Probative value and prejudicial effect

In M v R [2008] NZSC 52 the Supreme Court refused leave to appeal in a case where the Court of Appeal ([2008] NZCA 112) had been split over whether the trial had been fair. The issue was whether there had been a substantial miscarriage of justice (an unfair trial), so this was not the occasion for an examination of one of the most intractable problems in the law of evidence.

That problem is how to decide whether the probative value of proposed evidence is outweighed by the prejudicial effect of ruling it admissible. In New Zealand the statutory formulation of this decision is in s 8 Evidence Act 2006. It has some common ground with the substantial miscarriage of justice issue, in that the fairness of the trial governs each decision.

The three Court of Appeal Judges in M delivered a joint decision which mentioned that a member of the Court, who it did not identify, disagreed with the other two on the fairness issue. The question was, what was the effect of the admission of inadmissible evidence: the accused had been charged with sexual offending and when he was questioned by the police he was asked whether he himself had been abused when he was young, and he said he didn’t know. Under cross-examination the officer who had interviewed the accused said he had asked that question as a way of leading to asking the accused how it might affect his own parenting. The officer denied he was suggesting that if the accused had been abused he would be more likely to be an abuser, and added that he understood that only around 20% of such people went on to become abusers.

The majority view is expressed in the judgment in this way:

“13 A majority of the Court are of the view that although the evidence should not have been led, it appeared to be the subject of cross-examination to use it rather than to overcome it. That is consistent with how the case was advanced with its focus on the complainant’s credibility. Reflecting the sustained attack on her when she gave evidence, the defence stance in closing was that this case involved a very unequal and unfair contrast between a young, intelligent, highly articulate and venal woman, at the height of her powers who had prepared carefully, and an elderly man, no longer in command of his mind or memory, who could only react. In their view there is no risk of miscarriage of justice arising from the admission of this evidence.

“14 The ‘statistic’ drawn out in cross-examination …, that a proportion of around 20 per cent of those who are abused then go on to commit abuse, is not a particularly significant statistic. Further, the appellant was acquitted on one count of indecent assault on a girl under 12. The complainant's recollection of the facts giving rise to that count (incidents of oral sex) was not clear but the differing verdicts suggest the jury had been able to discriminate (consistent with the Judge's directions on the burden and onus of proof) and was not simply applying propensity reasoning.”

This does not, of course, address the terms of s 8, but the relationship with the substantial miscarriage of justice question is apparent in that the evidence, being inadmissible, had no probative value, so the real question was whether there was an unacceptable risk of illegitimate prejudicial effect from its admission, bearing in mind the accused’s right to a fair trial, which is the same as the s 8 right to offer an effective defence viewed in the context of s 6(b) of the Evidence Act 2006 which requires recognition of the accused's rights that are affirmed in the Bill of Rights.

Was there an unacceptable risk that the jury would, as a result of hearing the inadmissible evidence, have given more weight to the complainant’s evidence than it should, or less weight to the defence case? Even if the majority correctly reasoned that the difference in verdicts was attributable to impartial judgment rather than simply to a failure of probative value on the part of the complainant’s evidence on one count, does it follow that the jury were impartial on counts where the complainant’s evidence was detailed?

The judgment reports the minority Judge in these terms:

“16 The third member of the Court is of a different opinion. That member considers that the jury may well have improperly viewed the disputed evidence as predisposing the appellant to act in the manner alleged by the Crown. Acquittal on one of eight counts is no evidence to the contrary. It is quite likely that cross- examination on the topic was out of necessity, by way of attempt to meet what had been admitted, rather than a desired part of the defence case. There is however an outside chance that defence counsel received instructions to allow the evidence to be admitted in support of a sympathy plea. There was a suggestion at the hearing that there may have been a waiver of privilege by the appellant but no evidence resulted. That is a matter which should be explored by an invitation to the appellant focused on the present point, to consider whether to waive privilege so that the Crown may obtain from trial counsel an affidavit as to his instructions. But in the absence of any such instructions the appellant’s absolute right to a fair trial has been infringed by evidence which was highly prejudicial and should never have been admitted.”

This amounts to recognition of a high risk of bias against the accused arising from the wrongful admission of the evidence.

Three Justices of the Supreme Court declined leave to appeal from the Court of Appeal’s dismissal of the accused’s appeal, saying at para 2:

“…The Court [of Appeal] was divided on whether the admission of the evidence resulted in an unfair trial. That is not a question of law or fact of public or general importance as it is entirely dependent upon the facts of the particular case. And, importantly, overall there does appear to have been a fair trial and there is no appearance of any miscarriage of justice.”
So we will have to wait for any assistance the Supreme Court may wish to give on how the risk of an unfair trial is to be identified and dealt with. The basic question in M v R was, when do imputations against an accused’s character amount to illegitimate prejudice? That is one of the hot topics in the law of evidence. There has been a recent Report on it from the New Zealand Law Commission: (NZLC R 103) “Disclosure to Court of Defendants’ Previous Convictions, Similar Offending and Bad Character” (May 2008). This details the complexity of the issues as perceived by those who have discussed them. The appropriate risk of unfairness is treated like this:

“1.22 …The determination of what is "appropriate" can raise a complex mix of considerations. Amongst these are society's interest in conviction of the guilty and acquittal of the innocent; and also matters of practicability within jury trial process, and of human abilities. In the end, and within such constraints, the question of acceptable degree of risk and fairness involves a value judgement.”

This seems to suggest that the accused’s right to a fair trial must be adjusted to accommodate society's interest in a true verdict, which contradicts the position mentioned later, para 8.15, to the effect that the accused’s right to a fair trial is primary:

“In the end, the Commission's view is that in a contest of values, the need for a fair trial should continue to have primacy. The admissibility of evidence for the prosecution can and should go up to the limit which that permits, but not beyond. Policies governing the admissibility of evidence in criminal cases, including within that evidence of previous convictions, past misconduct, and bad character, should be shaped accordingly.”

The Commission thinks predictability will remain elusive:

“7.59 The weighing exercise, like all value judgements, will never produce entirely uniform and predictable outcomes across all judges on all occasions. Views on a particular case may, at times, vary quite sharply, even at the highest levels…[footnote omitted] However, this is unavoidable: any precise formula that did not involve the exercise of judgment would produce undue rigidity and therefore injustice.”

Nevertheless, in my view the exercise of judgment is worthy of study. It is important that it should be predictable and not arbitrary. Judges should not simply state their conclusions; they should give reasons.

The accused’s right to a fair trial is fundamental and absolute, so judicial difficulties in upholding it must be of great concern.

I could go on; in fact I do, here.

Recent invention afterthoughts ...

I should add to my comments on R v Barlien, last blog (8 July 2008) a reference to the Court of Appeal’s decision of 6 June 2008 in R v S (CA592/07) [2008] NZCA 152. This has just come to my attention, and it is consistent with what I said about the meaning of “recent invention” when I considered R v Barlien.

In R v S the Court held that under s 35 of the Evidence Act 2006, recent invention means an invention made after the event spoken of, and invention includes something reconstructed without conscious dishonesty (para 16).

It seems that the Court was wrong in Barlien to conclude that the defence stance there did not amount to an allegation of recent invention (para 51). In Barlien which was decided on 24 June 2008, R v S was not cited. Both are decisions of the Divisional Court (meaning that a Permanent Member of the Court of Appeal sits with two Justices of the next lower court, the High Court), and one High Court Justice sat on both cases.

Prior consistent statements

In R v Barlien [2008] NZCA 180 (24 June 2008) the Court made some important criticisms of s 35 of the Evidence Act 2006. The Court ordered that these criticisms be brought to the attention of the Minister of Justice and the Law Commission.

The essence of the criticisms is that under s 35 a complainant’s prior consistent statement alleging the accused’s sexual misconduct cannot be admissible unless the defence claim that the complainant’s evidence is a “recent invention”. There are other circumstances where the prior consistent statement may be admissible, spelled out in s 35, but that is the one relevant to this case.

At common law there was no such need for a defence claim that the testimony was recently invented if the statement qualified for admission as a fresh or recent complaint. Perhaps – just speculation here – s 35 made this change intentionally as part of a delicate balancing of competing interests. The section does have the effect of making the prior statements, when admissible, proof of their truth (this was held in Barlien para 20); the common law had only allowed them as evidence of consistency.

In assessing the Court’s criticisms of s 35 one should bear in mind how counsel will usually approach the issue. In some cases, counsel for each side can sort out between them, before the trial, whether it is likely the Court will be asked to rule on the admissibility of a prior consistent statement. Disclosure of the complainant’s statements will have been made to the defence, and defence counsel will, in these rare cases, know whether he will be alleging that the complainant’s evidence – assuming the complainant comes up to brief – is a recent invention. That is, an invention made at some point where a motive for invention operated. It would be unusual for a case to be prepared for trial with a conflict between the complainant’s statements. More usually, a conflict will only emerge when the complainant gives evidence. The difference between what the complainant says in court and what the complainant previously told someone will give the previous statements its status as a prior inconsistent statement. But inconsistent statements are not the concern of s 35.

