS [2008] SCC 30 (29 May 2008).
In Canada the leading case on what instructions are appropriate (generally, but always adaptable to the circumstances of a given case, so they are not in that sense mandatory) is R v W(D) [1991] 1 SCR 742 SCC, at 757-758:
“A trial judge might well instruct the jury on the question of credibility along these lines:
“First, if you believe the evidence of the accused, obviously you must acquit.
“Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
“Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”
…
“Nonetheless, the failure to use such language is not fatal if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply . . . .”
The appellate court approaches the adequacy of a challenged instruction by reading the judge’s remarks as a whole, to ascertain whether the jury could have been left in a misapprehension as to the correct burden and standard of proof to apply.
In the circumstances in this appeal, the Supreme Court held that the judge’s directions had not misled the jury, and the appeal against the Nova Scotia Court of Appeal’s quashing of the conviction was allowed.
This case reminds me of two issues currently before the public in New Zealand: should the prosecution be able to appeal against a quashing of a conviction (or, indeed, against a jury verdict of not guilty); and, do juries, and the public, properly understand the burden and standard of proof in criminal cases?
Prosecution appeals
The kind of appeal to the ultimate appellate court that occurred in R v JHS could not have been brought in New Zealand. If the (first) Court of Appeal quashes a conviction, it may order a re-trial, but otherwise the quashing is final. There is no prosecution right of appeal to the Supreme Court against a refusal of the Court of Appeal to order a new trial.
The only way the prosecution can contest an acquittal is where a question of law was reserved by the trial judge for the opinion of the Court of Appeal. Either side may ask for such a question to be reserved, and if the judge refuses to reserve a question, either side may apply to the Court of Appeal for leave to appeal against that refusal. Only the convicted person may seek leave to appeal to the Supreme Court from the Court of Appeal’s decision on a question of law; the prosecution is limited (in this context) to appeals to the Supreme Court on sentencing matters.
This structure reflects the law’s recognition of the finality of a verdict of not guilty. Essentially, this is a policy recognition of the imbalance in resources available to a person who is accused of a crime, and of the risk of oppression that repeated prosecutions would bring. There is some retreat from this position, for example in the United Kingdom, where acquittals for some serious offences may not be final (see Criminal Justice Act 2003[UK], Part 10). Currently in New Zealand the Criminal Procedure Bill proposes to permit retrial after an acquittal for an offence carrying a maximum penalty of 14 or more years’ imprisonment if that acquittal is tainted by the commission of an offence against the administration of justice, and if a judge of the High Court considers that a retrial is in the interests of justice. This Bill is currently stalled as the National Party (the main opposition party) refuses to support another of its reforms, the abolition in most cases of preliminary (deposition) hearings. The proposed permitting of retrial after acquittal does not appear to have attracted as much controversy in the legislature.
The tripartite direction and the burden and standard of proof
The equivalent of the Canadian R v W(D) instruction in New Zealand is the so-called tripartite direction. An illustration is R v Turner [2007] NZCA 427, where the Court did not criticise the trial judge’s instruction which had been in these terms, addressing the three possible effects of an accused’s evidence:
“The first is that a jury accepts entirely the important parts of his evidence and where that happens and if it happens here then obviously you are going to find this accused not guilty without hesitation. If you accept that this young lady initiated the sexual activity, became angry about some extraneous matter afterwards and has made up these allegations then of course he is not guilty.
“The second possibility is that the accused’s evidence might cause you reasonable doubts about the things the Crown has to prove. Again, if you are in reasonable doubts about what the Crown has to prove after hearing from the accused, then he is entitled to be found not guilty.
“There is a third possibility about which you have to be careful. If you do not accept the evidence of the accused about the material parts of these events, that does not automatically mean he is guilty. Put the unacceptable evidence to one side. Remind yourself who has got to do the proving. Go back to the evidence of the complainant and ask yourself whether it satisfies you beyond reasonable doubt that her allegations are true.”
This direction is not mandatory. Where an accused has not given evidence in court but has made a statement to the police which is given in evidence, the tripartite direction may not be considered appropriate. In R v Martin [2007] NZCA 386 a more appropriate direction for this situation was:
“Statements made and interviews given by the accused to the police and to customs officers are not sworn evidence in the witness box, but they are part of the material for you to consider. What you make of the truthfulness, accuracy and weight of those statements made by the accused is for you to decide. In the same way that you may accept parts of what a witness said in evidence, and not accept other parts, you may accept parts of what was said in statements and not other parts.”
