Relevance, probative value, and Bayesian reasoning

Peter Tillers has drawn everyone's attention to an interesting discussion of relevance, "Bayesian Wars Redivivus – An Exchange" in International Commentary on Evidence, Vol 8, Issue 1, Article 1 (2010).

Relevance

Definitions of relevance can appear to be inappropriately restrictive. In New Zealand we have an example in s 7 of the Evidence Act 2006 (compare rule 403 of the Federal Rules of Evidence 2010). Critically, subsection (3) defines relevant evidence:

"Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding."

Inevitably, however, there are many facts in a case that are not in dispute but that are relied on to give context to the relevant facts. These contextual matters are often called narrative. Strictly speaking, they do not in themselves tend to prove anything, but they help to explain why other evidence does have the necessary tendency. A generous reading of s 7(3) is needed: it could encompass narrative evidence if "evidence" is understood as including the evidence that explains the "tendency to prove or disprove".

Neutralising the opponent's evidence

Sometimes, each party may rely on the same narrative evidence but will invite a different inference from it. A defence stratagem is to neutralise prosecution evidence by showing that it is consistent with innocence, and this applies to narrative evidence too.

This leads to a paradox: if a narrative fact is not in dispute, but is equally consistent with guilt as with innocence, it is needed by both parties even though its tendency to prove a matter in issue is neutral; it is relevant in ways that cancel each other out. Does neutralisation destroy relevance?

This paradox disappears if s 7(3) means that equal and opposite tendencies are still tendencies, because each must be considered separately.

A problem for Bayesian logic?

The tendency requirement for relevance says nothing about the strength of that tendency. The strength of the tendency of relevant evidence to prove a matter in issue is called the probative value of that evidence. In Bayesian logic probative value is expressed as a likelihood ratio. Essentially this is a way of asking (for prosecution evidence) how much more consistent is the evidence with guilt than it is with innocence.

In some ways it is unfortunate that the adjective Bayesian has attached to this thought process, because it is an ordinary and natural way of addressing the question of the strength of the probative value of evidence. There is not even anything necessarily mathematical about it, as strengths and likelihoods can be assessed without numbers.

Much of the argument in the paper cited above is concerned with how a likelihood ratio is to deal with common reliance on the evidence without rendering it irrelevant. I think there is some crossing of the wires here: probative value is treated in this discussion as if it was relevance. This error is introduced by Ronald Allen at p 10 of the exchange. Roger Park tries to correct it at p 11, but David Kaye thinks it makes a different point (p 11). Ronald Allen emphasises his assertion of a problem that a likelihood ratio of one makes for relevance at p 12, David Kaye discusses the probative values in reply (p 12), and Ronald Allen's rejoinder (p 13) corrects the tendency to think that changing probative value changes relevance, while seeming to suggest that it was David Kaye who said that if both sides rely on the evidence it is not relevant at all, when really it was Ronald Allen himself who suggested that this is implicit in Bayesian reasoning. Ronald Allen thinks it is difficult to determine relevancy until all the evidence has been heard (p 13) – but I think that is because he confuses relevancy with probative value. Samuel Gross seems to agree that relevance cannot be assessed without the other evidence (p 15). Bruce Hay usefully distinguishes between the function of the judge and that of the jury (p 19). Peter Tillers chips in with a defence of the proper use of Bayes' Theorem (pp 20-21). David Kaye mentions what I have here called narrative evidence, at p 24. Ronald Allen comes down hard against Bayesianism (p 25) although he acknowledges it has some use (p 26). David Kaye brings narrative evidence into a Bayesian approach (p 29), and then Peter Tillers brings the discussion to cows (p 30) and common sense (the "stories" approach to probative value).

The reality is that juries are commonly told that they may decide to give particular evidence little or no weight (probative value) notwithstanding that it is (necessarily) relevant evidence. Evidence can be relevant although it has only a slight tendency to prove the matter contended for, and it will be admissible unless excluded by some other rule, and its probative value – assessed in the context of all the relevant evidence in the case – may be similarly slight yet its impact on the result of the case will depend on the priors (that is, how close the other evidence brings proof of the prosecution case to the required standard).

Bayesian reasoning can be useful on the issue of admissibility where it can be shown that the likelihood ratio is close to one (the evidence is nearly as consistent with innocence as it is with guilt) if other circumstances in the case make the evidence in question liable to exclusion because of its illegitimately prejudicial effect (see s 8 of the Evidence Act 2006; rule 403 of the Federal Rules). Evidence that is merely narrative should not have the necessary prejudicial effect to require exclusion, but it is commonplace to encounter exclusion of other relevant evidence because of its prejudicial effect.

Stories or statistics?

Usually people decide what to believe on the basis of what seems, without the need for further inquiry, to be consistent with common sense. They are using experience as the basis for judgment. They would have to concede that other people's experience can be useful in helping them make that judgment, and that that experience may come from statistical studies. The usefulness of scientific studies, the results of which are presented statistically, cannot be denied. They can distinguish factual from fictional stories. The significance of probabilities for logical reasoning must be recognised, and the inescapable influence of conditional probabilities on the correct determination of judicial proceedings must be utilised by fact-finders.

Accounting for guilty pleas – justice, not economics

Whereas South Australia v Totani (last note) illustrated the error of a legislature in depriving a court of its judicial function, Hessell v R [2010] NZSC 135 illustrates a departure by a court (here, the lower appellate court) from its judicial function.

This is only hinted at obliquely. The Court was highlighting the inappropriateness of a formulaic approach to the level of sentence discount to be awarded for entry of a plea of guilty. The Court of Appeal in this case had issued a guideline judgment on discounts for guilty pleas, setting out a sliding scale according to the stage of the proceedings at which the plea was entered. The Supreme Court overruled that:

"[67] The law reform agencies in the United Kingdom and New Zealand saw valid reasons to move to a more prescriptive and structured approach to giving credit for guilty pleas in sentencing. The Court of Appeal was persuaded by their reasoning. But in giving effect to their proposals, the Court of Appeal has underestimated the complexity of the issue including the potential of the changes to impact on the protected rights of persons charged with criminal offending. It is also inappropriate for a court to make changes in sentencing policy that would restrict the capacity of judges to determine sentences that are considered to fit all the circumstances of the case. Where the development of sentencing policy is motivated by a utilitarian calculus it may not be appropriate for judicial decision. Judges should show restraint in moving beyond the area mandated by existing legislation when exercising their sentencing powers. The ultimate difficulty we have with the Court of Appeal's approach is that it is not mandated by the Sentencing Act." [emphasis added]

The Supreme Court's approach recognises the need to avoid coerced guilty pleas, and to protect the defendant's right to dispute the facts and to challenge the admissibility of evidence.

Sentencing involves the consideration of a range of circumstances, one of which may be a guilty plea, and the significance of such a plea has to be assessed in all the relevant circumstances of the case. However, the Court added that discounts for guilty pleas should not exceed 25%, as remorse is a separate consideration for which more credit may be due.

The Australian approach (R v Wong [2001] HCA 64, (2001) 207 CLR 584 at [76] per Gaudron, Gummow and Hayne JJ; R v Markarian [2005] HCA 25, (2005) 228 CLR 357 at [37] per Gleeson CJ, Gummow, Hayne and Callinan JJ) was preferred to that in the United Kingdom, although New Zealand uses more of an "instinctive synthesis" of gravity and culpability than does Australia: Hessell at 55.

Fundamentally, the Court of Appeal had addressed the question from a point of view that was distorted by non-judicial concern with administrative efficiency.

When laws go crazy

People interested in whether a legislature may require a court to act unjustly may get some pointers from French CJ's judgment in South Australia v Totani [2010] HCA 39 (11 November 2010).

This case was decided in the context of Australia's constitutional arrangements, but some fundamentals of interest to everyone are evident.

