Disclosure, fair trial, truth and justice

No progress in development of the idea of the accused's right to a fair trial was made in R v Bjelland [2009] SCC 38 (30 July 2009).    

The remedy for untimely disclosure was discussed, and the court divided 4 – 3 on whether the availability of exclusion should be approached in a restricted way. The majority (per Rothstein J, with McLachlin CJ, LeBel, and Deschamps JJ) held that exclusion is only appropriate if there is no other way of protecting the accused's right to a fair trial or of avoiding compromise to the integrity of the justice system. Here, the judge had wrongly ordered exclusion because the trial could have been delayed further. The minority (per Fish J, with Binnie and Abella JJ) would not have reviewed the judge's decision as there had been no error on an approach that would have permitted wide discretion as to remedy, following the established approach to s 24(1) Charter.

So, what is a "fair trial"? The majority quoted (22) McLachlin J (as she then was) in R v Harrer 1995 CanLII 70 (S.C.C.), [1995] 3 S.C.R. 562 at 45:

"At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused's point of view: R. v. Lyons, 1987 CanLII 25 (S.C.C.), [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused." [Emphasis added by the majority in Bjelland.]

So, fairness means "basic procedural fairness". Ho ho. Now we know.

This was linked to the idea of the trial as a search for truth. I thought the police investigation was a search for truth, and the trial a test of the strength of the evidence presented as a result of that search. The minority thought so too (65):

"The policy of the law in this regard was well put by Samuel Freedman, then Chief Justice of Manitoba, in this well-known passage:

"The objective of a criminal trial is justice. Is the quest of justice synonymous with the search for truth? In most cases, yes. Truth and justice will emerge in a happy coincidence. But not always. Nor should it be thought that the judicial process has necessarily failed if justice and truth do not end up in perfect harmony. . . . [T]he law makes its choice between competing values and declares it is better to close the case without all the available evidence being put on the record. We place a ceiling price on truth. It is glorious to possess, but not at unlimited cost. 'Truth, like all other good things, may be loved unwisely — may be pursued too keenly — may cost too much.' "

"(S. Freedman, "Admissions and Confessions", in R. E. Salhany and R. J. Carter, eds., Studies in Canadian Criminal Evidence (1972), 95, at p. 99, quoting Pearse v. Pearse (1846), 1 De G. & Sm. 11, 63 E.R. 950, at p. 957.)"

Nothing further was offered by the minority on what is a "fair trial".

The majority also held that the right to make full answer and defence does not include as a component the right to cross-examine at preliminary hearing (35). That is no doubt correct now that disclosure regimes have been formalised. No doubt there could be cases where the right to make a full answer requires an opportunity to cross-examine at preliminary hearing, but that opportunity would not amount to a general "right".

Choice

Capacity to make a choice requires understanding, weighing of information, and choosing:

"the case law on capacity has for some time recognised that, to be able to make a decision, the person concerned must not only be able to understand the information relevant to making it but also be able to "weigh [that information] in the balance to arrive at [a] choice": see Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290, 295, approved in Re MB (Medical Treatment) [1997] 2 FLR 426."

per Baroness Hale a para 24 of R v C [2009] UKHL 42 (30 July 2009). The choice must be autonomous (free) and must not be driven, for example by a compulsion, delusion, or phobia (25).

Inability to communicate a decision to refuse consent amounts to an inability to make a decision (29).

This was said in the context of the Sexual Offences Act 2003[UK], s 30(1) and (2), but its core is no doubt of wider relevance. It could apply wherever a "decision" is required (avoiding the words "consent" or "refuse"), as in Crimes Act 1961[NZ], s 138.

The two cultures

Answers to jury questions must be responsive and must not deter further questions: R v Layton [2009] SCC 36 (23 July 2009).

If the jury has a copy of the judge's summing up then mere repetition of the words used in it is not likely to be responsive. Here, a direction on the standard of proof led to a question seeking clarification. A difficulty arose because the law is reluctant to elaborate on what "beyond reasonable doubt" means, apart from the standard direction.