There is no statutory definition of “recent invention” but it is obvious that it means an allegation that what the complainant is saying in court is an invention that was made after the events with which it purports to be concerned. The “recency” refers to the time since those events. The invention in court could be a result of an intention to lie, or it could be an innocent mistake. Most cases, in which the defence either deny the occurrence of the events or dispute the allegation of absence of consent, will be cases where recent invention is alleged.

The Court's concerns in Barlien are of questionable merit.

Here is the Court’s postscript to its judgment in Barlien, setting out its concerns. I have inserted my comments in italics and square brackets:

Postscript

[64] This case has highlighted some issues with s 35 of the Evidence Act and the changes to the Law Commission draft code made at Select Committee stage. The changes were made because the Select Committee considered the original Law Commission section “unworkable and too broad”.

[65] Some might even argue that the Law Commission draft code was too restrictive in that it perpetuated what some might see as an illogical distinction between conduct and statements. This is particularly the case where words are inextricably intertwined with conduct …. In addition, it excluded potentially relevant evidence. This was on the basis that parties should not, without good reason, inundate the court with voluminous repetitive material. However, s 8(1)(b) already gives judges control over this. [Yes, but: in the absence of a defence allegation that the complainant made a prior inconsistent statement – told another story out of court – the jury is likely to think that the testimony they have heard is what the complainant said all along, and the evidence of the complainant’s conduct at the relevant time – when the complaint was made – will make this thought inevitable.]

[66] Further, the Law Commission draft code required a challenge to be made to veracity or accuracy before previous consistent statements became admissible. A jury is still, however, able to reject evidence that has not been challenged given that they are the fact finders – see R v Munro [2008] 2 NZLR 87 at [25] (CA) and R v E [2007] NZCA 404 at [134]. Limiting admissibility to evidence that has been challenged could deprive a jury of potentially relevant material upon which to base their decision. Further, limiting admissibility to cases where there has been a challenge to the evidence means that it can usually only be admitted after such a challenge. This might interrupt the orderly conduct of trials and could inconvenience witnesses who might have to remain on standby, uncertain if they would be called (or recalled). It may also mean that, where words were inextricably tied in with conduct, a disconnection between the evidence as to conduct and the words that accompanied them might arise. There is also the difficulty in assessing admissibility if a witness is yet to testify ….

[67] All of these problems remain, however, with s 35 as enacted and further problems have been introduced. We identify a number below but there may be others.

[68] While the Select Committee said that it was restricting admissibility to those situations where previous consistent statements would have been admissible under current law this is not the case – see above at [35]. The disinterested observer might well think it odd when evidence that would have been admissible under the more restrictive common law rules is no longer admissible under the more expansive Evidence Act provisions.

[69] There appears to have been a mistake in not including, in the exceptions to s 35(1), the res gestae exception – see above at [37] - [39]. [Not necessarily: s 12 may govern this situation.] In addition, the rules relating to recent complaints were not retained – see above at [36]. Such evidence has previously been regarded as being of probative value [Yes, only as going to credibility; now it goes to truth on those occasions when it is admissible]. While the omission of provision for recent complaint evidence may well have been deliberate (although unexplained), it does deprive juries of relevant information - see our comments at [47] - [49] above [Yes, but in the absence of a challenge from the defence the jury will assume that the complainant was always consistent. The Court’s point is that the complainant may forget some of the complaint, but why depart from the usual rules as to forgetful witnesses – s 90(5) ?]. It also deprives [again, might deprive, but the assumption of consistency makes it not very likely to do so] them of evidence which they appear to find helpful – see Dr S Blackwell Child Sexual Abuse on Trial (Thesis submitted for Doctor of Philosophy in Psychology, University of Auckland, 2007) at 216. There is also a possible difficulty with the admission of previous descriptions of the accused, in that s 22A of the Evidence Act 1908 was not brought forward into the new Act – see above at [33] [It is likely that an allegation that an eyewitness is mistaken will count as a claim of recent invention, so the prior consistent description will be admissible, and for its truth, not just as supporting present credibility].

[70] In addition, even more than under the Law Commission version, the admissibility or otherwise of relevant evidence in the form of previous consistent statements depends on how the accused decides to run his or her case. [Not much of a choice, in reality.] The Right Honourable Ted Thomas has recently commented that in his view this is unfair to victims of sexual offending – see “The Evidence Act 2006 and women” [2008] NZLJ 169 at 170. We note that, even if defence counsel does not raise the issue of recent invention, this does not prevent the jury from surmising as to why the complaint is delayed and perhaps considering the prospect of recent invention [Defence counsel cannot suggest that the complaint is a recent invention if it is known not to be; the usual defence position will be that all the complainant’s statements on the material point are inventions.]. Dr Blackwell’s thesis suggests that juries’ decision-making usually involves the “story construction” model whereby personal knowledge or experience about similar events is used, along with evidence at trial, to create a complete story of events – see Dr Blackwell’s thesis at 56 – 57. [See also: Bennett and Feldman, “Reconstructing Reality in the Courtroom” (1981) for the same point.]

[71] Section 35(2) also creates a dilemma for defence counsel. The Law Society seminar on the Evidence Act, pointed out that s 35 makes cross-examination based on previous inconsistent statement or recent invention a difficult and delicate exercise – see Hon Justice William Young and Hon Justice Chambers (Chairs) Evidence Act 2006 (NZLS Intensive June 2007) at 117. Inroads made on certain aspects of the evidence may be countered and indeed marginalised by re-examination on this and on the production of a prior consistent statement. Moreover, evidence given after a challenge may assume more importance than if elicited in the normal course of the evidence. Failure to cross-examine on those aspects could, however, be equally fatal to the defence. [I agree with the authors of the paper referred to where they say, at the same page, “Potentially s 35(2) could greatly widen the opportunity to produce prior written statements of a witness once the witness has been challenged in cross examination.”]

[72] Finally, there are issues with the interface of ss 35 and 45 in relation to identification evidence generally. In [one commentary], it is noted that the better view is that s 35 will apply even where the requirements of s 45 are met. The authors state that a witness will only be able to support the identification of the defendant by way of a previous consistent assertion identifying the defendant where there is a challenge to the witness’ accuracy or veracity (for example on the basis of poor eyesight). However, this comment must have been based on the old version of s 35 because the prior consistent identification would only be admissible under s 35(2) if the challenge was on the basis of a prior inconsistent statement or recent fabrication [No, the word is not “fabrication” – which suggests deliberate falsehood – but “invention” – which could occur by innocent reconstruction of events] (and poor eyesight would not come within those exceptions) [but it would be invention].

[73] The Registry should refer this judgment to the Ministry of Justice and the Law Commission, drawing their attention in particular to this postscript.

If "recent invention" has the wide meaning of an invention made after the alleged events, or really just an invention, then the focus will be on whether the prior consistent statement is necessary to rebut the defence suggestion of invention. It seems that such necessity will be easy to establish, and that s 35 will have a wide operation.

Update: For the Supreme Court's disapproval of much of Barlien, see Hart v R and Rongonui v R, both delivered on 23 July 2010 and discussed here and here.

A note on good character direction cases

Just a note on Maye v R (Jamaica) [2008] UKPC 35 (1 July 2008): the Board referred to recent decisions on the failure of the judge to give a good character direction:

“20. [Counsel for the Crown] quite properly reminds the Board of a series of recent cases such as Bhola v The State [2006] UKPC 9; (2006) 68 WLR 449, Gilbert v The Queen [2006] UKPC 15; [2006] 1 WLR 2108 and Simmons and Green v The Queen [2006] UKPC 19; (2006) 68 WLR 37, which make it plain that the lack of a proper good character direction will not avail the appellant where the court is satisfied that the jury would in any event have convicted. In all those cases, however, the evidence against the accused had been overwhelming.”

(See blog entries for 29 March 2006 and 4 April 2006.)

Here a conviction was not inevitable, and the combination of absence of a good character direction and the failure to call a relevant defence witness caused the Board to quash the appellant’s conviction and remit to the Court of Appeal the decision on whether to order a retrial.

Whether there should be a rule requiring a good character direction whenever the defence point to evidence of good character is a vexed question. In Melbourne v R [1999] HCA 32 (5 August 1999) the majority of the High Court held that a rule should not be applied but rather the matter should be one for the judge’s discretion. Hayne J at 155, after referring to the position in New Zealand and in England and Wales, concluded:

“…There is no point in insisting that a trial judge must give such a direction in every case (or nearly every case) in which good character is established unless to do so assists in achieving a fair trial. And that directs attention to what is in issue at trial.”