French CJ began by referring to the assumption of judicial independence which underlies the constitution [1] and which has its origin in English law [59], where fairness and impartiality were recognised as characteristics of proceedings in courts of justice [60]. While the characteristics of a court cannot be defined in a single all-embracing statement, an essential is the conduct of an adversarial trial by an independent and impartial tribunal [62]:

"At the heart of judicial independence, although not exhaustive of the concept, is decisional independence from influences external to proceedings in the court, including, but not limited to, the influence of the executive government and its authorities [footnote: As to the multiple location of judicial decisional independence in separation-of-powers protections providing for "judicial independence" and within the rubric of "due process" and "the rule of law", see Gerangelos, The Separation of Powers and Legislative Interference in Judicial Process, (2009) at 8]. Decisional independence is a necessary condition of impartiality. Procedural fairness effected by impartiality and the natural justice hearing rule lies at the heart of the judicial process [footnote: For a recent discussion of the natural justice hearing rule in this context, see International Finance Trust Co Ltd [2009] HCA 49; (2009) 240 CLR 319 at 379-384 [139]- [150] per Heydon J.]. The open-court principle, which provides, among other things, a visible assurance of independence and impartiality, is also an "essential aspect" of the characteristics of all courts, including the courts of the States [footnote: Russell v Russell [1976] HCA 23; (1976) 134 CLR 495 at 520 per Gibbs J; see also at 505 per Barwick CJ, 532 per Stephen J; [1976] HCA 23]."

Important for this case, but also of potential general application, is the idea that a legal system cannot require a court to act in a way which impairs its "institutional integrity". In the context of Totani, this idea appears as [69(3)]:

"The institutional integrity of a court requires both the reality and appearance of independence and impartiality [Footnote: Forge [2006] HCA 44; (2006) 228 CLR 45 at 77 [66] per Gummow, Hayne and Crennan JJ, citing Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 345 [7]- [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ]."

And the fundamental nature of that requirement - the reality and the appearance of independence and impartiality - is historical, pre-dating Australia's federation [72]:

"...Forms of external control of courts "appropriate to the exercise of authority by public officials and administrators" are inconsistent with that requirement [Footnote: Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 at 553 [10] per Gummow, Hayne, Heydon and Kiefel JJ ]. The requirement is not a judicially generated imposition. It derives from historically based assumptions about courts which were extant at the time of Federation."

This form of argument is potentially a powerful weapon against those who would support the idea that a sovereign legislature may enact any law it wishes. I have a written a brief note on this sort of thing in "Criminal Equity" [2000] New Zealand Law Journal 427. By "criminal equity" I mean the pursuit of fairness in the criminal context by looking beyond the black-letter law. Since then, we have enacted a potential cause of unfairness in s 21 of the Evidence Act 2006[NZ] which is absolute in its terms. It is wide enough to prevent admission of the exculpatory parts of a defendant's statement to the police unless he gives evidence at his trial. In cases where this would operate unfairly, the court has to, in effect, disregard s 21, but, since the court does not have the power to rule the legislation unconstitutional, this is done under the guise of recognising an implicit power to require the prosecution to lead the exculpatory statement to prevent unfairness. In a case that seems to be currently subject to a suppression order, [2009] NZCA 607, (2009) 24 CRNZ 527, the Court of Appeal has said, at [19]:

" ... such a power must be implicit in s 25 of the New Zealand Bill of Rights Act 1990. In the event of an unfair decision by a prosecutor not to lead evidence as to what an appellant said at a police interview, it would thus be open to the Court to require that evidence to be led. As to this, see Illingworth and Mathias “The Admissibility of Hearsay Statements and Opinion Evidence” in Young and Chambers Evidence Act 2006 (NZLS Intensive June 2007) at 50 – 51."

Essentially this is using the inherent power to prevent an abuse of process to qualify the statutory language in the interests of trial fairness. The jurisdiction to prevent an abuse of process is inherent in the function of the court.

Fair multiplicity

A routine point of criminal law was the reason for the unopposed allowing of the appeal in Mason v R [2010] NZSC 129 (3 November 2010): s 329(6) of the Crimes Act 1961 provides that "Every count shall in general apply only to a single transaction." Here, the transaction covered two assaults, and these should have been charged separately to avoid unfairness: the accused may have had a defence to one assault, and on sentencing it would be necessary to know what had been proved beyond reasonable doubt especially because the assaults varied in seriousness.

The conviction was quashed and the Crown did not seek a retrial.

This rather elementary point had been overlooked in the Court of Appeal, where the appellant had represented himself and the Court had misunderstood his argument as applying only to the determination of facts for sentencing.

Mr Mason will no doubt be pleased he did not have to go to the trouble and expense of trying to appeal to the Privy Council. This was a minor case, alleging punching in the face and ear-pulling, committed against one of the accused's sons. It was only interesting because of the huge attention that the use of force in domestic discipline has recently received, and this was regarded as a test case for new legislation, s 59 Crimes Act 1961.

There are occasions where a count can allege offending over an extended period, and there may be many alleged incidents which a complainant cannot be specific about. In those cases (often, but not necessarily, alleging sexual misconduct) the jury must, before it can find guilt, agree on at least one incidence of the alleged offence.

A leading authority is R v Accused (CA160/92) [1993] 1 NZLR 385; (1992) 10 CRNZ 152 (CA), where the judgment of the Court of Appeal was delivered by Cooke P (later, Lord Cooke of Thorndon). On the requirement of trial fairness, his Honour said

"The basic ingredients of a fair trial remain. There are limits to custodial interrogation and in some circumstances Bill of Rights protections; the accused is entitled to know the substance of that with which he is charged; he has statutory and common law rights regarding the disclosure of certain information; he has detailed notice before the trial of the evidence to be called by the prosecution; he has the right at the trial of cross-examining the Crown witnesses, subject to some reasonable restraints; he has the right to give evidence himself, so that the jury may compare his evidence with that of the complainant or his other accusers; and he has the benefit of the doubt, invariably underlined by trial Judges in emphatic directions that the prosecution must establish its case beyond reasonable doubt. In the event of a conviction the accused has the right of appeal on grounds including the basic one, miscarriage of justice. There is the safety net for exceptional cases of the Royal prerogative and s 406 Crimes Act: see Burt v Governor-General unreported, 16 July 1992, CA175/88.

"On the general question of the fairness of criminal trials in New Zealand it is not to be overlooked that other developments, some of them with no particular bearing on sexual charges, have also moved the balance towards the prosecution. These include statutory provisions for electronic surveillance; DNA testing; a more liberal judicial attitude to "similar fact" evidence and hearsay evidence. But they have been accompanied, at least since Police v Hall [1976] 2 NZLR 678  and R v Hartley [1978] 2 NZLR 199, with affirmation of the Court's inherent jurisdiction to prevent unfair trials; and that jurisdiction would be available if truly needed in a case in the present field.

"It is possible to imagine a case in which allegations of sexual misconduct are so vague or relate to a time so long ago, without justification for the delay, that it would be unfair to place an accused on trial upon them. Then the possibility of exercising the protective inherent jurisdiction would fall for consideration in all the circumstances of the particular case."

This comes down to the avoidance of vagueness and the avoidance of prejudicial or unconscionable delay. Logical difficulties may persist, as mentioned in the discussion of the use of specimen or sample counts in Tyack v. The State (Mauritius) [2006] UKPC 18 (29 March 2006) at 18-21. The problem is one of framing legislation that permits inclusion of more than one occurrence of an offence in one count, while still complying with the right to a fair trial. The New Zealand provision, s 329(6) above, is not absolute, but applies "in general" to a single "transaction". In Mason the Supreme Court said of this:

" [9] ... The qualification "in general" and the relatively indefinite word "transaction", which can encompass both a single event or a course of conduct, recognise the difficulty of application of any precise rule to the charging of the many different fact situations in which acts of offending may occur. They indicate the need for some flexibility. The essential requirement emerging from case law is that, if particular acts of alleged offending can sensibly be charged separately without undesirably lengthening the indictment (overcharging), then that should be done. It is necessary that distinctly identifiable acts of alleged offending be the subject of separate charges where the accused may be prejudiced either at trial or on sentencing if they are combined in a single count. On the one hand, the use of a multiplicity of counts is to be avoided where fewer would suffice for the interests of justice. On the other, overly complex counts may prejudice the defence or make it difficult to frame fair and accurate directions to the jury. If necessary trial Judges should intervene if either problem arises.