It is easy to see why the phrase "beyond reasonable doubt" causes trouble to jurors. It is a description of the required level of proof, which may be thought of as going in one direction, yet at the same time it is expressed in terms of doubt, which tends in the other direction.

As lawyers we are so used to the expression "beyond reasonable doubt" that we take its meaning for granted, ignoring this contradiction in the composite concepts. Even though juries frequently ask for further assistance on the meaning of "beyond reasonable doubt" (see also R v Griffin [2009] SCC 28 noted here 19 June 2009), the law is not clear on what more should be said.

In Layton the standard R v Lifchus, 1997 CanLII 319 (S.C.C.), [1997] 3 S.C.R. 320 direction had been given. In the second day of its deliberation the jury returned with this question:

"Jury requests clarification on reasonable doubt section of charge to the Jury. Particularly difference between absolute certainty and balance of probabilities"

citing the relevant part of the standard direction.

In the terms I mentioned above, although the first sentence refers to doubt, the second is about proof.

The standard direction contained this phrase: "...the reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities."

Given that the jury had this in writing, why the question?

It's a mystery to lawyers, and it is not surprising that counsel in this trial had been unable to offer much by way of assistance to the judge in her preparation of the answer.

Perhaps the jury was really seeking clarification on doubt: how much difference is there between no doubt (absolute certainty) and the balance of probabilities? That is a sensible question, because proof on the balance of probabilities can be achieved by elimination of any of a range of doubts. To put it mathematically (as the law doesn't but as people do tend to: see note on R v Wanhalla 25 August 2006), proof on the balance of probabilities may leave no doubt, or up to 49% of doubt. It would be over-proof, but the result would be the same for leaving any level of doubt in that range. For example, if a doubt of 25% remained, it would still be correct to say that the plaintiff had proved his case on the balance of probabilities. So too if the doubt was 10% or 49%. But if the doubt was 51% or more the plaintiff would have failed to prove his case on the balance of probabilities.

The most helpful way of answering the question would be to say that the balance of probabilities is satisfied even though there may be 49% doubt, and absolute certainty is where there is zero doubt. The criminal standard of proof tolerates much less doubt than the balance of probabilities: much closer to zero doubt than to 49% doubt.

But the law doesn't approve of the use of approximate figures or mathematical analogies. The two cultures persist.

Aiming les brickbats at le top

A full eleven days after the decision in Matenga v R [2009] NZSC 18 (13 March 2009, mentioned in note of 9 July 2009) came to my attention, thanks to the Privy Council, I am still a bit grumpy.

Fact-finders: judges compared with juries

A pivotal part of the reasoning in that case is this sentence, beginning para 18:

"It is artificial to say that Judges, while holding one view themselves, may ascribe a different view to the hypothetical jury."

The assumption is that the appellate judges will hold a view of the appropriate verdict in the first place.

It is officially known that juries do not always reach the same verdict that trial judges would have. The New Zealand Law Commission has published a study on juries: "Juries in Criminal Trials – Part Two" Preliminary Paper 37 – Volume 2 (Wellington, November 1999). There, at para 9.3 – 9.4, the authors summarise results on jury agreement and disagreement with the judge in the trials studied:

"9.3 The judge and jury were essentially agreed on the appropriate verdict in 24 out of the 48 trials. These comprised: 17 verdicts of guilty on all or most counts; six verdicts of not guilty; and one verdict of not guilty by reason of insanity. In a further 11 trials, where there was disagreement between judge and jury as to the appropriate verdict on one or more of the counts in the indictment, the jury's view appeared to be reasonable and supportable on the evidence. In most of these cases, the disagreement simply resulted from differences in the assessment of the credibility of key witnesses, but in one case the jury based its verdict on features of the evidence, clearly establishing guilt on one of the counts, which the judge overlooked. Moreover, in many of these cases, judges were in fact hesitant about their view (sometimes making a point of stating that they did not think about it during the trial), and asserted that the jury could reasonably take a different view of the facts from that which they expressed to us. Overall, therefore, a verdict which was either fully supported by the judge or supportable on the evidence was given in 35 out of the 48 trials.