Gummow J at 68 referred to historical reasons for allowing evidence of good character, and at 79 preferred the discretionary approach taken by Thomas J (dissenting) in R v Falealili [1996] 3 NZLR 664 at 671-672, which focuses attention on whether the evidence is probative and relevant, as opposed to lacking in probative force and being of remote relevance to the charge in issue.

Kirby J concluded, dissenting, that a rule was the preferable approach, but also indicated (108) that more than mere mention in evidence of absence of previous convictions should be necessary to give rise to the requirement for a good character direction.

McHugh J had two reasons for declining to introduce into Australian law a rule requiring a good character direction (32):

“…First, the difference between the use of good character evidence and the use of bad character evidence in a criminal trial is logically anomalous and, while that difference is too deeply rooted in the law to be removed by judicial decision, it should not be widened. Second, in cases where good character evidence has no logical connection with the elements of the offence, a mandatory direction is likely to divert the jury from properly evaluating evidence which more directly and logically bears upon the guilt of the accused and … such a direction may even confuse the jury.”

In New Zealand the Evidence Act 2006 does not expressly require a direction on good character evidence, and s 11 preserves the “inherent and implied powers of a court” which are not affected by the Act. The matter may continue to be one for development at common law, so that the present position is as stated by the majority in R v Falealili [1996] 3 NZLR 664 (CA). Although, perhaps not: in R v Kant [2008] NZCA 194 (1 July 2008) a divisional Court held that under the Evidence Act 2006 evidence that a defendant has no previous convictions would not meet the high standard of being "substantially helpful" on the issue of veracity (s 37(1)), so would not be admissible. The Court indicated that this point should be determined by the permanent Court as soon as possible.

[Update: in Wi v R [2009] NZSC 121 (27 November 2009) the Supreme Court overruled Kant, holding that evidence of absence of previous convictions does meet the requirement of relevance and is admissible as propensity evidence notwithstanding that its probative value may be slight. The Court added that a good character direction is not mandatory and will usually not be desirable, but the judge must be guided by the requirements of fairness.]

Liability 101: a tutorial teaser

An aspect of the mens rea requirements for liability as a secondary party to an offence was decided in R v Rahman [2008] UKHL 45 (2 July 2008).

Broadly, some foresight is required before accessory liability arises, but is it about what the principal might do, or what he might intend?

The Law Lords unanimously held that foresight goes to what the principal might do, not what he might intend.

In this case four men were charged with murder, and it was likely that the person who struck the fatal blow was never apprehended, as many of the participants in this confrontation between groups of youths fled as the police arrived. There was no doubt that the infliction of unlawful violence was a shared intention, and participants were armed with blunt instruments. However, the victim’s death was caused by a knife used with deadly force. The four defendants (appellants) did not know or foresee that killing was intended. This was held to be no obstacle to their conviction for murder.

The reasons for excluding knowledge or foresight of the principal’s intention from the mens rea for secondary liability were based on considerations pertaining to murder (Lord Bingham at 24-25). Foresight of the principal’s acts, insofar as they involved infliction of serious injury, was given some modification by Lord Brown at 68, with whom Lord Scott appears to have agreed at 31, and with whom Lord Neuberger agreed at 104: foresight of violent acts does not include the unexpected use of a more lethal weapon than had been expected as that would make the principal’s act fundamentally different from anything foreseen. Lord Bingham considered (26) that the exclusion of secondary liability where the principal’s act was “fundamentally different” from what was foreseen was a sufficiently clear criterion for a jury to understand without elaboration.

In New Zealand this topic is dealt with in s 66(2) of the Crimes Act 1961:

“Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.”

The point decided in Rahman would, if applied to this, mean that the word “known” applies to the actus reus of “the commission of that offence”, and not to its mens rea.

And here's the teaser: what if the victim in Rahman had survived and the accuseds were charged with being accessories to attempted murder? Would they have no defence that the principal did not intend to kill?

Policy fairness and trial fairness

There are times when the concept of a fair trial calls for explanation. Different notions of what a fair trial is lie behind the 6-1 split in the Chamber Court in Gafgen v Germany [2008] EctHR 565 (30 June 2008).

Evidence had been obtained after the police had subjected the accused to threats which amounted to inhumane treatment, in breach of Art 3 of the ECHR. Part of this evidence comprised his confessional statements made as a result of the threats, before trial, and these statements were ruled inadmissible. This appeal concerned the admissibility of real evidence obtained after the confession, when the accused showed the police where he had concealed the body of the child he had killed. This consisted of the finding of the dead child and the results of a subsequent autopsy, and the accused’s vehicle’s tyre marks in the ground near the body.

The majority noted that the Regional Court in Germany had determined the admissibility of this real evidence, applying a balancing exercise and ruling it admissible, and the European Court’s role was to consider the overall fairness (105). This was not a case where the police had used actual force on the accused so the trial was not one which would be automatically unfair.

That is the point at which one Judge dissented: he held that unfairness should follow automatically upon a finding of a breach of Art 3, which is absolute in its terms. There is no room, he said, for permitting some inhumane treatment just because the suspect poses a serious risk to the safety of the community. The breach of Art 3 was a breach of the accused’s right to silence and it thereby affected the fairness of the trial.

The majority’s view of the meaning of the fairness of a trial can be seen from its analysis of the position here (106-109). The accused, represented at trial, had made new and complete confessions. These proved he had planned the offences (kidnapping, demanding a ransom, and murder) and the statements were corroborated by a witness and by a note found at the accused’s flat. The police had observed the accused collect the ransom. The only use made by the trial court of the items of impugned evidence was to confirm the trial confessions. The impugned evidence was therefore, said the majority, of an “accessory” nature only, in the sense that it’s use was restricted to assessing the veracity of his trial statements. The two statements he made at trial, one at the beginning and one at the end, were in different terms, reflecting a defence strategy, and were not, said the majority, made as a result of his loss of rights as a result of breach of Art 3. The Regional Court had given a reasoned decision for its rejection of his submission that the evidence in question here was inadmissible, and so the accused’s trial rights were also observed in that regard.

From this perspective, the minority Judge was incorrect to the extent he implied that the only reason the accused was on trial was because he had been subjected to a breach of his Art 3 rights.

On what basis could the proceedings against Mr Gafgen have properly been said to be unfair? There are two relevant ways in which fairness is used in this context: public policy fairness and procedural fairness. Public policy fairness involves the balancing of an impropriety against other relevant values in order to determine whether challenged evidence should be excluded, or, where the impropriety is at the serious extreme, whether the proceedings should be stayed. The Regional Court in this case carried out this balancing exercise and ruled the evidence admissible. The Strasbourg Court did not interfere with that assessment, and it suggested that only where there is physically inhumane treatment should the proceedings be stayed. The dissenting Judge, in effect, would have held that any inhumane treatment, including threats, should be sufficient to require a stay of the proceedings.

The second way in which fairness is used is in the concept of a procedurally fair trial. This means a trial in which the law is accurately applied to facts that are determined impartially. The majority held that, given the correctness of the balancing decision to admit the evidence, there was no resulting impartiality. The trial Court did not give improper weight to other evidence as a result of the admission of the challenged evidence. Neither, as “accessory” evidence, was the challenged evidence given weight that it did not merit. On the other hand, the dissenting Judge, in effect, considered that the breach of Art 3 resulted in a breach of the accused’s right to silence, and impartiality arose from the prosecution having the advantage of more evidence than it would have gathered without the breach of Art 3.

The position would have been clearer if the ECtHR had been willing to examine the correctness of the Regional Court’s carrying out of the balancing exercise, although there are reasons of jurisdiction for it not having done so. If the Court had examined the balancing exercise, it probably would not have accepted that all breaches of Art 3 carry the same weight. Some forms of inhumanity are indeed more serious than others. Not all such improprieties require exclusion of evidence in serious cases. The dissenting Judge was wrong on the public policy aspect of the case. He treated policy matters that were the domain of the national court as if they were relevant to procedural fairness. He was also wrong to hold that the breach of the accused’s right to silence (assuming that there was such a breach) led to impartiality through the prosecution having more evidence than it should have had: the quantity of evidence is an admissibility issue to be determined by the public policy balancing exercise; an analogy may be made with evidence obtained through improperly conducted searches. The minority Judge’s concerns are subsumed in the balancing exercise.

Of course views on the correctness of Gafgen v Germany may differ. It is worth looking at the case to see how strikingly similar the balancing exercise is in German law to that in the jurisdictions that follow the English tradition. The similarity is enough to make you pick up your copy of George Fletcher’s “Rethinking Criminal Law” (1978) – happy 30th! – but as his American English is rather unclear I don’t get far with it, again. But don’t let my difficulties put you off; I am, apparently, the only person who thinks HLA Hart’s English English is tediously obscure.