That has to be accompanied, of course, by a proper direction on the burden and standard of proof. This point was emphasised in R v Sturgeon 10/11/06, CA364/05:
“[18] It is necessary to look at the summing-up as a whole, because the real issue is whether there is any reasonable possibility that the jury might have misunderstood where the burden of proof lay.”
I have noted previously, in connection with R v Wanhalla (blogged here 25 August 2006), that the Court of Appeal does not require that the standard of proof be explained in terms of numerical probabilities, and nor is it considered desirable to invite the jurors to liken it to personal decisions they may have to make about very important matters in their own lives. (For discussion of the need to explain beyond reasonable doubt in probabilistic terms, see the article by Tillers and Gottfried, in Law Probability and Risk (2006) 5 135-157, and comments at 159 and 167.) Understandably, there is considerable difference of opinion about what “proved beyond reasonable doubt” means. Not only are there differences in perceptions of the appropriate level of proof, but there also appears to be widespread lack of understanding about what an acquittal means. Currently there is a great deal of discussion in New Zealand about acquittals in some high-profile cases. It is not unusual to hear comments such as “he was proved to be innocent” and “the police should now try to find the real offender”.
One such high-profile case involved a father accused of killing his twin babies. The defence at trial was that it was reasonably possible that the accused was not the killer but that the twins’ mother was. After the father’s acquittal, there were calls for the police to continue their investigation (nothing wrong with that) and, in the words of one commentator (NZ Herald Thurs May 29, Opinion column),
“If she faced a trial, [the mother] might ultimately be found not guilty beyond reasonable doubt. That is not the point; that is our system. On the evidence available, she should at least be put before the court to let another jury decide.”
These phrases “be found not guilty beyond reasonable doubt … that is our system” betray this misconception. Sad to say, that comment was made by a barrister. It’s just sloppy language, of course: he would instantly accept his error if it were to be pointed out to him. Judges too are inclined to fall into such traps.
In Canada the leading case on what instructions are appropriate (generally, but always adaptable to the circumstances of a given case, so they are not in that sense mandatory) is R v W(D) [1991] 1 SCR 742 SCC, at 757-758:
“A trial judge might well instruct the jury on the question of credibility along these lines:
“First, if you believe the evidence of the accused, obviously you must acquit.
“Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
“Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”
…
“Nonetheless, the failure to use such language is not fatal if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply . . . .”
The appellate court approaches the adequacy of a challenged instruction by reading the judge’s remarks as a whole, to ascertain whether the jury could have been left in a misapprehension as to the correct burden and standard of proof to apply.
In the circumstances in this appeal, the Supreme Court held that the judge’s directions had not misled the jury, and the appeal against the Nova Scotia Court of Appeal’s quashing of the conviction was allowed.
This case reminds me of two issues currently before the public in New Zealand: should the prosecution be able to appeal against a quashing of a conviction (or, indeed, against a jury verdict of not guilty); and, do juries, and the public, properly understand the burden and standard of proof in criminal cases?
Prosecution appeals
The kind of appeal to the ultimate appellate court that occurred in R v JHS could not have been brought in New Zealand. If the (first) Court of Appeal quashes a conviction, it may order a re-trial, but otherwise the quashing is final. There is no prosecution right of appeal to the Supreme Court against a refusal of the Court of Appeal to order a new trial.
The only way the prosecution can contest an acquittal is where a question of law was reserved by the trial judge for the opinion of the Court of Appeal. Either side may ask for such a question to be reserved, and if the judge refuses to reserve a question, either side may apply to the Court of Appeal for leave to appeal against that refusal. Only the convicted person may seek leave to appeal to the Supreme Court from the Court of Appeal’s decision on a question of law; the prosecution is limited (in this context) to appeals to the Supreme Court on sentencing matters.