"9.4 In the remaining 13 trials, five were classified as "compromise" verdicts in multiple count cases; three were classified as either perverse or questionable verdicts; and five involved fully hung juries... ." [emphasis in para 9.3 added]

There was no need for Matenga to decide that an appellate court should take on the fact finding role of a jury. But the Court thought this was required by the existence of the proviso:

"[29] Following conviction, after a fair trial by jury, Parliament has given the appeal courts an ability to uphold the conviction despite there being a miscarriage of justice in some respect. While the jury is in general terms the arbiter of guilt in our system of criminal justice, the very existence of the proviso demonstrates that Parliament intended the Judges sitting on the appeal to be the ultimate arbiters of guilt in circumstances in which the proviso applies."

The other view – the one that I suggest is traditional - is that the proviso requires the appellate court to be the ultimate arbiter of the fairness of the trial. That would involve determining whether the law was properly applied to facts determined impartially. Did the error, the miscarriage of justice, give rise to a real risk that the tribunal of fact was rendered partial? Many appeals, where the proviso could not be applied, would be concerned with trials that had not been fair. In deciding fairness, the appellate court does not have to reach its own verdict.

What is a "fair trial"?

Unfortunately, in Matenga the Court seems to have removed much of the content of the concept of a fair trial. This occurred by treating the requirement for a fair trial as something that could be satisfied notwithstanding that further issues of the substantiveness of the miscarriage needed to be decided. The risk is that this reduced concept of a fair trial will be nothing more than a trial by a lawfully constituted tribunal exercising lawful jurisdiction. That is a requirement for a "trial" but it doesn't establish that the trial was "fair".

The idea of a fair trial is important because if the trial was unfair Matenga does not require the appellate court to embark on deciding its own verdict. Yet Matenga, while acknowledging that the accused's right to a fair trial is an absolute right, does not say what a fair trial is. In cases where the trial transcript is a bulky document, appellate judges will be grateful for the opportunity to avoid its close study by deciding the appeal on fairness grounds. But how?

The good bits

It must be acknowledged that Matenga anticipates that wherever there is a credibility contest the proviso will be unlikely to be applied. That was the position in Matenga itself, and there was no detailed discussion of the contentious evidence.

"29 ... considerable caution is necessary before resorting to the proviso when the ultimate issues depend, as they frequently will, on the assessment of witnesses."

Many cases are of that nature. Many others consist of incriminating circumstances and an explanation tendered by the accused; in those the "assessment of witnesses" may focus only on the accused. Even so, Matenga suggests that there also the appellate court would exercise "considerable caution" before dismissing the appeal. So Matenga may be reserved for cases where the prosecution case is circumstantial, where the accused does not give evidence, and where the error at trial would not have prevented a fair trial. Barlow (noted here 9 July 2009) was treated by the Privy Council as an example, although it is open to question on trial fairness grounds: was the jury made partial by being given evidence which may not have been as reliable as it then appeared to be?

Final jette un brickbat

Dissatisfaction with an appellate court's conclusion that a guilty verdict was correct can arise from below (we, the people) or above (the court of second appeal, as in Matenga). Jury trials were invented to place responsibility for the verdict in the best hands. It is better that criticism should be directed at juries than at the judiciary. The jury study shows that the reasonableness of judges as fact-finders is not a given. Judges should stick to their knitting.

Decision tree or impenetrable thicket?

A difficulty with the balancing exercise described in R v Grant (noted here 18 July 2009) is that there is no indication of when an offence is sufficiently serious to make admission of the improperly obtained evidence a likely outcome.

This difficulty is illustrated in another decision delivered the same day as Grant and applying that case: R v Harrison [2009] SCC 34 (17 July 2009).

The appellant had been driving a hired car which was stopped on a highway by a police officer. The officer did not have sufficient grounds to carry out the search of the car which revealed two cardboard boxes. These contained a total of 35 kg (yes, kilograms) of cocaine.

Again, the Court split. This time the only dissenter was Deschamps J. She would have ruled the evidence admissible.