"[10] We repeat what Anderson J said for this Court in R v Qiu [[2007] NZSC 51, [2008] 1 NZLR 1 at [8] ].The Court endorsed the practice of not charging as separate offences a continuing course of conduct which it would be artificial to characterise as separate offences. But the Court said that it was another thing to charge as a single count repetitive acts which can be distinguished from each other in a meaningful way, even if they relate to more than one act of a certain class or character. The Court added something which the present case vividly illustrates:

'Separate counts facilitate fairness in the conduct of the trial by focusing attention on matters of fact and law which can and need to be distinguished for the purposes of different counts. In the event of conviction, they assist the sentencing Judge by indicating the extent of culpability.'"

Some delicate calculations may need to be made, as appears to have been the position in Mason, where experienced defence counsel had not sought severance of the count. Presumably this was because the chances of a successful defence to the lesser allegation were thought to be low, and that even if successful, splitting off the lesser allegation would merely highlight the more serious one and would prevent a sentencing submission that the facts should be assessed as less serious than they could have been. Fairness to the defence is not always easy for the defence to accept, as was seen earlier in these notes in relation to leaving alternative counts to the jury: "Fairer than you may want" .

Good character direction

An addition to our collection of cases illustrating when absence of a good character direction requires the quashing of a conviction: Campbell v R [2010] UKPC 26 (3 November 2010).

Here the omission of the direction was not the result of a tactical decision by the defence, and the case involved a contest between an eyewitness and the accused who gave evidence. In such cases the direction would be "of greatest potential significance" (para 45).

The Board also summarised the requirements for an eyewitness identification direction (para 28), and began with an extended discussion of when the Board can grant special leave to appeal to it where the lower court has refused leave (para 5-25).

W(h)ither Weiss?

Usually only one side in a criminal case appeals, but in R v Nguyen [2010] HCA 38 (3 November 2010) the Crown appealed against the Court of Appeal of the Supreme Court of Victoria's quashing of convictions for murder and attempted murder and its entry of acquittals, and the accused (DQN) appealed on the basis of an alleged misdirection by the trial judge by way of failure to leave to the jury the alternative of manslaughter on each count. DQN's appeal point had been raised in the Court of Appeal but was not addressed in its judgment.

The High Court therefore had to consider, on the Crown's appeal, whether the Court of Appeal had been correct in holding that the verdicts had been unreasonable, and on DQN's appeal, whether there had been an error of law.

Both these appeals had to be decided: it would have been insufficient to simply dismiss the Crown's appeal because there had been a substantial miscarriage of justice, because that would leave standing the Court of Appeal's entry of acquittal.

In the result, the Crown was entitled to a retrial because the verdicts were not unreasonable and the Court of Appeal should not have allowed DQN's appeal on that ground. There had to be a retrial because DQN's appeal also had to be allowed: there had been a substantial miscarriage of justice at trial.

Do these two grounds of appeal – reasonableness of verdict, and error of law giving rise to a miscarriage of justice – require different approaches by the appellate court? Both are subject to the proviso that the appeal may be dismissed if no substantial miscarriage of justice had actually occurred.

What is interesting about the High Court's judgment is its absence of reference to Weiss v R (2005) 224 CLR 300. Weiss requires the appellate court, upon finding that there was an error at trial giving rise to a miscarriage of justice, to determine whether the miscarriage was "substantial" by examining the whole of the record to assess whether the prosecution case was proved beyond reasonable doubt. Should you wish, you may locate my earlier comments on this by searching this site on the word Weiss.

In Nguyen the Court applied M v R [1994] HCA 63, (1994)181 CLR 487. This involves asking "was it open to the jury" to convict? It differs from the Weiss question, "is the appellate court satisfied of guilt"?

Plainly, the High Court could not apply Weiss because that would involve saying that it was satisfied of guilt, and also that there had been a substantial miscarriage of justice arising from failure to leave the jury with the alternative of manslaughter. The implications of this appeal highlight how inappropriate the Weiss approach can be.

Classic probability conundrums

There are many examples online of probability conundrums. I have mentioned some in my draft paper on propensity evidence, linked on this page. I mention two of them here.

The first problem is, if you are told that a stranger to you has two children, at least one of whom is a boy, what is the probability that the other is also a boy?

Note that neither child has been singled out, so this is a problem about the probability of having two boys. Given that one child will have been born before the other (even if a twin), the two children can have arrived as BB, BG, GB. The other combination, GG does not count in this example. So, one out of three eligible combinations gives two boys, and the probability of that occurring is 0.33.

If one child had been singled out, the problem would have been about the gender of one child (the other one). You might have been able to see one child, and were asked about the other. For one child, the probability of it being a boy is 0.50.

This problem illustrates how important it is to ascertain exactly what the issue is. The seemingly endless argument about this problem in the discussion to the above NY Times article exemplifies this.

Some people wonder why the combinations BG and GB are counted separately. They would say that the relevant combinations are just two: BB and (B and G). The error here is in thinking (B and G) will occur just as frequently as BB. This overlooks the way in which the data can arise. (B and G) will occur in two ways (namely, BG and GB) whereas BB will occur in only one way.

So the two lessons from this problem are: ascertain the issue, and examine how the data arises.

The other problem is known most commonly as the Monty Hall problem, after a game show host. The task is to pick which of three doors, A, B and C, will when opened reveal a prize. You pick one door, say A. The host, who knows where the prize is, then tells you it is not behind door C. Should you change your guess to door B?

When you choose door A, you divide the doors into two groups or classes: the chosen and the not-chosen. The probability of the prize being behind door A is 0.33. The probability of it being in the not-chosen class is 0.67. Once the host eliminates one member of the not-chosen class, the class probability for that class attaches to the only remaining member, door B. You should change your guess.

Some people object that each door always has the same probability of concealing the prize, and that there is no reason to change your guess from A. This ignores the new information the host gives you. Changing the probability distribution among members of one class does not affect the probability distribution among member(s) of another class. The constant probabilities are wrongly linked to the individual doors, rather than to the classes.

The lessons from this example are: use all the relevant information, and recognize when the issue is about members of one class as distinct from members of another class.

Another look at the right to legal advice

The relationship between the right to legal advice and the right to a fair hearing, discussed here in commentary on R v Sinclair, 15 October 2010, was again a central theme in yesterday's United Kingdom Supreme Court decision, Cadder v HM Advocate [2010] UKSC 43. In this case the law of Scotland was brought into line with the law in other jurisdictions that apply the European Convention on Human Rights.

I suggested that Sinclair will have to be applied in a way that preserves the defendant's absolute right to a fair hearing. This too is a requirement of Cadder. All members of the Court agreed with the two leading judgments (although technically Lord Mance agreed with Lord Hope but through him also agreed with Lord Rodger). Lord Rodger put the relationship between the non-absolute right to legal assistance and the absolute right to a fair trial this way (95):

"First, as the European Court recognises, [in Salduz v Turkey] 49 EHRR 421, 437, para 55, since the right to legal assistance at the stage when a suspect is to be questioned is an implied right, it is not absolute and must be subject to exceptions when, in the particular circumstances, there are compelling reasons to restrict it. It is not suggested that there would have been any such reasons in this case. But the circumstances in which section 15 of the 1995 Act envisages delaying intimation to a solicitor (the interest of the investigation or the prevention of crime or the apprehension of offenders) could perhaps constitute compelling reasons to restrict the right of access in an appropriate case. It has to be remembered, however, that even a justified restriction may deprive an accused of a fair hearing and so lead to a violation of article 6: 49 EHRR 421, 436, para 52."

Key concepts are the "compelling reasons" needed before the right to legal assistance can be restricted, and the nature of the "fair hearing". Neither of those called for detailed consideration in Cadder.

I doubt that in practice the correct application of Sinclair will produce different outcomes in Canadian courts from those in Scottish courts under Cadder.

Lord Rodger at 100-103 also dealt with the argument that changing the law of Scotland now would create a need to revise all the decisions that had applied the earlier law, by applying dicta in A v The Governor of Arbour Hill Prison [2006] 4 IR 88, per Murray CJ at paras 36-38.

Lord Hope referred to Gafgen v Germany (a case discussed here on 3 July 2008, 3 December 2008, and 25 June 2010, and also in Part 3 of the overview of these notes posted on 14 January 2010). He held at 48 that Gafgen turned on it's facts and was not a limitation of Salduz.