Counsel misconduct: unfair or merely improper?

When does it matter that counsel conducts a case improperly? In Huggins v The State (Trinidad and Tobago) [2008] UKPC 30 (9 June 2008) prosecuting counsel was held not to have caused the trial to be unfair, although it was complained that he had made disparaging and belittling remarks about witnesses and counsel and that he had accused one counsel of being party to concocting his client's case and coaching him in his evidence (para 18).

The Board’s assessment was (para 32):

“…their Lordships strongly deplore behaviour of this nature by prosecuting counsel. They should observe proper standards of decorum and courtesy in their conduct of the case, their treatment of the witnesses and the presentation of their addresses to the jury, as should all counsel in a trial. They should take care not to misrepresent the evidence given on either side or the case being made on behalf of the defence. They are of course entitled to make out as effectively as they can the prosecution case against the defendant, that he is guilty of the crime charged, for that is their proper function in an adversarial system. They have to be careful, however, not to allow vigour in presentation of the prosecution case to trespass into the area of unfairness by indulging in the type of behaviour exemplified by the cases which their Lordships have cited. Regrettably prosecuting counsel in the present case overstepped the mark on a number of occasions, and it would have been preferable if the judge had pulled him up earlier and made it clear that such behaviour was unacceptable. The issue is whether his departure from propriety was of such a nature as to deprive the appellants of a fair trial.”

This effort to state standards that apply to all counsel is, unfortunately, hindered by the Board’s deference to the view of the Court of Appeal here, as it acknowledged that it was “influenced by the fact that the Court of Appeal, with their knowledge of local conditions and culture, were of opinion that those remarks would not influence a jury in Trinidad to an extent which would make a trial unfair.” (para 34)

What, then, is the sort of influence on a jury that would make the trial unfair? The Board emphasised the approach in Randall v R [2002] UKPC 19 that the overriding requirement is that the trial is fair, regardless of the strength of the evidence against the accused. As Lord Bingham said at para 28 of Randall:

“…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.”

The exercise is one of weighing up the seriousness of the irregularities (29) as occurred in Bernard v The State [2007] UKPC 34 (blogged here 11 May 2007). As I noted in discussing Bernard, the views of Lord Carswell (who delivered the Board’s judgment in that case and in the present case) may be changing, to emphasise that fairness does not turn on the strength of the prosecution case.

Given that we are not here to focus on the strength of the prosecution case, the sort of influence on the jury that is relevant is the risk that the jury will become prejudiced, partial, biased as a result of the misconduct.

That is why the Board was prepared to be influenced by the Court of Appeal’s view of the effect of the misconduct on the jury in this case.

This is not to say that, in countries with such juries, counsel may engage in misconduct as long as it falls short of causing unfairness. The Board made it clear that when it occurs, the judge should intervene to prevent its continuation.

The cases illustrate distinctions between robust but respectful speech (Benedetto v R [2003] UKPC 27) and gratuitous and unpleasant remarks about defence counsel and improper vouching for the soundness of the prosecution case (Ramdhanie v The State (Trinidad and Tobago) [2005] UKPC 47).

The idea that unfairness is unfairness, no matter whether it is caused by procedural error or the improper admission of evidence, which I have advanced in discussing Bernard v The State, is relevant to another aspect of the present case. A second ground of appeal was that new evidence undermined the ruling at voir dire that statements by two of the accused were admissible. Here the Board noted (37) “Given the strength of the prosecution case, the prospect that the material would have caused the jury to reach a different conclusion on these appellants' guilt is highly questionable.” This seems to be treating the (posited) improper admission of evidence as being cured by the strength of the prosecution case. This was obiter, as the new evidence was held not to have affected the correctness of the decision to rule the statements admissible.

It would have been more in keeping with an unfragmented concept of fairness to hold that the statements, if wrongly ruled admissible, did not cause the jury to be more disposed to accepting other prosecution evidence than it otherwise would have been.

More hearsay ...

In this season of contemplation of hearsay, the Supreme Court of Canada chips in with R v Blackman [2008] SCC 37 (26 June 2008). This concerns the principled approach to admission of hearsay that is not covered by another recognised exception to the exclusionary rule.

Here the hearsay statements were by the now deceased victim to his mother, the witness who would report the statements to the court. They were relevant to an issue: the identity of his killer.

Some points made by the Court:

• At the stage where the determination of admissibility has to be made, the judge may have to accept an assurance from counsel that other evidence will establish the relevance of the proposed hearsay statements (para 32).
  

• The proponent of the hearsay must establish the necessity for it and its reliability on the balance of probabilities (33).
  

• It is wrong for the judge to ask whether the hearsay statement is inherently unreliable; that is to reverse the burden of proof. Because hearsay is presumptively inadmissible, the question is whether the proposed statement is inherently reliable (37-38).
  

• Absence of evidence of a motive to fabricate the assertion in the statement is not the same as evidence of an absence of motive to fabricate (39).
  

• The focus is on the trustworthiness of the hearsay statement (R v Khelawon, blogged here 15 December 2006): what are the dangers in admitting the statement and can these be overcome? (54)
  

• It is important not to confuse the determination of admissibility by referring to the wider circumstances of the case (57), but there can be occasions where the presence of corroboration does go to the trustworthiness of the hearsay statement (55).
  

These points, I suggest, have some relevance to the approach to hearsay in New Zealand: see Evidence Act 2006, ss 16 – 22, especially s 18(1)(a). In other respects the decision in Khelawon is not applicable here, insofar as in some circumstances it passes to the jury the assessment of the reliability of the statement and this could confuse reliability with probative value. The last point is difficult: it means that generally the reliability of the hearsay statement is assessed by reference to the context in which it was made, and not by the context of the overall evidence in the case, except that sometimes corroborative evidence will assist in deciding admissibility.

The customer appreciation party

Notable about Smith v R (Jamaica) [2008] UKPC (23 June 2008), aside from a sardonic and picturesque narrative of the facts (involving the fatal stabbing of “Ram Puss” at a street party in Kingston which was a “customer appreciation party” hosted by the appellant’s father at a shipping container which had been converted to a small “cook shop”), is a comment on the standard of proof of facts that have to be established before evidence becomes admissible.

Here, the evidence in question was a deposition made by an eyewitness who became too afraid to give evidence at trial. Certain matters, set out in s 31D of the Evidence Act 1843, had to be “proved to the satisfaction of the court”. The Board held, para 21, "In their Lordships' opinion the standard applicable is proof beyond reasonable doubt … ".

This is of particular interest at a time when courts are tending to be satisfied with proof of preliminary facts to the standard of the balance of probabilities: see for example R v Aylwin [2008] NZCA 154.

Other topics touched on are the duties of prosecution counsel, the probative/prejudicial effect balancing exercise, and the absence of a good character direction. On the latter, the Board held, at 30:

“The law has become clearer since the time of this trial and it hardly needs repetition now that a defendant is entitled to have a good character direction from the judge when the facts warrant it and that its absence may be a ground for setting aside a verdict of guilty. It is the duty of defence counsel to ensure that the defendant's good character is brought before the court, and failure to do so and obtain the appropriate direction may make a guilty verdict unsafe: Sealey & Headley v The State [2002] UKPC 52, (2002) 61 WIR 491; Teeluck & John v The State [2005] UKPC 14 [2005] 1 WLR 2421. It has, however, been emphasised by the Board in recent cases that the critical factor is whether it would have made a difference to the result if the direction had been given: see, eg Bhola v The State [2006] UKPC 9, (2006) 68 WIR 449, para 17, per Lord Brown of Eaton-under-Heywood. In the present case the appellant did not give evidence and merely made an unsworn statement from the dock, so that the credibility limb of the direction would have been of lesser consequence. The propensity limb might have been of some relevance, but their Lordships do not consider that, looking at the trial as a whole, it would have made any difference to the verdict.”

I have commented here on Teeluck (see blog for 1 April 2005). See also Gilbert v R (Grenada) (29 March 2006). The extract just quoted from Smith states the critical factor as “whether it would have made a difference to the result if the direction had been given”. At this point the Board teeters on the brink of a terrible mistake. It would involve, as I pointed out discussing Gilbert, treating procedural unfairness as being remedied by strong prosecution evidence. However in the last sentence the Board appears to regain its balance, if it is saying that absence of propensity evidence would not have caused the jury to give inappropriate weight to any of the prosecution evidence: that would be a procedural ground for the decision, not a strength of prosecution case ground.

Hearsay and the US Constitution

Giles v California [2008] USSC No 07-6053 (25 June 2008) illustrates a tension between the Constitution and the law of evidence in California, and, by analogy, between the Constitution and the Federal Rules of Evidence (FRE). This was not a case where the FRE applied, but the California Evidence Code did.