All judges agreed that the offence was very serious. How could they not? Deschamps J said the offence was at practically the highest point in the spectrum of importance of the public interest in adjudication on the merits (68). McLachlin CJ for the majority said (34) "While the charged offence is serious, this factor must not take on disproportionate significance."

This highlights the underlying forward-looking approach to protecting the repute of the administration of justice, encapsulated in Grant at (84):

" ... The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high."

Critics (and I am one) will say this undervalues the public interest in prevention of the harm caused by criminal activity. Does the breach of Charter-protected interests in Harrison really outweigh the harm to society that 35 kg of cocaine could cause?

The majority in Grant described the evaluation of interests as a "decision tree" (Grant, 86). Unfortunately they did not draw the tree for us. Had someone stolen their crayons?

To be fair, I think the appropriate model is not a decision tree but rather a list of quantities of each of the three items. The decision depends on the total of the quantities. Score for the seriousness of the official misconduct, add a score for the impact of that misconduct on the defendant's rights, and then add (or subtract, if it goes against the trend of the others) another score for society's interests in adjudication of the case on the merits. If the end result is a total that supports admissibility, then that is the decision. The problem becomes - or is revealed to be - one of anticipating total scores that will be required for admission of the evidence.

Update: The approach to the model just mentioned, a move away from a decision tree, is consistent with the Court's summary of the way Grant is to be applied in R v Lafrance, 2022 SCC 32 (22 July, 2022) at [90] (majority judgment; the minority did not need to address this point). The first two factors are to be assessed cumulatively, and then against the third.

Detention: will R v Grant work?

Having just stated a test for detention (R v Grant, last note today's date), the Supreme Court of Canada has disagreed on its application: R v Suberu [2009] SCC 33 (17 July 2009).

The 5 – 2 split decision suggests the test will be misapplied nearly 29% of the time. And the facts couldn't have been simpler. They are summarised in the headnote as follows:

"Constable R responded to a call about a person attempting to use a stolen credit card at a store. He was advised that there were two male suspects. R entered the store and saw a police officer talking to an employee and a male customer. S[uberu] walked past R and said "He did this, not me, so I guess I can go." R followed S outside and said "Wait a minute. I need to talk to you before you go anywhere", while S was getting into the driver's seat of a minivan. After a brief exchange, R received further information by radio, including the description and licence plate number of the van driven by the men who had used a stolen credit card at another store earlier that day. The description and the licence plate number both matched that of the van in which S was sitting. R also saw shopping bags between and behind the front seats. At this point, R decided that he had reasonable and probable grounds to arrest S for fraud. He advised S of the reason for his arrest and cautioned him as to his right to counsel."

Was the accused detained when R said "Wait a minute. I need to talk to you before you go anywhere"?

The definition of detention in R v Grant is purposive; it is summarised in Grant at 44, and is quoted at para 25 of the majority judgment in Suberu (delivered by McLachlin CJ and Charron J, with LeBel, Deschamps and Abella JJ):

"1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

"2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication."

Applying this, the majority held that Mr Suberu had not been detained (32 – 35). On factor (a):

"32 ... As a whole, the circumstances of the encounter support a reasonable perception that Constable Roughley was orienting himself to the situation rather than intending to deprive Mr. Suberu of his liberty. Further, as noted, Mr. Suberu did not testify or call evidence on that matter. In summary, the circumstances, as revealed by the evidence, do not suggest detention."

And factor (b):

"33 ... it is relevant to note that Constable Roughley made no move to obstruct Mr. Suberu's movement. He simply spoke to him as he sat in his van... Taken as a whole, the conduct of the officer viewed objectively supports the trial judge's view that what was happening at this point was preliminary questioning to find out whether to proceed further."

And factor (c):

"34 ... Mr. Suberu did not testify on the application, and there was no evidence as to whether he subjectively believed that he could not leave. Nor was there evidence of his personal circumstances, feelings or knowledge. ... The Officer testified that Mr. Suberu never told him that he did not wish to speak with him, and that the conversation was not 'strained'."

The dissenters, Binnie J and Fish J, did not agree with that assessment. Binnie J delivered the substantive dissent. He accepted that the test laid down by the majority (of which he was not a part) in Grant applied. The trial judge had found there was a "momentary investigative detention", and the majority should apply the deference that they had indicated was appropriate to the fact-finding court in Grant (Suberu at 57).