This structure reflects the law’s recognition of the finality of a verdict of not guilty. Essentially, this is a policy recognition of the imbalance in resources available to a person who is accused of a crime, and of the risk of oppression that repeated prosecutions would bring. There is some retreat from this position, for example in the United Kingdom, where acquittals for some serious offences may not be final (see Criminal Justice Act 2003[UK], Part 10). Currently in New Zealand the Criminal Procedure Bill proposes to permit retrial after an acquittal for an offence carrying a maximum penalty of 14 or more years’ imprisonment if that acquittal is tainted by the commission of an offence against the administration of justice, and if a judge of the High Court considers that a retrial is in the interests of justice. This Bill is currently stalled as the National Party (the main opposition party) refuses to support another of its reforms, the abolition in most cases of preliminary (deposition) hearings. The proposed permitting of retrial after acquittal does not appear to have attracted as much controversy in the legislature.
The tripartite direction and the burden and standard of proof
The equivalent of the Canadian R v W(D) instruction in New Zealand is the so-called tripartite direction. An illustration is R v Turner [2007] NZCA 427, where the Court did not criticise the trial judge’s instruction which had been in these terms, addressing the three possible effects of an accused’s evidence:
“The first is that a jury accepts entirely the important parts of his evidence and where that happens and if it happens here then obviously you are going to find this accused not guilty without hesitation. If you accept that this young lady initiated the sexual activity, became angry about some extraneous matter afterwards and has made up these allegations then of course he is not guilty.
“The second possibility is that the accused’s evidence might cause you reasonable doubts about the things the Crown has to prove. Again, if you are in reasonable doubts about what the Crown has to prove after hearing from the accused, then he is entitled to be found not guilty.
“There is a third possibility about which you have to be careful. If you do not accept the evidence of the accused about the material parts of these events, that does not automatically mean he is guilty. Put the unacceptable evidence to one side. Remind yourself who has got to do the proving. Go back to the evidence of the complainant and ask yourself whether it satisfies you beyond reasonable doubt that her allegations are true.”
This direction is not mandatory. Where an accused has not given evidence in court but has made a statement to the police which is given in evidence, the tripartite direction may not be considered appropriate. In R v Martin [2007] NZCA 386 a more appropriate direction for this situation was:
“Statements made and interviews given by the accused to the police and to customs officers are not sworn evidence in the witness box, but they are part of the material for you to consider. What you make of the truthfulness, accuracy and weight of those statements made by the accused is for you to decide. In the same way that you may accept parts of what a witness said in evidence, and not accept other parts, you may accept parts of what was said in statements and not other parts.”
That has to be accompanied, of course, by a proper direction on the burden and standard of proof. This point was emphasised in R v Sturgeon 10/11/06, CA364/05:
“[18] It is necessary to look at the summing-up as a whole, because the real issue is whether there is any reasonable possibility that the jury might have misunderstood where the burden of proof lay.”
I have noted previously, in connection with R v Wanhalla (blogged here 25 August 2006), that the Court of Appeal does not require that the standard of proof be explained in terms of numerical probabilities, and nor is it considered desirable to invite the jurors to liken it to personal decisions they may have to make about very important matters in their own lives. (For discussion of the need to explain beyond reasonable doubt in probabilistic terms, see the article by Tillers and Gottfried, in Law Probability and Risk (2006) 5 135-157, and comments at 159 and 167.) Understandably, there is considerable difference of opinion about what “proved beyond reasonable doubt” means. Not only are there differences in perceptions of the appropriate level of proof, but there also appears to be widespread lack of understanding about what an acquittal means. Currently there is a great deal of discussion in New Zealand about acquittals in some high-profile cases. It is not unusual to hear comments such as “he was proved to be innocent” and “the police should now try to find the real offender”.
One such high-profile case involved a father accused of killing his twin babies. The defence at trial was that it was reasonably possible that the accused was not the killer but that the twins’ mother was. After the father’s acquittal, there were calls for the police to continue their investigation (nothing wrong with that) and, in the words of one commentator (NZ Herald Thurs May 29, Opinion column),
“If she faced a trial, [the mother] might ultimately be found not guilty beyond reasonable doubt. That is not the point; that is our system. On the evidence available, she should at least be put before the court to let another jury decide.”
These phrases “be found not guilty beyond reasonable doubt … that is our system” betray this misconception. Sad to say, that comment was made by a barrister. It’s just sloppy language, of course: he would instantly accept his error if it were to be pointed out to him. Judges too are inclined to fall into such traps.