Broadly, for the details are of little interest outside the USA, a majority of the Supreme Court held that the State court needed to make a further factual finding before the admissibility of some hearsay evidence could be determined. Scalia J, who delivered the opinion of the Court, was not in the majority in one important respect.

This concerns whether the Constitution can be read as accommodating developments in the law of hearsay, or whether its effect remained as the founders (a term I use broadly to include those who amended the Constitution) understood the law to be and wanted it to remain. Scalia J adhered to the Court’s decision in Crawford v Washington 541 US 36, 53-54 (2004) which takes the latter alternative, and said (slip op. p 22) that it is not for the Court to go behind the words of the Constitution to find underlying values which are then used to modify the effect of the guarantees.

That approach, rejecting growth and development, contrasts with rule 102 of the FRE, whereby the rules:

“… shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”

The FRE rule 807 creates a residual exception to the rule excluding hearsay, but the California Evidence Code does not have a corresponding provision; that is why resort was had in Giles to the Sixth Amendment right of confrontation. The Californian Code does, however, set out rules that would, subject to the factual matter yet to be determined, be applicable to the situation in this case (s 1370) and the Code must be construed liberally and with a view to promoting justice (s 2).

Breyer J, dissenting, referred to the interpretation issue (slip op. p 10):

“…the hearsay rule has always contained exceptions that permit the admission of evidence where the need is significant and where alternative safeguards of reliability exist. Those exceptions have evolved over time, see 2 K. Brown, McCormick on Evidence §326 (2006) (discussion the development of the modern hearsay rule); Fed. Rule Evid. 102 (“[T]hese rules shall be construed to secure . . . promotion of growth and development of the law of evidence”), often in a direction that permits admission of hearsay only where adequate alternative assurance of reliability exists, see, e.g., Rule 807 (the “Residual Exception”). Here, for example, the presence in court of a witness who took the declarant’s statement permits cross-examination of that witness as to just what the declarant said and as to the surrounding circumstances, while those circumstances themselves provide sufficient guarantees of accuracy to warrant admission under a State’s hearsay exception. See Cal. Evid. Code Ann. §1370.”

In Breyer J’s opinion, it was not necessary for the Constitution to set a high threshold for the loss of the right to confront a witness, because State legislatures could (and here, did) establish their own safeguards:

“To lower the constitutional barrier to admission is to allow the States to do just that, i.e., to apply their evidentiary rules with flexibility and to revise their rules as experience suggests would be advisable. The majority’s rule, which requires exclusion, would deprive the States of this freedom and flexibility.” (p. 11)

Breyer J was joined by Stevens and Kennedy JJ. Souter and Ginsburg JJ joined with Scalia J in all except the part of his opinion which dealt with the approach to interpreting the Constitution. This majority favoured a view of the Constitution that permitted development of the exceptions to the hearsay rule.

Refugees who might be criminals

It is of some comfort to learn that information gained from applicants for refugee status may be passed to authorities concerned with extradition or prosecution for crime: Attorney General v X and the Refugee Status Appeals Authority [2008] NZSC 48 (20 June 2008).

Three of the four judges in the lower courts had held that s 129T(3)(b) of the Immigration Act 1997 prevents such disclosure, but the dissenting judgment in the Court of Appeal was upheld.

Although the question of law in this case focused on use of information for the purpose of extradition or for possible prosecution of the first respondent in New Zealand under the International Crimes and International Criminal Court Act 2000, the decision is wider:

“12. … s 129T(3)(b) therefore permits disclosure to those referred to in that paragraph for the purpose of their considering the extradition or prosecution of the first respondent.”

For other examples of New Zealand’s assertion of jurisdiction to prosecute for certain crimes committed overseas, see also Crimes Act 1961, s 7A, Misuse of Drugs Act 1975, s 12C.

Difficult people

Is the right to conduct one’s own defence without representation by counsel essential to the fairness of a trial?

No: the fairness of a trial may be undermined if self-representation gives rise to loss of dignity and improper conviction. This risk arose as a result of the defendant’s uncertain mental state in Indiana v Edwards [2008] USSC No 7-208 (19 June 2008):

“… a right of self-representation at trial will not “affirm the dignity” of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel ... To the contrary, given that defendant’s uncertain mental state, the spectacle that could well result from his self-representation at trial is at least as likely to prove humiliating as ennobling. Moreover, insofar as a defendant’s lack of capacity threatens an improper conviction or sentence, self-representation in that exceptional context undercuts the most basic of the Constitution’s criminal law objectives, providing a fair trial. As Justice Brennan put it, “[t]he Constitution would protect none of us if it prevented the courts from acting to preserve the very processes that the Constitution itself prescribes.”  Allen, 397 U. S., at 350 (concurring opinion). See Martinez, 528 U. S., at 162 (“Even at the trial level . . . the government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer”). See also Sell v. United States, 539 U. S. 166, 180 (2003) (“[T]he Government has a concomitant, constitutionally essential interest in assuring that the defendant’s trial is a fair one”).

“Further, proceedings must not only be fair, they must “appear fair to all who observe them.” Wheat v. United States, 486 U. S. 153, 160 (1988).”

In Edwards the trial judge, who had also presided over preliminary hearings, had found that the defendant was competent to stand trial but was not competent to defend himself. Counsel was appointed to act for him, and he appealed his conviction, arguing that he had the constitutional right to represent himself. The Supreme Court held that trial judges have the authority to deal appropriately with cases where mental competence and fairness are in issue, and that the Constitution does not prevent a state insisting that a defendant who can’t represent himself has counsel appointed.

The considerations relevant to the issues of fairness that may arise when a defendant seeks to represent himself were addressed by Lord Bingham (as CJ) in Milton Brown [1998] 2 Cr App R 364, at pp 369-372:

“The trial judge is … obliged to have regard not only to the need to ensure a fair trial for the defendant but also to the reasonable interests of other parties to the court process, in particular witnesses, and among witnesses particularly those who are obliged to relive by describing in the witness box an ordeal to which they say they have been subject. It is the clear duty of the trial judge to do everything he can, consistently with giving the defendant a fair trial, to minimise the trauma suffered by other participants. Furthermore, a trial is not fair if a defendant, by choosing to represent himself, gains the advantage he would not have had if represented of abusing the rules in relation to relevance and repetition which apply when witnesses are questioned.

“Judges do not lack power to protect witnesses and control questioning. The trial judge is the master of proceedings in his court. He is not obliged to give an unrepresented defendant his head to ask whatever questions, at whatever length, the defendant wishes. In a case such as the present it will often be desirable, before any question is asked by the defendant of the complainant in cross-examination, for the trial judge to discuss the course of proceedings with the defendant in the absence of the jury. The judge can then elicit the general nature of the defence and identify the specific points in the complainant’s evidence with which the defendant takes issue, and any points he wishes to put to her. If the defendant proposes to call witnesses in his own defence, the substance of their evidence can be elicited so that the complainant’s observations on it may, so far as relevant, be invited. It will almost always be desirable in the first instance to allow a defendant to put questions to a complainant, but it should be made clear in advance that the defendant will be required, having put a point, to move on, and if he fails to do so the judge should intervene and secure compliance. If the defendant proves unable or unwilling to comply with the judge’s instructions the judge should, if necessary in order to save the complainant from avoidable distress, stop further questioning by the defendant or take over the questioning of the complainant himself. If the defendant seeks by his dress, bearing, manner or questions to dominate, intimidate or humiliate the complainant, or if it is reasonable apprehended that he will seek to do so, the judge should not hesitate to order the erection of a screen, in addition to controlling questioning in the way we have indicated.

“The exercise of these powers will always call for the exercise of a very careful judgment, since the judge must not only ensure that the defendant has a fair trial but also (which is not necessarily the same thing) that the jury feel he has had a fair trial.”

This was quoted by the New Zealand Court of Appeal in R v Cumming [2006] 2 NZLR 597, (2005) 22 CRNZ 171, which set out the following considerations:

“[50] Where, as happened in this case, an accused person with mental difficulties, who is assessed as fit to stand trial, wishes to dispense with counsel’s services and to represent himself, the questions which arise concerning compliance with the accused’s rights under ss 24 and 25 of the Bill of Rights and must be addressed in a different mental context. The requirement that the accused is rationally able to understand the proceeding and functionally able to defend it during the trial process must be addressed on the basis of the accused’s capacity to do that adequately in person, rather than merely through communication of instructions to counsel. The accused must have the capacity, albeit at a basic level, to participate directly in the trial through questioning witnesses and communicating the defence to the Court. This test, however, must be applied in a reasonable and common sense way. The corollary of a finding that an accused person is fit to plead but unfit due to psychological condition or any other reason to exercise the right to represent himself or herself personally at the trial, is that the statutory right to self-representation must be denied because the fundamental right to a fair trial will not be upheld if the accused is permitted to proceed to trial without counsel. In overseas jurisdictions this has resulted in the imposition on a defendant of counsel to conduct the defence. Before reaching that extreme position the trial Court must look at available means of accommodating all rights. One way of doing so may be to follow the course of appointing as an amicus a counsel whose role is to be available at the trial to assist the accused. The effect of the appointment of [counsel] to such a role in this case is an important consideration in determining whether the appellant was tried without unfairness or injustice in this case.