"56 The verbal exchange between Constable Roughley and Mr. Suberu clearly established an unambiguous police order. When Mr. Suberu walked past Constable Roughley, saying, 'He did this, not me, so I guess I can go', and Constable Roughley replied, 'Wait a minute. I need to talk to you before you go anywhere', it was a command to stay put. Constable Roughley's words were only ambiguous if one ignores the preceding remark from Mr. Suberu. Constable Roughley was replying to Mr. Suberu, who had essentially said, 'Can I leave?', by essentially saying, 'No'. It was clear to Mr. Suberu that he was not free to go "anywhere" and any reasonable person in that position would have come to the same conclusion. At that point there was, within the meaning of the test in Grant, a detention, in my view, which was unsupported at that stage by any grounds of reasonable suspicion as required by R v Mann, 2004 SCC 52 (CanLII), 2004 SCC 52, 2004 SCC 52 (CanLII), [2004] 3 S.C.R. 59. My colleagues point out correctly that Constable Roughley did not try physically to obstruct Mr. Suberu's movement but that is why this is a case of psychological, not physical, detention." [Binnie J's emphasis on the word psychological]

There is no suggestion of smugness in Binnie J's observation (61) that on his dissenting approach in Grant, which attached more importance to the police perspective, detention might not have been established here.

"61 ... It is the perspective and information of the police, not the claimant, that will often determine whether the liberty interest of the person stopped was truly engaged."

Obviously both perspectives should be considered. A person can be under detention without knowing it, or he can reasonably think he is under detention when he isn't. The former requires compliance with the person's rights because of the police purpose of collecting incriminating information, and the latter requires compliance because of the coercive nature of reasonably apprehended detention.

A new look at s 24(2) Canadian Charter

Some people can engage in three-dimensional balancing without mentioning the electrodynamics of moving bodies. They are the Supreme Court of Canada in R v Grant [2009] SCC 32 (17 July 2009).

My sarcasm should not be seen as radical disagreement. The Supreme Court has tidied up the reference to trial fairness that had clouded the decision on whether to exclude evidence that had been obtained in breach of a Charter right. This clouding arose from common law elaboration of s 24(2):

"(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute."

The Court declined to follow its decisions in R v Collins, 1987 CanLII 84 (S.C.C.), [1987] 1 S.C.R. 265; and R v Stillman, 1997 CanLII 384 (S.C.C.), [1997] 1 S.C.R. 607.

There is now to be a three-armed balancing exercise (gulp). These are: (1) the seriousness of the Charter-infringing State conduct, (2) the impact of that on the Charter-protected interests of the accused, and (3) society's interests in the adjudication of the case on its merits.

All members of the Court agreed in the result of the appeal. Deschamps J did, I suggest, propose a more rational balancing exercise. This requires two things to be balanced against each other. Doing that is at least a more manageable two-dimensional exercise. The two dimensions are: (1) the public interest in protecting Charter rights, and (2) the public interest in an adjudication on the merits.

The majority's arms (1) and (2) are able to be accommodated on one arm of the balance. That is what we do in New Zealand. The Grant factors amount to the same considerations treated in what will probably be recognised as the same way.

Few would dispute the result in Grant. The accused had been in possession of a firearm (a revolver, carried in a waist pouch) near a school. He also had some marijuana. It seems that he was only charged with five firearms offences. The most serious of those involved the element of trafficking, which was also discussed in this appeal. It was held, unanimously, that the circumstances did not amount to possession of the firearm for trafficking (transfer to another person), and the appeal against conviction for that offence was allowed. The other convictions were upheld.

The decisive factor is the proximity of the armed accused, at the relevant time, to a school. That made the public interest in adjudication on the merits outweigh the factors on which the accused relied: his arbitrary detention, breach of his right to counsel, and unreasonable bodily search. Those breaches arose from absence of adequate grounds, but the police had acted in good faith, and the accused was not subjected to gratuitous unpleasantness.