Tuesday, May 27, 2008
The limits of comity
In Canada (Justice) v Khadr [2008] SCC 28 (23 May 2008) s 7 of the Canadian Charter of Rights and Freedoms was applied extra-territorially. This was possible because Canadian officials had participated in a procedure in the detention centre at Guantanamo Bay that violated Canada’s obligations at international law. This participation occurred when copies of interviews that the Canadian officials had conducted at Guantanamo Bay with Mr Khadr, a detainee, were handed over to the US authorities. The violation of fundamental human rights protected by international law, arising from the procedures then in force at Guantanamo Bay, was held to have occurred on the basis of the procedural failings recognised by the United States Supreme Court in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (blogged here 30 June 2006).
“26. … The effect of the United States Supreme Court’s holdings is that the conditions under which Mr. Khadr was held and was liable for prosecution were illegal under both U.S. and international law at the time Canadian officials interviewed Mr. Khadr and gave the information to U.S. authorities. Hence no question of deference to foreign law arises. The Charter bound Canada to the extent that the conduct of Canadian officials involved it in a process that violated Canada’s international obligations.”
Section 7 of the Charter provides:
“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
Here, fundamental justice required that Mr Khadr be given, to facilitate his defence to charges that were to be tried at Guantanamo Bay, copies of certain interviews. This was analogous to, but not the same as, the disclosure obligation that would arise in a domestic prosecution. The difference here is that the Canadian authorities were not prosecutors:
“32. … The scope of the disclosure obligation in this context is defined by the nature of Canada’s participation in the foreign process. The crux of that participation was providing information to U.S. authorities in relation to a process which is contrary to Canada’s international human rights obligations. Thus, the scope of the disclosure obligation must be related to the information provided to U.S. authorities.”
The extent of this disclosure requirement was to be determined in accordance with s 38.06 of the Canada Evidence Act, which involves a judicial oversight procedure to protect security and public policy considerations.
It is clear that even if the US SC had held the Guantanamo Bay procedures to be legitimate, the SCC would not have been obliged to agree: para 25.
This case distinguished the facts of R. v. Hape, 2007 SCC 26 (CanLII), [2007] 2 S.C.R. 292, 2007 SCC 26 (blogged here 11 June 2007), and applied dicta in that case on the limits of comity:
“ 18. … comity cannot be used to justify Canadian participation in activities of a foreign state or its agents that are contrary to Canada’s international obligations. It was held that the deference required by the principle of comity “ends where clear violations of international law and fundamental human rights begin” (Hape, at paras. 51, 52 and 101, per LeBel J.). The Court further held that in interpreting the scope and application of the Charter, the courts should seek to ensure compliance with Canada’s binding obligations under international law (para. 56, per LeBel J.).”
On the question of the material that should be disclosed here, while that was left to the designated judge to determine, the SCC observed that confining it to the interviews that had been given to the US authorities may not be sufficient for the conduct of Mr Khadr’s defence:
“26. … The effect of the United States Supreme Court’s holdings is that the conditions under which Mr. Khadr was held and was liable for prosecution were illegal under both U.S. and international law at the time Canadian officials interviewed Mr. Khadr and gave the information to U.S. authorities. Hence no question of deference to foreign law arises. The Charter bound Canada to the extent that the conduct of Canadian officials involved it in a process that violated Canada’s international obligations.”
Section 7 of the Charter provides:
“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
Here, fundamental justice required that Mr Khadr be given, to facilitate his defence to charges that were to be tried at Guantanamo Bay, copies of certain interviews. This was analogous to, but not the same as, the disclosure obligation that would arise in a domestic prosecution. The difference here is that the Canadian authorities were not prosecutors:
“32. … The scope of the disclosure obligation in this context is defined by the nature of Canada’s participation in the foreign process. The crux of that participation was providing information to U.S. authorities in relation to a process which is contrary to Canada’s international human rights obligations. Thus, the scope of the disclosure obligation must be related to the information provided to U.S. authorities.”
The extent of this disclosure requirement was to be determined in accordance with s 38.06 of the Canada Evidence Act, which involves a judicial oversight procedure to protect security and public policy considerations.
It is clear that even if the US SC had held the Guantanamo Bay procedures to be legitimate, the SCC would not have been obliged to agree: para 25.