With there now being less wriggle-room concerning rights compliance, attention will focus on whether waiver of the right to legal advice had been constituted by the defendant's continuing cooperation with police questioning.

Provoking nostalgia

I recall that some of the better law students used to laugh at judges' efforts to elucidate the acts reus of attempts, especially impossible attempts, and also at their efforts to explain what provocation is. The latter has remained problematic, as can be seen from today's High Court of Australia decision in Pollock v R [2010] HCA 35. The case illustrates how even Bench Book directions derived from appellate judgments can be held by a higher court to be wrong.

In New Zealand we have repealed the statutory defence of provocation, as it is no longer thought to be necessary since the penalty for murder can in exceptional cases be less than life imprisonment. I am sure that, once the question of provocation is explored in sentencing hearings, the old difficulties will be revived.

Now that the questions concerning liability for impossible attempts have been solved, and provocation has diminished in importance, law students will be starved for intellectual stimulation in criminal law. Is there really anything worth puzzling over as far as the ingredients of offences and defences are concerned? Surely the focus of interest has shifted to admissibility issues, especially those involving rights.

So there is some nostalgia in reading Pollock - those old familiar authorities, those old familiar errors.

The right to legal advice

The requirement that a confession must be voluntary has several components. One is the right to silence, and waiver of this right must be informed and freely exercised (another requirement of voluntariness). The need for "informed" waiver of the right to silence is the reason that a caution has to be administered before a suspect is interviewed. The caution also contains information about the right to legal advice. This right to legal advice protects the "informed waiver" component of the right to silence, but it also extends to protect the ongoing requirement of voluntariness that continues throughout an interview. It should ensure that the suspect knows that he can exercise the right to silence at any time during questioning. The suspect is entitled to advice which will inform him of the significance of the questioning that will occur: its importance for potential proof of criminal liability. That means that the legal adviser needs to know what offences might be charged and the way in which liability for them might arise from the suspect's answers if he is to be questioned.

When one asks what the right to legal advice entails, this context of the right in relation to voluntariness of a potential confession needs to be remembered. Does this context make the operation of the right to legal advice in any particular case a matter for balancing against other interests, such as the public interest in the bringing of offenders to justice? Or is the right to legal advice an absolute right because of its being a component of the voluntariness of a confession?

This latter position, absoluteness, was taken by LeBel, Fish and Abella JJ in R v Sinclair [2010] SCC 35 (8 October 2010) and again in a companion case decided the same day, R v McCrimmon [2010] SCC 36. They said that what needs to be justified is a limitation on the right to legal advice, not the exercise of the right (McCrimmon at 39). Their concern with the power imbalance inherent in a police interview led them to repeat the dissent they had issued in Sinclair.

I should say, parenthetically, that it was illegal for those judges to repeat the dissent: since the matter was decided by the majority in Sinclair, they were obliged to follow the law and apply Sinclair. They could have still in McCrimmon reached the same conclusion as they did, by turning attention to the requirement of voluntariness. Unfortunately, the splitting of issues on appeal has led to the right to legal advice being considered in detail but without its important context of voluntariness. There was necessarily some mention of voluntariness, but this was more by way of aside (see, for example, the majority in Sinclair at 62).

The majority in Sinclair (McLachiln CJ and Charron J, with Deschamps, Rothstein and Cromwell JJ concurring) held that the right to legal advice involves an initial informing and a reasonable opportunity to exercise the right. It does not include a right to have counsel present throughout the interview. There may, during the course of an interview, be a need for a further opportunity for legal advice, but this arises only where it objectively appears that the initial advice could have been inadequate or where a new issue makes an opportunity for advice appropriate. It is not enough that the suspect merely wishes to interrupt an interview, as the suspect can exercise the right to silence. Fundamental to the majority's approach is the view that ascertaining the contours of the right to silence requires consideration of societal interests in the investigation and solving of crimes (Sinclair at 58, 63).

One would have to think very carefully before venturing to disagree with Charron J on a point of the law of evidence. Whether or not one agrees with the majority reasoning should depend on whether one accepts that qualifying the right to silence, by qualifying the right to legal advice, risks jeopardising the absolute quality of the requirement that a confession is made voluntarily. The majority's reasoning seems to be that qualifying those subsidiary rights may be acceptable as long as the voluntariness of any confession remains absolute. That would be analogous to reasoning that has been used in relation to rights associated with the accused's absolute right to a fair trial (see, for example, R(Ullah) v Special Adjudicator noted here, and with reference to judicial difficulties, 3 September 2004).

The Sinclair majority's reasoning is anchored to an appreciation of the "broad sense" of voluntariness required for confessions (Sinclair at 62), but unfortunately these cases have no detailed discussion of voluntariness. The majority makes great claims for the role of the voluntariness requirement (Sinclair at 64: "If anything, our reasons broaden the protection available to suspects, and narrow the ambit of police questioning"), and there will be many who read that sceptically. A consequence of finding no breach of the right to legal advice if there was no impact on the voluntariness of a confession is that there would be no need for the balancing exercise to determine the admissibility of the confession (in Canada, the Grant balancing) in such cases. Of course, if there was an impact on voluntariness, exclusion would be automatic. But cases of lesser police impropriety would be immune from judicial criticism in the form of exclusion. A very "broad" sense of voluntariness would be needed to address those.

Also decided the same day was R v Willier [2010] SCC 37, in which the Court unanimously held that on the facts there was no breach of the right to legal advice. Each of the approaches, so different in philosophy, can still lead to agreement on particular facts.

There is a brief but interesting discussion of the relevance of foreign law (here Miranda) to the question of the meaning of the right to legal advice, in Sinclair at 38-42.

See also my discussion of R v Singh, 2 November 2007. And for the position in Europe, see Salduz v Turkey [2008] ECHR 1542 at para 50-55.

Interpreting positive drug tests in cyclists

I am not a great follower of the sport of cycling. Apparently it is bad for the health of male genitals, and I can see why. But recently a successful cyclist, Alberto Contador, has tested positive for a minute trace of a substance that is banned. His explanation is that it must have been in meat he innocently ate. Farmers do use that drug to improve the muscle mass of their cattle. It seems to be thought that the controversy will be resolved by a second test of Mr Contador's body fluid samples.

 Nonsense. The occurrence of the drug in people who eat meat from the same source as Mr Contador's meal must be examined. The probability of getting Mr Contador's test result, on the assumption that he is guilty of deliberately taking the drug, must be compared with the probability of getting his test result on the assumption that he is innocent. This latter is the proportion of people who have a similar test result who got that result innocently from eating.

Scientific reasoning is comparable to legal reasoning. In science the method of investigation involves attempting to disprove a null hypothesis. For example, if the null hypothesis was “this drug test result could not have been caused by food”, scientific inquiry would involve looking for an instance where the relevant sort of food consumption caused the same test result. Falsification of the null hypothesis was the criterion for scientific advance recognised in the scientific community and famously described by Karl Popper.

In legal reasoning applicable to criminal trials, the prosecution’s hypothesis is the null hypothesis (“this drug test result could not have been caused by food”). But it is not for the defence to disprove the null hypothesis. Of course, the defence could seek to do so, and would win if it did produce evidence that the null hypothesis was false. But generally it is for the prosecution to prove that there is nothing to falsify the null hypothesis. “Progress” in this legal context occurs where there can be no disproof of the null hypothesis, whereas in science progress is disproof of the null hypothesis. Obviously, whereas disproof of the null hypothesis occurs by a specific event, the prosecution’s task of showing there is no disproof of its hypothesis can only be a matter of likelihood.

A disadvantage of the scientific method is that disproof may be a long time coming, and this will slow down progress. Disproof has, in recent times, been complemented by another technique: asking what is the most likely hypothesis behind given observations. Given the drug test result, what is the most likely explanation? Law is similar: given the evidence, is the defendant’s guilt the most likely (to the necessary high standard) explanation? On this approach, conditional probabilities come into play. Hypotheses are compared as explanations for the observations or for the evidence. Bayes’ Theorem is a means of assessing the likelihood of an hypothesis as an explanation for an observed fact.