The meaning of "bring the the administration of justice into disrepute" was elaborated (68):

"The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute."

The approach to derivative evidence was also clarified. Difficulties with this sort of evidence arise when there is some attenuation of the breach of the accused's rights: when does the breach no longer outweigh public interests in admission of the evidence?

Inevitability of discovery of the evidence is no longer determinative (121).

"[122] Discoverability retains a useful role, however, in assessing the actual impact of the breach on the protected interests of the accused. It allows the court to assess the strength of the causal connection between the Charter-infringing self-incrimination and the resultant evidence. The more likely it is that the evidence would have been obtained even without the statement, the lesser the impact of the breach on the accused's underlying interest against self-incrimination. The converse, of course, is also true. On the other hand, in cases where it cannot be determined with any confidence whether evidence would have been discovered in absence of the statement, discoverability will have no impact on the s. 24(2) inquiry."

That analysis overlooks the temporal and contextual approach in R v Wittwer [2008] SCC 33 (noted here 6 June 2008), a case not cited in Grant.

The treatment of the right to a fair trial is rather superficial: no attempt is made to develop its meaning. Instead (65):

" ...It is difficult to reconcile trial fairness as a multifaceted and contextual concept with a near-automatic presumption that admission of a broad class of evidence will render a trial unfair, regardless of the circumstances in which it was obtained. In our view, trial fairness is better conceived as an overarching systemic goal than as a distinct stage of the s. 24(2) analysis."

Grant, in rejecting the relevance of trial fairness as a balancing factor, is consistent with the recognition of the right to a fair trial as an absolute right. However, given its absolute nature, something more precise could have been said about it. (Here is my effort to draw a tree based on the Grant approach.)

From leaf to long knife

Another glimpse into the picturesque life of Jamaicans: Jackson v R (Jamaica) [2009] UKPC 28 (07 July 2009).

Lord Rodger delivered the judgment of the Judicial Committee, in a tone that strikes me as darkly humorous. I might be quite wrong about that, as, after all, this was a tragic murder and a long delayed meritorious appeal.

The events started with the falling of a ripe leaf from an ackee tree.

Image from ackee-tree.com

The resulting struggle involved machetes or cutlasses, a shovel, an axe and probably a lead pipe. Shortly after that, someone was "juked" (stabbed) in the back with a cutlass – but this was not particularly serious. The final events, in another incident soon afterwards, involved beatings with cutlasses, and iron pipe, and a fatal stab with a long knife.

The stabber joined in during the attack by two others; three people – the appellants - were charged and convicted of the murder. The only apparent injury to the victim – apart from some blood on his leg (a witness had said "It look like he get a lick … I saw, like when you lick somebody – like when a person get a hearty lick and a settling of blood here") - was the stab wound, so it was obvious that the beatings had not been intended to cause significant injury. This, then, was a case of extended secondary liability as far as two of the appellants were concerned, and of identity for the alleged stabber.

The law had been settled in R v Rahman [2009] 1 AC 129, 165, para 68 (noted here 3 July 2008). The trial judge did not have the advantage of reading that decision. His direction to the jury was defective; Lord Rodger at 15 cites this example:

"Is Dane Miller talking the truth when he said that these men and some others draw out himself and his father, his father ran and fell, one of them stabbed him in the chest: that is the case? If you believe that it happened that way, then all three of them will be guilty of murder, all three."

The Board applied Rahman:

"14. The facts that they were using the flat of the blades and that so little by the way of injury to the deceased was actually inflicted by those blows make it difficult to draw the inference that the attackers (apart from the one who carried out the stabbing) intended to cause serious bodily harm or that any individual attacker would have realised that any other participant might kill or intentionally inflict serious injury on the deceased. While it is therefore unnecessary for the Board to reach a conclusion on the point, their Lordships incline to the view that, given the way that only the flat of the machete blades was being used, the long knife was indeed a "more lethal weapon" and the stabbing was "fundamentally different" from anything foreseen by the other participants."

In the absence of any evidence that the two assailants (not the stabber) intended serious injury or knew that the third person intended serious injury, there was no occasion for a retrial: the convictions of those two appellants were quashed. They had spent at least five years in prison.