This case distinguished the facts of R. v. Hape, 2007 SCC 26 (CanLII), [2007] 2 S.C.R. 292, 2007 SCC 26 (blogged here 11 June 2007), and applied dicta in that case on the limits of comity:
“ 18. … comity cannot be used to justify Canadian participation in activities of a foreign state or its agents that are contrary to Canada’s international obligations. It was held that the deference required by the principle of comity “ends where clear violations of international law and fundamental human rights begin” (Hape, at paras. 51, 52 and 101, per LeBel J.). The Court further held that in interpreting the scope and application of the Charter, the courts should seek to ensure compliance with Canada’s binding obligations under international law (para. 56, per LeBel J.).”
On the question of the material that should be disclosed here, while that was left to the designated judge to determine, the SCC observed that confining it to the interviews that had been given to the US authorities may not be sufficient for the conduct of Mr Khadr’s defence:
“34. … disclosure of an inculpatory statement shared with the U.S. authorities might require disclosure of an exculpatory statement not shared to permit Mr. Khadr to know his jeopardy and prepare his defence. It would seem to follow that fairness requires disclosure of all records in any form of the interviews themselves — whether or not passed on to U.S. authorities — including any transcripts, recordings or summaries in Canada’s possession. For similar reasons, it would seem to follow that Mr. Khadr is entitled to disclosure of information given to U.S. authorities as a direct consequence of Canada’s having interviewed him.”
[Update: the Court does not have jurisdiction to compel the government to order Mr Khadr's return to Canada: Canada (Prime Minister) v Khadr [2010] SCC 3 (29 January 2010).]
Thursday, May 22, 2008
Preventing statutory unfairness
It may sometimes be unjust for the courts to wait for the legislature to extend the law to fully achieve its purpose. A stay of proceedings can be a means of avoiding an injustice that the legislature, had it considered the position, would itself have sought to avoid.
In R v Asfaw [2008] UKHL 31 (21 May 2008) the majority (Lords Bingham, Hope and Carswell) applied the stay of proceedings route to avoiding an injustice. The dissenters, Lords Rodger and Mance, would on ordinary principles of statutory interpretation have upheld the conviction.
Broadly, the appellant was a refugee who, in the course of escaping from Ethiopia, entered the UK at Heathrow and, while at the airport, used a false passport to try to board a flight to Washington DC. She was charged with two counts: using the false passport, and attempting to obtain air services by deception. The first charge carried a defence pursuant to legislation protecting refugees, while the second was not listed with the offences to which that defence was available.
Both charges arose from the same facts. Lord Bingham was concerned about the purpose of prosecuting the appellant for the second:
“31. The appellant … submitted that it was an abuse of the criminal process to prosecute her to conviction under count 2. That submission calls for closer consideration. It was not an abuse to prefer charges under both counts, since the respondent was entitled to question whether the appellant was a refugee, and if she was not neither the article nor the section could avail her. It is true that the two counts related to identical conduct and the second count served no obvious purpose, but the court could ensure, on conviction, that no disproportionate penalty was inflicted. If, however, the second count was included in the indictment in order to prevent the appellant from relying on the defence which section 31 would otherwise provide, I would share the Court of Appeal's view (para 24) that there would be strong grounds for contending that this was an abuse of process. It is not at all clear what legitimate purpose was sought to be served by including the second count, and it must be questioned whether there was any legitimate purpose.”
Section 31 of the Immigration and Asylum Act 1999[UK] provides for the relevant defence for refugees. The appellant had been acquitted on count 1, pursuant to this section, so there was no doubt that she was a refugee. Lord Bingham continued:
“32. … if [as they did] the jury were to acquit the appellant on count 1 in reliance on section 31, it would be both unfair and contrary to the intention of the statute to convict her on count 2. The Attorney General expressly recognised that additional offences might have to be added to section 31(3), and when such offences, requiring addition to the list, arose in individual cases it would plainly be necessary to avoid injustice in those cases. There was in my opinion a clear risk of injustice in this case if the jury were to acquit on count 1 but convict on count 2.”
But,
“33 … If the jury convicted the appellant on count 1, rejecting her section 31 defence, there would have been no objection in principle to further prosecution of count 2. But the appellant would be likely in that situation to have pleaded guilty (as she did in response to the judge's ruling), and the question would arise whether further prosecution of count 2 could be justified: given that the judge had power to sentence the appellant to imprisonment for 10 years on count 1, it could scarcely be suggested that his powers of punishment were inadequate to reflect the appellant's culpability.”
Lord Hope agreed (para 69), calling the omission of the count 2 offence from the offences to which the relevant defence applied an “oversight” (para 67).