Mistakes in logic can be identified using Bayes’ Theorem, and it is not necessary for this that actual probabilities are known. A common error in logic is to say that the probability of A, given B, is the same as the probability of B, given A. Using the example of a (any) cyclist, the error would be in saying that the probability of this test result, given that the drug was taken deliberately, is the same as the probability that the drug was taken deliberately, given this test result. Another error of logic is to suppose that the likelihood of the cyclist having cheated can be derived directly from the likelihood of the drug having been in his food. This error is that of ignoring the other probabilities of the cyclist having cheated, taking into account all the relevant facts. A Bayesian approach avoids both these sorts of errors.

Ideas or decisions?

Much that is of interest to criminal lawyers in Dickson v R [2010] HCA 30 (22 September 2010) is not discussed in the judgment.

The appellant had been convicted of an offence against a statutory provision that was invalid by reason of its inconsistency with s 11.5 of the Criminal Code (C'th). The High Court ordered that the charge should be quashed, the conviction entered on it should be quashed, and the sentence should be set aside.

The questions that naturally arise from this did not require decision, but some digression might have been interesting:

• If Mr Dickson had been acquitted at trial, would that have been a valid acquittal?
  
• Was he in jeopardy of conviction?
  
• Can he, if now properly charged, plead previous conviction? Or previous acquittal (in view of the successful appeal)?
  
• Would new proceedings on the same matter be an abuse of process?
  

There are implications of the decision that could be, for Australians, utterly horrifying, as Associate Professor Jeremy Gans suggests.

This decision has what are coming to be hallmarks of the new style of the High Court, at least in criminal cases: one judgment, tightly reasoned, narrowly focused. It is as if the Court has undertaken a physicist-like quest for a unified theory of everything (in the sense of one voice on every issue). Lady Hale would not approve (update: she elaborates here), and I agree with her.

There is nothing wrong with bringing the methods of science to law, but some sciences recognise the value of diversity. The current style does nothing to promote a growth in ideas.

For discussion of "null and void" at this site, see entries for 20 February 2006, 28 July 2006, and 13 May 2008.

The best of the best

Tom Bingham's brilliant article in the London Review of Books (26 March 2009) made many of us think he was just beginning a retirement career as a masterful commentator. His death on 11.9.10 came, therefore, as a surprise as well as an occasion for sober reflection: see the tribute by Alex Bailin QC at UKSC blog.

For me, Lord Bingham's most important contribution was to settle a debate about the status of an accused person's right to a fair hearing. While some judges were prepared to see this as a right that could be qualified by being balanced against the rights of the prosecution and of victims, in Randall v R (Cayman Islands) [2002] UKPC 19 at para 28 Lord Bingham, for the Board, established the absolutist position:

"…the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial."

And in the House of Lords the same point was made (by Lord Bingham for the Appellate Committee) in R v H [2004] UKHL 3 (5 February 2004) at para 10. This required some delicate manoeuvring around dicta that appeared to support a balancing approach to this right (para 12, citing Lord Steyn in Attorney-General's Reference (No 3 of 1999) [2001] 2 AC 91, 118). Even so, the issue was not secure: four months after H, Lord Bingham agreed with Lord Steyn in R v Special Adjudicator, ex parte Ullah [2004] UKHL 26 (17 June 2004) who at para 44 called the right a "qualified" right (that is, subject to derogation – a point that is rarely relevant), requiring consideration of a "triangulation of interests" (the accused, the victim, the public) where "compromises" might be required, although the requirement of a fair trial is "a universal norm".

But Lord Steyn had delivered the Board's judgment in Mohammed v The State (Trinidad and Tobago) [1998] UKPC 49 (9 December 1998), saying at para 29 "a breach of a defendant's constitutional right to a fair trial must inevitably result in the conviction being quashed." Is there a problem? Was Lord Steyn suggesting a model of fairness where whatever "fair" means, it is absolute, but its meaning is determined by triangulation? That possibility is excluded by H, triangulation is confined to other rights and its results are subject to the test of fairness (see para 36, step 6). Were it to be otherwise, "absolute" would mean nothing. To borrow Larkin's apposite phrase, "one side will have to go".
 
The accepted position is summarised in [2005] New Zealand Law Review 217 at 249 (footnotes omitted):

"The question is not how unfair is the accused’s trial required to be because of proper restrictions on cross-examination, but rather, what restrictions on cross-examination are compatible with the accused’s absolute right to a fair trial? Again, the question is not to what extent may reasonable breaches in identification procedures limit the accused’s right to a fair trial, but rather, what failings in identification procedure are compatible with the accused’s absolute right to a fair trial? The question is not to what extent may disparities in the opportunity of expert witnesses to examine the relevant evidence limit the accused’s right to a fair trial,  but rather, what disparities are compatible with the accused’s absolute right to a fair trial? The question is not, to what extent may pre-trial publicity limit the accused’s right to a fair trial,  but rather, what level of publicity is compatible with the accused’s absolute right to a fair trial? The question is not, to what extent may breaches in the rights relating to police questioning be allowed to limit the accused’s right to a fair trial, but rather, what departures are consistent with both the accused’s right to a fair trial and wider issues of prevention of abuse of process?"

It is now generally recognised that the accused's right to a fair trial is an absolute right: R v Howse (New Zealand) [2005] UKPC 31, para 36; Condon v R [2006] NZSC 62 (23 August 2006) at para 77, 78.

Eight days before Condon was decided, no less a legal scholar than Grant Hammond (who has achieved praise in these blogs) delivered a lecture in which he said (p 20) "The question whether it is possible to have an unfair trial but a safe conviction is maddeningly simple. But there is no clear answer" and he favoured a broad approach whereby if a conviction appeared safe on the evidence at trial, the accused's appeal should only be allowed on unfairness grounds if a balancing of rights supported that conclusion. What was clear to Lord Bingham might only slowly become apparent to others.

In New Zealand we have particular reason to remember Lord Bingham as the judge who delivered the devastating rejection of the Court of Appeal's analysis of the case against David Bain: Bain v R (New Zealand) [2009] UKPC 4 (16 March 2009). Applying the correct approach to the proviso, the Board ordered a new trial. Mr Bain (as all New Zealanders know) was subsequently acquitted of the murders of his parents and three siblings. The New Zealand courts have now changed their approach to the proviso, although the Privy Council insists that the result in Bain would have been the same: Barlow v R (New Zealand) [2009] UKPC 30, para 21.

Admissiblity issue or defence?

There is a difference between a procedural error in steps taken by an enforcement officer which provides a defence to a charge, and an error which results in evidence being improperly obtained: Birchler v Police [2010] NZSC 109 (30 August 2010). An officer had wrongly decided that a breath test could not be carried out at the roadside, and required the suspect to accompany her to the police station for the testing procedures. The accompanying was not voluntary (8). The District Court Judge dismissed the charge, instead of ruling that the improperly obtained evidence was admissible pursuant to the balancing exercise set out in s 30 of the Evidence Act 2006.

In the absence of reasonable compliance with the procedures the defendant had a defence (17). It would have been wrong for the Judge to have proceeded to the balancing exercise, because to do so was "quite inconsistent" with the statutory procedural scheme. The High Court, on an appeal on a question of law, held that the District Court could have undertaken the balancing exercise instead of dismissing the charge. The Supreme Court overruled that and set aside the High Court's order which remitted the case to the District Court for reconsideration.

The Supreme Court took the opportunity to correct a troublesome dictum in R v Gallichan [2009] NZCA 79 at 18, in which the Court of Appeal had indicated that failure to challenge the admissibility of evidence before the close of the prosecution case prevented the issue being raised. That was wrong (Birchler at 21).

Saved by sunken dreams

In Attorney-General v Tamil X [2010] NZSC 107 the New Zealand Supreme Court applied JS (Sri Lanka) v SSHD [2010] UKSC 15 (discussed here 16 April 2010). The case concerns whether X was disqualified from obtaining refugee status. Two grounds for disqualification were advanced: his participation in a crime against humanity, and his commission of a serious non-political offence.

Here, the sinking of a ship which carried weapons meant that no crime against humanity was committed as a result of any support that X may have given, as Chief Engineer onboard, to the Tamil Tigers during the vessel's last voyage bound for Sri Lanka. The Crown had acknowledged that no attempt was committed on the particular facts, which included findings that X was a loyal supporter of the Tamil Tigers, and he knew that he was helping to smuggle arms to Sri Lanka.