“[51] The decision of an accused to conduct the defence personally can often have repercussions for the course of the trial. Situations can arise in which the trial Judge may be required to intervene in the trial to avoid its disruption and ensure overall fairness to each side. It may also be necessary to act in unorthodox ways to accommodate the legitimate interests of others participating in the trial process as well as those of the accused. In appropriate cases the interests of witnesses, including complainants, may be accommodated by departure from standard criminal procedures in a manner that is consistent with the right to a fair trial: Brown v Stott [2003] 1 AC 681; [2001] 2 WLR 817 (PC), p 708; pp 839-840 per Lord Steyn [also reported as Procurator Fiscal v Brown (Scotland)[2000] UKPC D3].”

The Court of Appeal’s perception that the trial had been conducted fairly in Cumming was not upheld in the Supreme Court (see blog 16 May 2008), because the Court of Appeal had been unaware – as had the trial Judge – that the defendant should not have been diagnosed as fit to stand trial. The diagnosis had been made under a now-repealed law which had used the rather difficult concept of being “under disability” which required a (defined) “mental disorder”; now the new concept is that of being “unfit to stand trial” which requires an (undefined) mental impairment. The absence of a definition of this central concept is designed, apparently, to increase the occasions on which a difficult defendant is not put through the trial process. Being unfit to stand trial (s 4 Criminal Procedure (Mentally Impaired Persons) Act 2003) “means a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so …”.

I suppose it would be tempting to attribute difficult behaviour to mental impairment. Defendants who would pursue that as an avenue for avoiding criminal justice procedures will need to check the consequences of being found unfit to stand trial.

A recanting eyewitness

R v Devine [2008] SCC 36 (19 June 2008), routine in the sense that it does not decide new law, is a case that highlights the common law approach to the admissibility of a witness’s prior inconsistent statement as evidence of its truth. I say “common law”, meaning Canadian common law, but the approach will be familiar to anyone who has read this far. The case applies law stated in two cases I have noted previously: R v Khelawan, 15 December 2006, and R v Couture, 19 June 2007.

When the prior statement is sought to be used as evidence of its truth, it comes within the common law definition of hearsay. If a recognised specific exception does not apply to it, it can only be admissible if it qualifies under what in Canada is called the "principled approach” or “principled exception”, and what in other jurisdictions may be called the residual exception.

The principled or residual exception applies criteria that focus on two points: is it necessary, in the sense that there is no direct way of presenting the evidence, and if so, are there sufficient means of assuring that it is reliable? Where the witness is available for cross-examination at trial, as was the case in Devine, this reliability criterion will easily be met.

Does this mean that, where the witness is available for cross-examination, the principled exception will almost inevitably permit the admission of a prior inconsistent statement? Yes it seems to, but there is also the back-stop protection of the discretion to exclude evidence where its illegitimate prejudice “outweighs” (a mis-description of the test but so well established that its necessary meaning departs from its verbal formulation) its probative value.

In New Zealand the Evidence Act 2006 now excludes from the definition of hearsay out of court statements by witnesses who give evidence and who are able to be cross-examined. There are indications in dicta in Devine at 27 that if a witness claimed not to remember or refused to answer questions on relevant topics she would not be regarded as available for cross-examination. That is consistent with the Evidence Act 2006 s 4 definition of “witness” as a person “who gives evidence and is able to be cross-examined”. Prior inconsistent statements of witnesses who are able to be cross-examined are admissible for their truth, subject to the general exclusion provision, s 8. The statutory formulation of this (a revision of the common law “weighing” exercise) emphasises the right of the defendant to offer an effective defence. There are thus two reasons for excluding a prior statement if the person in the witness box refuses to answer or claims to have forgotten material points: the person is not able to be cross-examined and so is no longer a witness, and, if the person remains a witness, the right of the defendant to offer an effective defence is very likely to be breached.

In Devine the prosecution sought, successfully, to use a prior inconsistent statement by its own witness. There are, of course, limitations on the right of a party to challenge the evidence of its own witnesses. In this situation, hostility by the witness needs to be shown. Although not treated as a separate topic in this case, it is clear that the witness was being hostile: she gave evidence that the judge rejected about the source of her information in the prior statement identifying the accused as the person who has assaulted her companion (claiming in effect that it was hearsay and not her own observation); the judge found that she said this in an effort to avoid repeating the identification. In New Zealand s 4 of the Evidence Act 2006 defines “hostile” in this situation to require, in addition to inconsistency, “an intention to be unhelpful to the party who called the witness”. If that is established, the judge may give permission under s 94 to the caller to cross-examine, to an extent that the judge authorises.

No right to crime

There are times when, although a case has passed routinely through the stages of plea of guilty and the imposition of a lenient sentence, counsel for the defence might nevertheless have a residual feeling of unease about the whole thing.

Nothing to be done as far as criminal law is concerned … but what about human rights law? Now there’s an idea.

Not so fast, said Lord Hoffmann in R v G [2008] UKHL 37 (18 June 2008) at 10:

“This case is another example of the regrettable tendency to try to convert the whole system of justice into questions of human rights.”

And, as Lord Mance noted (72), there had been no application in this case to vacate the plea or to stay the proceedings.

What were they talking about? Two things: whether a particular sex offence, defined in absolute terms, should have implied into it a defence of honest mistake as to the age of the victim, and whether the prosecution authorities should have chosen to allege a lesser form of the offence – ie, not rape but being a person under 18 (he was 15) having sex with a person under 13 (she was 12).

The absolute liability point was sought to be converted into a question of human rights by resort to art 6 of the ECHR, specifically the right to a fair trial and the right to be presumed innocent until proven guilty. This endeavour was unsuccessful: all the Law Lords (including Baroness Hale in that description) held that, as was well established, those rights apply to procedure, not to the substantive content of the law enacted by contracting parties to the Convention. The argument advanced for the appellant here did not concern who had the burden of proof, so did not qualify for consideration under this article.

The second point, concerning prosecutorial discretion, required some imaginative thinking by the rights lawyers: under art 8, the right to privacy, the offender should not be interfered with by the state (by being prosecuted) to an unjustified extent. Only Lords Hope and Carswell thought there was anything in this. Lord Hope at 34 said that the decision to prosecute must be necessary and proportionate, and he would have allowed the appeal; Lord Carswell agreed, 60, adding that it would be a good idea to remove the word rape from the lawyers’ vocabulary.

Baroness Hale agreed with Lord Hoffmann and Lord Mance that this was not an art 8 issue, but even if it was she would have held that the prosecutiorial decision was proportionate:

“54 … This does not in my view amount to a lack of respect for the private life of the penetrating male.”

Lord Hoffmann was just as clear, if less blunt:

“9… the case has in my opinion nothing to do with article 8 or human rights. Article 8 confers a qualified right that the state shall not interfere with what you do in your private or family life. Any interference with your conduct by the state must be necessary and proportionate for one of the purposes mentioned in article 8.2. But you either have such a right or you do not. If the state is justified in treating your conduct as unlawful, for example, because you are beating your wife or sexually abusing children, article 8 does not generate an additional right that the state shall not be too hard on you for whatever you have done because it happens to have been done at home.”

The right to privacy does not include the right to be prosecuted with restraint. The question of what the court should do when it appears to be unfair to convict an offender for the most serious of the offences available is one that can properly be addressed under the court’s inherent jurisdiction to prevent an abuse of its process. That will ultimately turn on whether the entry of the more serious conviction would bring the administration of justice into disrepute.

Creeping emasculation

“ … the creeping emasculation of the common law principle must be not only halted but reversed. It is the integrity of the judicial process that is at stake here. This must be safeguarded and vindicated whatever the cost”: Lord Brown, R v Davis [2008] UKHL 36 (18 June 2008) at para 66.

Here the issue was whether measures taken at trial to ensure the anonymity of witnesses had led to the trial being unfair.