The third appellant denied that he was the stabber, and the Board decided that the judge had not differentiated sufficiently between the three accused, all of whom had been represented by the same counsel. The jury might have convicted him on the basis that all three were together, without properly assessing the probative value of the eyewitness who identified him as the stabber. His conviction was quashed and his case remitted to the Court of Appeal for a decision on whether there should be a retrial.

The appellate jury

New Zealand's new approach to the proviso has been revealed by the Privy Council. The Board fearlessly disclosed parts of the Supreme Court's decision in Matenga v R [2009] NZSC 18 which has been embargoed pending a retrial. The new approach is set out for us in R v Barlow [2009] UKPC 30 (8 July 2009).

The Supreme Court of New Zealand has adopted, with some modifications, the approach to the proviso taken by the High Court of Australia in Weiss v R (2005) 224 CLR 300 (noted here 16 January 2006). For reaction to Weiss in Australia, see “The Problematic Proviso: the vice of Weiss” (2007) 140 (Autumn) Victorian Bar News 32 by Phillip Priest QC, who comments “Weiss caused a shockwave to sweep through the ranks of criminal appellate lawyers and judges. The High Court radically altered the ambit of the proviso, sweeping away decades of accepted wisdom.”

Two departures from the Weiss approach are established in Matenga (according to Barlow).

The first departure from Weiss

This has several aspects. Not all errors at trial qualify to be called miscarriages of justice. Errors that "plainly" could not have affected the result of the trial don't count as miscarriages in the relevant sense. "A miscarriage is more than an inconsequential or immaterial mistake or irregularity." (para 30 Matenga, quoted in Barlow at 19)

If the error counts as a miscarriage in the required sense, namely that it was capable of affecting the outcome of the trial, the next question is whether it actually did have that effect "in reality": (Matenga 31)

"The court may exercise its discretion to dismiss the appeal only if, having reviewed all the admissible evidence, it considers that, notwithstanding there has been a miscarriage, the guilty verdict was inevitable, in the sense of being the only reasonable possible verdict, on that evidence. Importantly, the Court should not apply the proviso simply because it considers there was enough evidence to enable a reasonable jury to convict. In order to come to the view that the verdict of guilty was inevitable the Court must itself feel sure of the guilt of the accused. Before applying the proviso the Court must also be satisfied that the trial was fair and thus there was no breach of the right guaranteed to the accused by s 25(a) of the Bill of Rights".

The second departure from Weiss

This is quoted in para 20 of Barlow, from para 33 of Matenga:

"The High Court [of Australia in Weiss] said that the appellate court's task under the proviso was to be undertaken on the whole of the record. That is correct. However, it expressly included in the record the fact that the jury has returned a guilty verdict. Whilst the verdict may indicate the jury's view on some question unrelated to the miscarriage, the appeal court must form its own view on whether a finding of guilt was, notwithstanding the miscarriage, the only reasonably possible verdict."

 What about R v Bain?

In R v Bain (New Zealand) [2007] UKPC 33 (noted here 11 May 2007) the Board declined to apply the proviso, emphasising (para 25) that the appellate court "is not the ultimate arbiter of guilt, save in the practical sense that this is the effect of applying the proviso, or ruling that the new evidence could not reasonably have affected the result."

In Barlow (21) the Board was coy about the whether the Matenga approach was different, but it thought the result in Bain would have been the same under Matenga:

"Not having been addressed by counsel on the point, their Lordships express no view as to whether and, if so, to what extent, there is a conflict between the approach prescribed by the Supreme Court in Matenga and the approach adopted by the Board in Bain. But they are satisfied that, even if the approach in Matenga had been applied, having regard to the new evidence in that case, there would have been no room for the application of the proviso and the result of the appeal would have been the same. However that may be, in the absence of any submissions to the contrary, and without reconsidering the point for itself, the Board considers it appropriate to apply the approach of the Supreme Court in Matenga to the interpretation and application of section 385(1)(c) and the proviso."

The Board showed no sign of eagerness to apply Matenga in all the legal systems it serves.