The Supreme Court held that all the necessary elements for X's personal responsibility for participating in a joint criminal enterprise to commit crimes against humanity were established on the facts (71), except that there was no proof of criminal acts of the Tamil Tigers in which it could be said that X was complicit, as the sinking of the ship resulted in no use of the weapons (72, 73, 75, 78). The point of joint enterprise liability is to make liable those who assist or contribute to crimes that are actually committed (79).

Another issue was whether X had committed, by other conduct, a "serious non-political crime". He had been convicted in India of being a party to the intentional destruction of a vessel carrying explosives in circumstances where danger to lives was likely (83). If this was accepted by the New Zealand authorities, that would establish X had committed a "serious crime", but was it "non-political"? That term is not defined (87). It is a question of the context, methods, motivation and proportionality of the crime to the offender's political motives (90), bearing in mind that (although it is not the norm in New Zealand) violence may be an incident of political action in many other countries (91, applying Kirby J's dictum in Minister for Immigration and Mulitcultural Affairs v Singh [2002] HCA 7 at para 106).

Here, X's conduct was political: there was not the "indiscriminate violence against civilians which would make the link between the criminal conduct and any overall political purpose too remote." (95)

There was thus no evidence of non-political crimes that would have disqualified X from obtaining refugee status. Nor was there evidence that he should be disqualified by reason of participation in a crime against humanity.

It seems that the Crown's concession that there was no attempt to commit a crime against humanity on these facts was important to the outcome. It was properly made, in view of decisions in domestic law about the difference between preparation to commit an offence and attempting to commit it. The distinction is sometimes difficult to draw, and can be controversial. The failure of a bomb to detonate would not save participants from liability for the attempt. But being interrupted in the process of assembling the ingredients for the bomb might. Generalisations are dangerous.

Doing the right thing

And now, on the actual date of the sixth anniversary of this site, here – as my 400^th posting - is a note on Petryszick v R [2010] NZSC 105 (24 August 2010).

The only grounds on which the Court of Appeal may dismiss an appeal against conviction are set out in s 385(1) Crimes Act 1961, and the substantive right to appeal (s 383) is not restricted - in the absence of express or implied authority in primary legislation - by authority to make procedural rules (32). Nor could the inherent right of the Court to control its own procedure be invoked to undermine the general standard of process required by s 25(h) New Zealand Bill of Rights Act 1990.

There will therefore be occasions when the Court must address grounds for appeal specified in preliminary documents without the assistance of a fully prepared argument for the appellant. Here the appellant had been in custody and correspondence from the court had been wrongly addressed, there were delays in approving a grant of full legal aid for his appeal, official correspondence did not refer to points he had raised, there were delays in giving the appellant information he needed to prepare his appeal. The Court of Appeal had dismissed the appeal without considering all the matters that had been raised.

The humorous side of this case is in the reaction of the Court of Appeal to the sort of quotidian frustrations that ordinary people can encounter in their efforts to obtain the service to which they are entitled from the bureaucracy. Consigning such a case to the wastepaper basket of dismissed appeals is not the right thing to do.

Rules of procedure should assist access to courts. The present Supreme Court case is reminiscent of the spirit of its earlier decision in Zaoui v Attorney-General, noted here on 25 November 2004. The lesson delivered by the Privy Council in Taito v R (New Zealand) [2002] UKPC 15 needs to be remembered. People who look for reasons to institute a criminal cases review tribunal will take the Court of Appeal's approach to Petryszick as an example.

Time

This week is the sixth anniversary of the start of this site.

Other milestones? Forty years ago I was dux of the same secondary school that Lord Rutherford was dux of in 1889. I smile at the bathos. Perhaps in some other dimension Rutherford's loud laughter echoes down the corridors of the Cavendish when he sees the result of searching this site for the word "smug".

I came to law after a science degree which left me fearless of mathematics, statistics and probability. This leads to the next anniversary.

Thirty years ago I had, as a spin-off from my PhD thesis, an article published in the Criminal Law Review. The publishers sent me copies of that month's edition.

This contained a fascinating exchange between Sir Richard Eggleston and, in the letters part of the journal, Jonathan Cohen over the forensic use of probability reasoning.

Consequently, I became familiar with Bayes' Theorem. The book by Bernard Robertson and GA Vignaux, "Interpreting Evidence" (1995) should make this subject accessible for most lawyers. So may my draft paper on the logic of propensity evidence [click here].

Bernard, incidentally, is mentioned on the innocent project page of Victoria University in Wellington. And, to complete a circle within a circle, Graham Zellick – mentioned in the edition of the Criminal Law Journal referred to above, is here in New Zealand now in connection with Victoria University's Innocence Project. Gasp.

So there we have it: milestones, coincidence, criss-crossing lives, earnest endeavours, and time always passing.

Bringing science to law

For more on DNA, see the second part of the article mentioned last time: New Scientist, 18 August 2010.

It confirms that the likelihood ratio is the best way of presenting conditional probability evidence. This will be familiar to anyone who uses Bayes' Theorem.

The simplicity of this approach is so stark that it can be mistaken for complexity. It asks, how much more is the evidence consistent with guilt than with innocence?

Difficulties with DNA evidence arise when scientists try to assign probabilities to each of these consistencies.

In my own humble little way I have offered lawyers an easy introduction to Bayesian reasoning.

It is a paper that has long been in draft form, so I can revise and update it as developments occur.

Interpreting DNA test results

See New Scientist for an article called "Fallible DNA evidence can mean prison or freedom" by Linda Geddes, dated 11 August 2010.

Interpretation of DNA analysis can be subjective and it is vulnerable to suggestion, so that scientists should know nothing of the circumstances in which samples were obtained or about the prosecution theory of the case.

The article points out that a defendant could be wrongly convicted because an analyst says that samples matched, when in fact peer opinions may differ over that and indeed may favour the contrary conclusion.

I suppose some defendants might wrongly be acquitted if an analyst thought there was no match, when peers might think there was a match. Could that happen?

Dismissing judges for misconduct

I imagine that all experienced barristers are familiar with bad judicial behaviour. But how bad does it have to be before a judge can be removed from office?

In Madam Justice Levers, Hearing on the Report of (The Cayman Islands) [2010] UKPC 24 (29 July 2010) the criterion for removal from office was set out [50]:

"The public rightly expects the highest standard of behaviour from a judge, but the protection of judicial independence demands that a judge shall not be removed for misbehaviour unless the judge has fallen so far short of that standard of behaviour as to demonstrate that he or she is not fit to remain in office. The test is whether the confidence in the justice system of those appearing before the judge or the public in general, with knowledge of the material circumstances, will be undermined if the judge continues to sit – see Therrien v Canada (Minister for Justice) [2001] 2 SCR 3. If a judge, by a course of conduct, demonstrates an inability to behave with due propriety misbehaviour can merge into incapacity."

An incident that of itself would have justified the judge's removal from office occurred during a sentencing hearing when the judge made disparaging comments about a complainant and people of her race. These comments [64]

"... showed bias, and indeed contempt, for Jamaicans which extended not merely to the defendant but to his victim, who happily was not in court. The comments about [her] ... were monstrous, suggesting that she should have been sent "home", describing her as "a woman like that" and accusing her of "spreading her goodwill around" – a clear allegation of promiscuity."

We all know that judicial behaviour tends to improve towards the appellate end of the hierarchy.

We are currently going through our own little trauma here, and it seems to be something that blew up out of a very minor error of judgement. Of course I would never read email messages that were not intended for my eyes, but if I did I would be fascinated by the glimpse they gave of the concerns of top ranking QCs. Private and professional lives, friendships and high legal principles, confidentiality and its limits, the individual and the integrity of the courts. The magnification of error by stress, the struggle for a proper perspective.

Reasonable, fair and not necessarily surprising

When is an unannounced forced entry into an occupied dwelling reasonable? In R v Cornell  [2010] SCC 31 the majority held there were sufficient circumstances to make such a search reasonable. These cases will usually be fact-specific, as here, and no new principles of law were established.