All the Law Lords agreed that this case had resulted in unfairness. The witnesses were allegedly eye witnesses to the shooting of two people who died from the single shot fired by, they said, the accused. Without their testimony there would have been insufficient evidence to convict. Lord Bingham encapsulated the unfairness (para 32):

“To decide whether the protective measures operated unfairly in this case it is necessary to consider their impact on the conduct of the defence. For that purpose it cannot be assumed at the outset that the defendant is guilty and all that he says false. The appellant denied that he was the gunman. Why, then, did witnesses say that he was? His answer, on which his instructions to counsel were based, was that he believed the false evidence to have been procured by a former girlfriend with whom he had fallen out. Mr Swift [QC, counsel for the accused, and now appearing for the appellant] duly sought to pursue this suggestion in cross-examination of the unidentified witnesses, but was gravely impeded in doing so by ignorance of and inability to explore who the witnesses were, where they lived and the nature of their contact with the appellant. When, eventually, subject to the protective measures, a female witness was called whom the appellant believed to be the girlfriend it was at least doubtful whether she was or not, but this was a question that could not be fully explored. If the jury concluded that she was probably not the former girlfriend, they would also conclude that the defence had been based on a false premise. But this was an unavoidable risk if the defence were obliged, in the words of Lord Hewart CJ in a very different context (Coles v Odhams Press Ltd [1936] 1 KB 416), to take blind shots at a hidden target. A trial so conducted cannot be regarded as meeting ordinary standards of fairness.”

Although confrontation is not a “right” at common law (Lord Mance, 68), it is a “principle” (Lord Bingham, 5), and in the USA it is a Constitutional right (Sixth Amendment), and it can also be called a “right” in English common law (Lord Bingham calls it this at 6) but with long-recognised exceptions (he mentions dying declarations and res gestae statements). Lord Rodger noted at 40 that the permitting of testimony by anonymous witnesses has only occurred in “remarkably recent” cases. Lord Carswell, who was the only one to find “great difficulty” about the present case (at 47) stated the law in terms that Lord Brown specifically found too flexible (63), particularly disagreeing with Lord Carswell’s proposition “As a general rule it is unlikely that the trial will be fair if a very substantial degree of anonymising of evidence is permitted where the testimony of the witnesses concerned constitutes the sole or decisive evidence implicating the defendant.”

Lord Bingham disapproved any suggestion that a court could rely on the prosecution acting to ensure fairness to the accused:

“31. I do not doubt that the prosecutor in this case performed his duty of disclosure diligently and conscientiously. But the fairness of a trial should not largely depend on the diligent performance of their duties by the prosecuting authorities. All are familiar with notorious cases in which wrongful convictions have resulted from police malpractice, rare though such misconduct is….”

Reference was made (at 8, 40, 74) to a couple of New Zealand Court of Appeal cases, R v Hughes [1986] 2 NZLR 129, 147, 148-149 per Richardson J, and R v Hines [1997] 3 NZLR 529, which held that the right to confront an adverse witness is basic to any civilised notion of a fair trial, and that must include the right for the defence to ascertain the true identity of an accuser where questions of credibility are in issue. Both these cases were followed by legislation. The current New Zealand provisions are ss 110 – 119 of the Evidence Act 2006.

R v Davis is another assertion of the absolute nature of the accused’s right to a fair trial. This is a right that cannot be balanced against other rights or interests. As Lord Bingham noted at 16, there is a fundamental inconsistency between an absolute right and subjecting it to a balancing exercise. Departures from the right of confrontation are for the legislature to make (20), not for the common law to achieve by a series of small steps that are irreconcilable with long-standing principle (29). Lord Rodger described the legislative task in the following terms:

“45. It is for the Government and Parliament to take notice if there are indeed areas of the country where intimidation of witnesses is rife and to decide what should be done to deal with the conditions which allow it to flourish. Tackling those conditions would be the best way of tackling the problem which lies behind this appeal. Any change in the law on the way that witnesses give their evidence to allow for those conditions would only be second best. But Parliament is the proper body both to decide whether such a change is now required, and, if so, to devise an appropriate system which still ensures a fair trial.”

The ultimate issue, one which will set up a conflict between the legislature and the courts, is how courts will react if any such legislation permits trials to be unfair to accused persons. Can courts of “justice” be required to permit unjustly achieved convictions?

Easy sentencing

When does a sentencing judge’s determination of facts amount to depriving the offender of the right to trial by jury?

In convicting an accused, the jury may have only had to determine a narrow range of facts; circumstances relevant to the offending but not being elements of the offence do not need to be proved to the jury’s satisfaction to the standard of beyond reasonable doubt. They do, however, need to be proved to the sentencing judge’s satisfaction to that standard. Should the offender have the right to have the jury make that decision?

Normally sentencing judges, when faced with an issue of fact outside the facts implicit in a jury’s verdict, make their own findings to the appropriate standard of proof. The questions set out above only arise when the judge is bound by mandatory sentencing guidelines. Mandatory guidelines (a slightly oxymoronic expression) are like the elements of an offence: a fact has a necessary consequence. That, essentially (my analysis is expressed differently from the Court’s), is the reason the Supreme Court of the United States held unconstitutional the provision that made the Federal Sentencing Guidelines mandatory in United States v Booker [2005] USSC No 04-104, 12 January 2005.

In New Zealand we await the introduction of sentencing guidelines which are being prepared by our newly created Sentencing Council. These guidelines will not be mandatory: s 21A of the Sentencing Act 2002 (inserted by an amendment in 2007, not yet available online as not yet in force; oops, yes it is online - thanks to Ben Hamlin for pointing this out - here: s 21A) will require the guidelines to be adhered to unless the Court is satisfied that adhering to them would be contrary to the interests of justice. This seems to mean that, say, an aggravating fact found by the sentencing judge to be proved beyond reasonable doubt, will only have the consequence indicated in the guidelines if the offender does not satisfy the judge that it would be contrary to the interests of justice to impose that consequence. But more generally, either side may seek to move the court away from the guideline consequence.

Once the guidelines are subject to departure, will notice be required of an intention to seek departure? If notice might be appropriate, should it always be given, or should it only be required when a sought departure is of a high level? In Irizarry v United States [2008] USSC No 06-7517 (12 June 2008) it was held that, now that the guidelines are no longer mandatory, notice is not required because the guidelines don’t entitle either party to expect a particular outcome:

“Sound practice dictates that judges in all cases should make sure that the information provided to the parties in advance of the hearing, and in the hearing itself, has given them an adequate opportunity to confront and debate the relevant issues. We recognize that there will be some cases in which the factual basis for a particular sentence will come as a surprise to a defendant or the Government. The more appropriate response to such a problem is not to extend the reach of Rule 32(h)’s notice requirement categorically, but rather for a district judge to consider granting a continuance when a party has a legitimate basis for claiming that the surprise was prejudicial.”

(per Stevens J, delivering the opinion of the Court, slip op. p 7)

There may be times when the sentencing exercise becomes rather protracted, as issues of fact are determined and their consequences explored. It would be ludicrous to return these issues to the jury, and in a remote sense the sentencing council is a partial surrogate; Blackstone bewailed the removal of such issues from the jury, but his remarks could today be applied to the exercise of determining whether to depart from sentencing guidelines:

“[H]owever convenient these [new methods of trial] may appear at first (as doubtless all arbitrary powers, well executed, are the most convenient) yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concerns." 4 Commentaries on the Laws of England 343-344 (1769).” (quoted by Stevens J in US v Booker, above).

For an argument that the mandatory guidelines were not unconstitutional, see Richard Posner, “How Judges Think” (2008), at 290-292:

“Why the mandatory feature of the guidelines should have been thought to violate the Sixth Amendment, a provision designed for the protection of criminal defendants, is a mystery. Gearing sentences to findings made on the basis of evidence gave the defendants more procedural rights than they had had before the guidelines, when judges could pick any point in the statutory sentencing range when determining a sentence. Because judges' discretion had been greater (hence the greater variance in sentences), defendants' rights had been fewer, since a plea to a judge to exercise his discretion in favour of imposing a lenient sentence is a plea for mercy rather than a claim of right, unless his discretion is tightly cabined, as it was not in the pre-guidelines sentencing regime.” [p 291, Posner's emphasis]

"I didn't do it, but if I did ..."

CTM v R [2008] HCA 25 (11 June 2008) is another illustration of one of the irritating things about multi-judge cases.

The joint decision of Gleeson CJ, Gummow, Crennan and Kiefel JJ reads very convincingly, and we are left to wonder how anyone could dissent from its conclusion. The existence of honest (and reasonable) mistake was held to negative an element of the offence of having sexual intercourse with an underage person. But on the facts here the accused had not raised the issue at trial. The conviction was upheld.

Turning to the almost inevitable dissent of Kirby J, which was not referred to in the joint judgment, we see the case in a rather different light. Now it looks as though something went wrong: although the accused had not given evidence, in his interview with the police, that was part of the prosecution case, he had said he thought the girl was aged 16; that would have amounted to an absence of the state of mind that was necessary for commission of the offence. In Kirby J’s view, the Court should have ordered a retrial.

What are we expected to think? Plainly, that the majority are right, but why?