The dissenters interpreted the legislation as requiring the appellant to present herself to the UK authorities and to obtain valid travel documents if she wished to travel on to the United States, so both charges were justified. There was, on this view, no need to address the need for a remedy. On the majority approach, the appellant had still been fleeing from persecution when she was at Heathrow. The difference between the conclusions of the Law Lords here may not have occurred without this difference in perception of her situation.
The majority approach is an illustration of how injustice that would arise from a literal reading – and indeed from an ordinary and reasonable reading - of legislation can be avoided by a stay of proceedings at an appropriate time. This could not be taken as an illustration of the court refusing to enforce a statute, but it is a case where the unfair consequences of application of a statute were rejected and avoided by the court’s inherent power to prevent an abuse of process.
In R v Asfaw [2008] UKHL 31 (21 May 2008) the majority (Lords Bingham, Hope and Carswell) applied the stay of proceedings route to avoiding an injustice. The dissenters, Lords Rodger and Mance, would on ordinary principles of statutory interpretation have upheld the conviction.
Broadly, the appellant was a refugee who, in the course of escaping from Ethiopia, entered the UK at Heathrow and, while at the airport, used a false passport to try to board a flight to Washington DC. She was charged with two counts: using the false passport, and attempting to obtain air services by deception. The first charge carried a defence pursuant to legislation protecting refugees, while the second was not listed with the offences to which that defence was available.
Both charges arose from the same facts. Lord Bingham was concerned about the purpose of prosecuting the appellant for the second:
“31. The appellant … submitted that it was an abuse of the criminal process to prosecute her to conviction under count 2. That submission calls for closer consideration. It was not an abuse to prefer charges under both counts, since the respondent was entitled to question whether the appellant was a refugee, and if she was not neither the article nor the section could avail her. It is true that the two counts related to identical conduct and the second count served no obvious purpose, but the court could ensure, on conviction, that no disproportionate penalty was inflicted. If, however, the second count was included in the indictment in order to prevent the appellant from relying on the defence which section 31 would otherwise provide, I would share the Court of Appeal's view (para 24) that there would be strong grounds for contending that this was an abuse of process. It is not at all clear what legitimate purpose was sought to be served by including the second count, and it must be questioned whether there was any legitimate purpose.”
Section 31 of the Immigration and Asylum Act 1999[UK] provides for the relevant defence for refugees. The appellant had been acquitted on count 1, pursuant to this section, so there was no doubt that she was a refugee. Lord Bingham continued:
“32. … if [as they did] the jury were to acquit the appellant on count 1 in reliance on section 31, it would be both unfair and contrary to the intention of the statute to convict her on count 2. The Attorney General expressly recognised that additional offences might have to be added to section 31(3), and when such offences, requiring addition to the list, arose in individual cases it would plainly be necessary to avoid injustice in those cases. There was in my opinion a clear risk of injustice in this case if the jury were to acquit on count 1 but convict on count 2.”
But,
“33 … If the jury convicted the appellant on count 1, rejecting her section 31 defence, there would have been no objection in principle to further prosecution of count 2. But the appellant would be likely in that situation to have pleaded guilty (as she did in response to the judge's ruling), and the question would arise whether further prosecution of count 2 could be justified: given that the judge had power to sentence the appellant to imprisonment for 10 years on count 1, it could scarcely be suggested that his powers of punishment were inadequate to reflect the appellant's culpability.”
Lord Hope agreed (para 69), calling the omission of the count 2 offence from the offences to which the relevant defence applied an “oversight” (para 67).
The dissenters interpreted the legislation as requiring the appellant to present herself to the UK authorities and to obtain valid travel documents if she wished to travel on to the United States, so both charges were justified. There was, on this view, no need to address the need for a remedy. On the majority approach, the appellant had still been fleeing from persecution when she was at Heathrow. The difference between the conclusions of the Law Lords here may not have occurred without this difference in perception of her situation.
The majority approach is an illustration of how injustice that would arise from a literal reading – and indeed from an ordinary and reasonable reading - of legislation can be avoided by a stay of proceedings at an appropriate time. This could not be taken as an illustration of the court refusing to enforce a statute, but it is a case where the unfair consequences of application of a statute were rejected and avoided by the court’s inherent power to prevent an abuse of process.
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