 The majority (McLachlin C.J. and Charron, Rothstein and Cromwell J, joint judgment delivered by Cromwell J) stated the general principles: 

"The only issue is whether the lawfully authorized search was conducted reasonably. Except in exigent circumstances, police officers must make an announcement before forcing entry into a dwelling house. Ordinarily, they should give: (1) notice of presence by knocking or ringing a door bell; (2) notice of authority, by identifying themselves as law enforcement officers; and (3) notice of purpose, by stating a lawful reason for entry. While the "knock and announce" principle is not absolute, where the police depart from it, there is an onus on them to explain why they thought it necessary to do so. If challenged, the Crown must lay an evidentiary framework to support the conclusion that the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants or about the destruction of evidence. The police must be allowed a certain amount of latitude in the manner in which they decide to enter premises and, in assessing that decision, the police must be judged by what was, or should reasonably have been, known to them at the time. On appellate review, the trial judge's assessment of the evidence and findings of fact must be accorded substantial deference."
 

In another fact-specific case decided the same day, the Court by the same majority (but here delivered by Charron J) held that the law may require a trial judge to put to the jury matters of law not covered by counsel (even by agreement between counsel), with the result that a basis for conviction which was not the subject of addresses to the jury by counsel may properly be considered and relied on in deliberation of the verdict: R v Pickton  [2010] SCC 32 This is really because the trial must be in accordance with the law, subject to fairness. Here the jury had been asked to acquit based on a factual doubt (as to his being a principal), but that doubt would not, on a wider view of routes to guilt (secondary liability), have exculpated him.

The position in Canada is that, even if the Crown has consistently advanced only one theory of guilt, its case is "a moving target": R v Rose, 1998 CanLII 768 (S.C.C.), [1998] 3 S.C.R. 262. The issue will be whether a change in stance gives rise to unfairness to the accused. It was significant here that "the defence theory itself put the participation of others at issue" (21, the majority's emphasis), and this meant that throughout the trial defence counsel were aware that secondary participation was in issue. The minority considered that the judge's instruction on secondary liability was inadequate.

Exculpatory statements ... and trials in the fullness of time

A brief note on two Privy Council decisions from last week:

Gordon v R (Belize) [2010] UKPC 18 (21 July 2010) is an interesting little reminder that there are times when the prosecution is, in the interests of fairness to the accused, obliged to lead evidence of his exculpatory statement, applying R v Sharp [1988] 1 WLR 7 and R v Aziz [1996] 1 AC 41.

The case also illustrates a misdirection on provocation.

In Maraj-Naraynsingh v Attorney-General of Trinidad and Tobago [2010] UKPC 19 (21 July 2010) we are given a glimpse of what seems to be a relaxed attitude to work in the tropics: the case highlights an absence in that jurisdiction of a constitutional right to a trial within a reasonable time; the right to be brought before a court "promptly" after arrest cannot be extended to include a right to be tried promptly after committal.

Res gestae lives again! And implied assertions are statements.

The majority in Rongonui v R [2010] NZSC 92 did not share the Chief Justice's view that "res gestae" is an outmoded term (see Hart v R [2010] NZSC 91 at 17, noted below).

In Rongonui, Blanchard, Tipping, McGrath and Wilson JJ held jointly that res gestae statements are not within the scope of s 35 Evidence Act 2006 (prior consistent statements) [46]. Terminology might be in doubt, as the judgment refers to "what used to be called" res gestae evidence [47], and at [46] the phrase "words spoken in the course of the events in issue" is used – but that could hardly have been intended to be a convenient substitute for the term "res gestae".

Res gestae statements therefore continue to be admissible in the same circumstances in which they were admissible at common law.

The joint judgment in Rongonui also tidied up what was becoming a needlessly contentious issue: a spurious exclusion of implied statements from the scope of "statements" (see the definition of "statement" in s 4 Evidence Act 2006), especially in relation to the statutory hearsay rule. A statement is an assertion, and an assertion may be express or implied [33]. The Crown in Rongonui could not argue that evidence that the complainant told someone "what had happened" was not an assertion that she had given the same account of events as she was giving in court. Those words carried the implication of consistency, and were accordingly an assertion of consistency, and in the circumstances of this case were an inadmissible prior consistent statement.

There is much overlap between Rongonui and the Court's other decision of today, Hart (see below), especially on the incorporation of what used to be called recent complaint evidence in sex cases into s 35 so that they no longer need to be "recent" in the common law sense, they are admissible as proof of the truth of their assertions, but they are only admissible when the conditions in s 35 are met. That is not a formidable obstacle, as usually the defence in such cases will be alleging recent invention.

It seems to me that if the defence specifies when it claims invention first occurred, consistent statements before that will have a relevance that is more likely to be obvious than consistent statements made after that date, although generalisation is dangerous and the circumstances of each case will need consideration in assessing the probative value of the challenged consistent statement. That there will be difficulties is signaled by the Chief Justice's dissent in Rongonui on the s 35 point.

Barlien got a drubbing today. It has up to now been cited by the Court of Appeal mainly for the point on which it was approved: that when the prior consistent statement is admissible it is admissible as proof of what it asserts. In two cases Barlien has been noted uncritically on other points now corrected by the Supreme Court: in Ringi v R [2008] NZCA 293 it was mentioned as showing the difficulties of s 35, and in a case which carried a suppression order so I only cite its number, CA529/2008, Barlien was mentioned as authority for the proposition that res gestae evidence is no longer admissible. Another aspect of Barlien - observations on potential difficulties concerning identification evidence - has been called into question by the Chief Justice in footnote 29 of Hart; the Court of Appeal cited Barlien uncritically on that point in CA108/2009.

All judges in Rongonui agreed that the trial had involved breaches of s 90(5) Evidence Act 2006, and the joint judgment, with which Elias CJ agreed, contains some comments on deciding when a record is capable of refreshing a witness's memory.

Prior consistent statements

Hart v R [2010] NZSC 91 (23 July 2010) addresses the law of the admissibility of prior consistent statements in the context of a claim of recent invention under s 35 Evidence Act 2006.

The Court was unanimous, and the reasoning in the two judgments is consistent. Blanchard, Tipping, McGrath and Wilson JJ jointly held that the essence of an admissible prior consistent statement is its tendency to respond to a challenge to the witness's veracity or accuracy based on a claim of recent invention [50]. An "invention" is a deliberately misleading statement [51]. It is not always possible to identify exactly when a motive to fabricate arose [52, and Elias CJ at 20]. Therefore it is not necessary that the prior consistent statement was made before the occasion or motive for the claimed invention [53, and Elias CJ at 20]. This is a departure from the position that had prevailed at common law.

The prior statement is admissible as proof of the truth of its assertion [54-57]. This too is a departure from the common law rule that prior statements were only admissible as proof of the witness's consistency.

Elias CJ held that prior statements admissible under s 35 can include what the common law called "recent complaint" allegations of sexual offending [14]. It is now not necessary that such complaints be "recent" in relation to the alleged incident, but their admission does need to be "necessary" to rebut the allegation of recent invention [15].

She also held that a recent invention in terms of s 35 is one that occurred after the events described [16].

Elias CJ disagreed with the Court of Appeal's judgment in R v Barlien [2008] NZCA 180 on several points (I have commented on this case on 8 July 2008): recent complaints are within s 35, and speech that is part of the events (formerly called res gestae – a term that is now to be avoided [17]) can also be admissible "in themselves" [17]. She also doubted that Barlien was correct to exclude from s 35 previous statements by identifying witnesses [footnote 29]. Nor did she consider the legislation would disrupt the course of evidence, as defence counsel would usually indicate the basis for a defence in opening remarks, or would agree that the Crown could lead evidence of the prior statement in examination in chief [19].

Barlien was therefore needlessly alarmist.

Of critical importance will be the necessity requirement: when is admission of evidence of the prior consistent statement "necessary" under s 35? [Elias CJ at 11, joint judgment at 51.] The joint judgment says that judicial experience with the common law will assist in judging the tendency of the statement to rebut the allegation of recent invention. Elias CJ refers to the requirements of relevance in s 7.