The trial fairness requirement

Upon identification of qualifying error or errors, the application of the proviso is addressed by first asking whether the trial had been made unfair (Barlow 58). Fairness is judged in the light of the proceedings as a whole. The test is whether the departure was such as to go to the root of the proceedings, in the sense used in Wilde v The Queen (1988) 164 CLR 365, 372, per Brennan, Dawson and Toohey JJ and approved in Howse v The Queen [2005] UKPC 31, [2006] 1 NZLR 433 (PC).

If the court is satisfied that there was no such unfairness, it proceeds to the next question, whether the error may have actually affected the result of the trial.

A potential inconsistency with the new role of judicial fact finding is the inquiry into fairness, which necessarily requires determining whether the miscarriage could have caused the jury to misapply the law or to reason wrongly or to give improper weight to items of evidence. This goes back to the former approach of asking how the jury, not the judges, would have decided the issue.

Appellate judges as jurors

So, on appeal the judges do not try to guess what a jury would have decided. They have to assess the whole of the admissible evidence and decide whether they are satisfied beyond reasonable doubt that the conviction is correct.

Barlow illustrates the way the Board embarks on this task. It used the judge's summing up to the jury as a convenient summary (this was a fresh evidence appeal, not a case where the summing up was alleged to be defective), plus obvious circumstances that the defence relied on. The approach was not a minute and detailed examination (in the judgment) of the arguments for and against every possible inference (that was the approach that the Court of Appeal had wrongly taken in Bain), but instead the Board noted four "very obvious aspects" of the prosecution case with which it was "particularly struck" (67 – 71).

The new approach to the proviso will expose appellate judges to criticism by people who disagree with their evaluation of the evidence. It can be seen as a qualification on the right to trial by jury: you have the right to jury trial, but if that trial is not conducted according to law in a material way, your guilt or innocence will be determined by judges on appeal. There need be no second attempt to give you a lawful trial.

So when will retrials be ordered? Given that they are now fact finders, if the appellate judges have a reasonable doubt about the appellant's guilt, why don't they order an acquittal? Ordering a retrial looks like double jeopardy. In Barlow that issue did not arise.

Friends at law

For reasons not to be suspicious of barristers and judges, see Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72 (3 July 2009).

The case is about how to decide when apparent judicial bias exists. Although a civil case, it is relevant to criminal law and the accused's right to a fair trial.

It is a reminder of what the independent bar is all about. Barristers are independent of their clients, as well as from anything that could deter them from their task of ensuring that the judicial process is correct in law.

Judges share that objective, so bench and bar are engaged in the same task. This means that judges couldn't care less which barrister wins or loses, and barristers couldn't care less (surprising though this may seem) whether their clients win or lose. It is the process that matters.

Inevitably, there will be times when judges know barristers in cases before them quite well. They may even share business interests. That is completely irrelevant in the courtroom. But does it look OK?

The impression gained by the fair minded observer is the touchstone. She (for she is apparently woman: Helow v Secretary of State for the Home Department [2008] UKHL 62, noted here 23 October 2008) will be aware of these characteristics of the judicial process: Saxmere para 6 per Blanchard J. These are the points made in Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 135 ALR 753, 767 (Fed CA), quoted by Blanchard J at para 7 of Saxmere.

She will be aware of the judicial oath and the obligation of judges to hear the case that has been allocated to them and not to pick and choose which case they will hear. She will remember that the party seeking to overturn a decision for reasons of apparent bias may well be the least objective observer of all. At the same time, she will realise that judicial protestations of absence of influence are not decisive, as unconscious bias may have operated. Before she perceives apparent judicial bias, she will need to identify what it is that might lead a judge to decide a case on other than its legal and factual merits, and she must be able to point to a logical connection between that thing and the feared deviation from deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at para 8.

[Update: this judgment has been recalled and the orders made in it set aside, and the case was remitted to the Court of Appeal for rehearing: [2009] NZSC 122 (27 November 2009). This was because the Supreme Court had not been made aware of all the matters relevant to apparent bias, and if the Court had known of them it would have concluded that apparent bias was established.]