Much to rejoice about here, if clarity is what you want. I am a little uneasy about the joint judgment's apparent limitation of "recent invention" to statements that are deliberately misleading [51], because s 35 allows them to be admitted to respond to a challenge to the witnesses "accuracy", not just "veracity".

Collateral attack, witness immunity, and abuse of process

An orthodox application of Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL), prohibiting the use of civil proceedings to mount a collateral attack on a decision in a criminal case, is Hurnam v Bholah (Mauritius) [2010] UKPC 12 (12 July 2010).

Issues that have been decided to have reached the standard of beyond reasonable doubt cannot be taken to be capable of having a different outcome if they were to be decided on the balance of probabilities. The exception is where fresh evidence passes a "rigorous test" (per Lord Diplock in Hunter at 545).

In Hunter, the Birmingham Six case, the accused were held beyond reasonable doubt at voir dire not to have been subjected to violence before they made statements which were therefore admissible at trial, so subsequent civil proceedings by the accused against the officials for alleged assault were stayed as an abuse of process.

Ultimately the Birmingham Six were shown to have been wrongly convicted – even wrongly accused – and they received compensation.

An interesting aspect of Hurnam v Bholah is its reference (37-38) to French law on issue estoppel. In Mauritius the substantive law is based mainly on the French Napoleonic Code, whereas procedural law is mainly English. In English common law the position was that neither an acquittal nor a conviction was admissible on the same issue in civil proceedings: Hollington v F Hewthorn & Co Ltd [1943] KB 587. This was the applicable law in Mauritius. The position in the UK was changed by statute (s 11 Civil Evidence Act 1968) so that a conviction is prima facie evidence in civil proceedings that the person did commit the offence. But French law permits the results of criminal cases, whether convictions or acquittals, to be used in evidence in civil cases. However this has been held not to be part of the procedural law of Mauritius.

There is an obvious irony in Hunter being authority for preventing civil proceedings being used to undermine a criminal conviction, as the convictions there were unsound. But the point is that a conviction is a matter of criminal law and it can only be challenged on appeal or on prerogative review.

In the present case the Board held (31) that Mr Hurnam was seeking to use civil proceedings, not to obtain damages, but to restore his reputation by calling into question the guilty verdict in the criminal proceedings. He had been found guilty of conspiring to fabricate an alibi, and his civil proceedings claimed that the allegation that he had conspired to fabricate the alibi was false.

Lord Brown agreed with the judgment of the Board delivered by Lord Rodger, and added that witness immunity protected the witness whose evidence supported the allegation of conspiracy to fabricate the alibi from subsequent suit (Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435), the policy being that witnesses should not, for fear of being sued for something they say, be afraid to tell the truth (citing Lord Hoffman in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, 208). There was no issue of witness immunity in Hunter and Lord Brown considered that Hunter was a weaker case for striking out than was the present case.

Stubborn beliefs and the elusive truth

On how we let our beliefs get in the way of the facts, and on how contrary facts merely entrench our preconceived beliefs, see this article from the Boston Globe, 11 July 2010, "How facts backfire" by Joe Keohane. 

While that article is not concerned with forensic fact finding, it does have fundamental implications for trial procedure.

The article mentions research that indicates that persuasion requires an adjustment of the other person's (fact-finder's) belief about the issue, not by presenting facts that threaten the person by putting them in the position of being wrong, but by interactively presenting evidence that directly confronts preconceived beliefs. To lawyers this implies that jurors or fact-finding judges should be able to question witnesses directly. Another suggestion is that increasing the "reputational cost" of error could discourage people from adhering to false beliefs. This could be done by making jurors answerable for their decisions, for example by exposing them to media questioning after their verdicts.

Current practice could hardly be more different. Our trial procedure may discourage accurate fact finding.

It takes all sorts ...

I have previously noted Lord Rodger's dark humour. Unless he is one of those chaps who seems funnier the further away one gets from him, here he goes again:

" ... just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates. ...".

HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (7 July 2010), at para 78. I suspect he was assisted in writing that passage by what Lady Hale has called "the extremely bright young Judicial Assistants in the Supreme Court": opening address in 'Ten years on': A Multi-perspective Evaluation of the Human Rights Act – Salford Human Rights Conference 2010 (4-5 June 2010).

HJ isn't a criminal case, so I don't need to comment on it here.

I was surprised to hear, when she was interviewed on a radio programme during her recent visit to New Zealand, that Lady Hale sounds much different from what her somewhat tousled ra-ra-hockey-sticks appearance might suggest. She was incredibly patient with some rather mundane questions.

For discussion of HJ, see Aidan O'Neill QC, "Some Reflections on Religion, Sexuality and the Possible Transatlantic Implications of the HJ (Iran) v. Home Secretary [2010] UKSC 31" at UKSC blog 12 July 2010.

Free speech and foolishness

Once again our passionate little nation is in thrall to the Bain case (see my comments posted 8 June 2009). Last night a television documentary tried to persuade us that the acquitted David Bain should not receive compensation. At least that was its import; ostensibly it merely suggested that there was no case to be made against one of the five murdered victims, Robin Bain. At trial the defence had suggested that Robin was the killer.

There will always be differences of opinion over who was the murderer. People who were not at the trial and who did not hear all the witnesses and see all the evidence cannot possibly have worthwhile opinions on that issue. Even people who sat through the whole case disagree on its outcome. If people can't agree on whether there was a reasonable doubt, how can they agree on whether on the balance of probabilities the acquitted David Bain should receive compensation?

The case has almost left the law behind. It is now a form of entertainment, as is the expression of all ill-informed opinion. My own views are just as likely to be silly as those of anyone else who was not at the trial. I can argue either side, and in fact do, depending on who I wish to irritate. The tragedy has become a farce.

Multiple judgment cases: an illusory paradox

Sometimes multi-judgment cases challenge the analytical powers of readers. Especially when there is no headnote, and also when they seem to be of only marginal interest.

Thanks to David Cohen's interesting comments on McDonald v Chicago [2010] USSC No 08-1521 (28 June 2010) I can mention that state and local anti-gun laws might be unconstitutional. A headnote is provided for this case, but it is so complex that only students of US constitutional law would be motivated to study it.

What I do find interesting is Professor Cohen's point that this case is an example of a paradox. It seems (I rely on his analysis) that the reasons for holding the relevant law constitutional were accepted by more judges than those who found reasons to hold it unconstitutional, yet the outcome of the case was that the law was unconstitutional.

The "paradox" of there being an excess of judges supporting some of the reasons for what turns out to be the minority conclusion is illusory because the total judicial support for those reasons consists of dissenting judges who regard them as adequate, and majority judges who do not. The decision in the case is supported by reasons held to be adequate by the majority of judges. If any of the majority judges indicate support for reasons relied on by the minority, those judges are not thereby lending support to the dissenters' conclusion.

Was the relevant law in McDonald unconstitutional? Four justices held yes, because it infringed the due process part of the Fourteenth Amendment, and one justice held yes, because it infringed the privileges and immunities clause of that Amendment. So, five justices held the relevant law unconstitutional. That being the majority, that was the decision.

It is true, but irrelevant, that in some respects these majority justices recognised reasons that would have been insufficient to support their conclusion. Their partial agreement with reasons relied on by minority justices does not add to the tally of dissenting justices.

What matters for the result is how many justices found at least one reason to hold the relevant law unconstitutional. Five. The number of justices who found no reason to hold the law unconstitutional was four. It is a fallacy to say that a justice who finds only one reason to hold the law constitutional should vote constitutional.

The reasons for the decision of the Court are not the same as the reasons for the individual judgments. When asking what the case is authority for, one looks at the reasons for the decision of the Court: McDonald is (again, relying on Professor Cohen's summary) authority for the proposition that the due process requirements of the Fourteenth Amendment render unconstitutional the laws considered in that case.

Professor Cohen's "paradox" is not really a paradox. It is a mundane result of what is sufficient reason for a decision.

Now that you are in the mood for analysing multi-judge cases, have a look at R(Smith) v Secretary of State for Defence [2010] UKSC 29 (helpfully discussed by Alex Bailin QC and also by Aidan O'Neill QC). It deals with the extra-territorial effect of the European Convention on Human Rights, and American readers who see the big picture might compare it to Boumedeine v Bush, noted here 13 June 2008.