Hayne J agreed with the joint judgment, that the trial judge had misdirected the jury but that there was no substantial miscarriage of justice as no issue about the relevant mental element was raised at the trial. He did not refer to Kirby J’s reasoning. However, he does explain his basis for concluding that the issue of knowledge was not raised at trial:

“194 Without more, the fact that the appellant was proved to have made an out-of-court assertion about his belief as to the complainant's age was not sufficient to raise an issue at his trial about mistake. In his interview with police, the appellant had said that he believed the complainant was aged 16 years because she had told him this. No question about this alleged conversation or about any communication she may have had with the appellant about her age was directed to the complainant in the course of her evidence. Not having raised the matter with the complainant in the course of her evidence, it was not then open to the appellant, relying only on what he had told police, to say that there was a live issue at the trial about his belief about the complainant's age. To enliven the issue it was essential that the complainant be asked whether there had been a conversation of the kind described by the appellant to police. But not having raised the matter with her, it was not open to the appellant to say that the evidence elicited in the course of the prosecution's case sufficed to enliven the issue.” [emphasis added]

On this, Kirby J held that the issue had been raised:

“108 The necessity to "enliven the issue": By enlarging the obligation upon the accused to give, or adduce, evidence so as to "enliven the issue", the majority in this Court have departed from the Court's previous statements about the respective roles of the prosecutor and the accused. More fundamentally, they have increased the burden on the accused at the trial in a manner inconsistent with its accusatorial character and with the "golden thread" of which Viscount Sankey LC spoke in Woolmington[[1935] UKHL 1; [1935] AC 462 at 481].

“109 The particular suggestion that the appellant failed to "enliven the issue" because his counsel omitted to question the complainant about her age … illustrates this basic point. The appellant's counsel was perfectly entitled to present his case in terms of a denial that sexual intercourse took place at all, a course chosen no doubt on instructions and understandable for forensic reasons. He was not obliged to take a different course in order to "enliven an issue" of honest and reasonable mistake. The "issue" had an independent foundation in the evidence on the record. That foundation was adequate to allow counsel to "rais[e] the question"[He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523 at 593].”

Heydon J took a different view of the statutory interpretation exercise, and held that the appeal should be dismissed because there was no defence of absence of knowledge of the girl’s age.

The interesting part of the case, on which Kirby J dissented, is the holding that where a defence of absence of mens rea is based on what a witness has said to the accused, that matter must be put to the witness, even if the primary defence at trial is absence of actus reus. There is a duty to put the entire case by cross-examination of the appropriate witnesses.

The travelling writ

An appreciation of the pioneering impact of Boumediene v Bush [2008] USSC No 06-1195 (12 June 2008) can be obtained from the closing remarks of Scalia J (dissenting, joined by Roberts CJ, Thomas and Alito JJ):

“Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.

“The Nation will live to regret what the Court has done today. I dissent.”

It is the extension of the privilege of applying for the writ of habeas corpus to aliens abroad that is the central point in the majority decision (Kennedy J, joined by Stevens, Souter, Ginsburg, and Breyer JJ). But of more general interest to criminal lawyers are the reasons that the procedural protections that are in place for detainees at Guantanamo Bay fall short of what would be sufficient to displace the need for habeas corpus review.

These shortcomings are:

• Absence of legal representation
  

• A presumption that the Government’s evidence is valid
  

• An absence of limits on the use of hearsay evidence deemed relevant and helpful by the tribunal, rendering the opportunity to question Government witnesses more theoretical than real
  

• Limitations on a detainee’s ability to rebut the Government’s evidence
  

• Inability to cure procedural defects by appeal process
  

These procedural defects create “a considerable risk of error in the tribunal’s findings of fact” (Kennedy J at p 56), a risk too significant to ignore, especially as the detention is of indefinite duration. Such errors would, in each case, go to the legitimacy of the detention; without an adequate substitute for review by a court on habeas corpus, the statute removing the privilege of the writ was unconstitutional.

Lioness or Alsatian?

Does the standard of proof of a fact change according to the seriousness of its consequences?

The common law recognises only two standards of proof: the balance of probabilities, and beyond reasonable doubt. Lord Carswell made this observation yesterday in In re Doherty [2008] UKHL 33 (11 June 2008) at para 23.

The standard of proof on the balance of probabilities does not vary according to the gravity of the issue: obviously, where something is inherently unlikely, it will be more difficult to establish on the balance of probabilities that it happened, but the standard is the same as for all cases where that standard of proof applies. Lord Carswell, with whom all the other Law Lords agreed, cited at para 26 Lord Hoffmann’s “lion or Alsatian” illustration in para 55 of Secretary of State for the Home Department v Rehman [2001] UKHL 47, [2003] 1 AC 153:

“I turn next to the commission's views on the standard of proof. By way of preliminary I feel bound to say that I think that a 'high civil balance of probabilities' is an unfortunate mixed metaphor. The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard. But, as Lord Nicholls of Birkenhead explained in In re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563, 586, some things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent's Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not.”

The standard of proof referred to in Doherty concerned an allegation of offending that had been made about a person who had been sentenced to life imprisonment where the ultimate issue was whether it was consistent with the safety of the community that he again be released on parole. The House of Lords held that the tribunal, the Life Sentence Review Commissioners, had correctly applied the standard of proof on the balance of probabilities to this issue.

Lord Brown, agreeing with Lord Carswell, added that it was appropriate to highlight a difficulty concerning the relevance of the consequences for a party if the issue was proved against him: this should not be relevant to whether the standard of proof had been met. The only relevant consideration was the inherent probability of the fact in issue. He recognised however, para 48, that there are some dicta that suggest otherwise, particularly B v Chief Constable of the Avon and Somerset Constabulary [2001] 1 WLR 340, per Lord Bingham as LCJ at para 41, and that hold that where the issue has serious consequences for the party adversely affected, the civil standard of proof becomes almost indistinguishable from the criminal standard. As to this, Lord Brown observed:

“ … I question whether it would not have been more logical and appropriate to have decided that the making of the various orders calls for the criminal standard of proof to be satisfied in the first place. Certainly, once it became established, as finally it was in In re H, that there is no such thing as an intermediate standard of proof, logic surely demanded that one standard or the other be applied and common sense dictates the rest.”

Lord Neuberger agreed with Lord Carswell and also with Lord Brown, so this point has the authority of at least two of the Law Lords in In re Doherty; the others (including Lord Bingham) did not mention it.

Clarification of the fixed nature of the standards of proof does not clear up confusion about when a standard of proof applies. Questions of admissibility of evidence depend on the existence of facts, and it is not always clear whether a standard of proof of those facts applies. In Jiang v R (blogged here 5 July 2007) the New Zealand Supreme Court held that admission of evidence pursuant to the co-conspirators’ exception (also known as the preconcert exception) to the rule excluding hearsay requires “reasonable evidence” of the existence of the common enterprise and the participation of the relevant accused person in it. How does “reasonable evidence” compare with the “balance of probabilities”: is it a higher or a lower standard? Is it a third standard of proof?

And when does any standard of proof apply? Some decisions are described as matters of judgment not amenable to any particular standard of proof. Balancing exercises commonly occur when the court has to compare the probative value of evidence against its illegitimately prejudicial effect, and no particular standard of “proof” seems to apply to that exercise. Even recently established statutory schemes can be vague: for example the exclusion of improperly obtained evidence can occur if the impropriety is proved on the balance of probabilities and then if the court determines (no standard specified) that exclusion would be a proportionate response to the impropriety: s 30 Evidence Act 2006[NZ].

Some people think it is inappropriate to apply a standard of proof to anything other than a determination of fact. Many decisions are matters of judgment, about which all it can be said is that the court must be “satisfied”. The Jiang approach is not saved by this, because there the preconditions for admissibility are matters of fact, but one can more readily see that in balancing probative value against prejudicial effect the court is exercising its judgment. It will decide, for example, that the probative value of the evidence does outweigh the risk of improper prejudice that would arise from its admission. The trouble is, one can always ask, how sure of that are you?

In In re B (Children) [2008] UKHL 35 (11 June 2008) issues that overlapped those in In re Doherty were considered. Lord Hoffmann made it clear, para 2, that sometimes a legal rule requires a fact to be proved. Such a fact is called a fact in issue. Here, it was necessary to decide whether a child was “likely to suffer significant harm”, and this, as Baroness Hale (with whom all the other judges agreed) said, at para 22, is a prediction from existing facts. The issue was, to what standard did those existing facts have to be proved? These were, as Lord Hoffmann described them, facts in issue. The question was, what was the standard of proof of them “that is to say, the degree of persuasion which the tribunal must feel before it decides that the fact in issue did happen” (para 4). It was the balance of probabilities; there is only one civil standard of proof (para 13).

Lord Hoffmann carefully described the confusion that has occurred in the cases, and Lord Rodger and Lord Walker expressed their agreement (and also agreed with Baroness Hale). Essentially the confusion has concerned what Lord Nicholls meant in In re H (above) when he referred to heightened probabilities being required for proof of unlikely facts. Lord Hoffmann explained (para 12) that Lord Nicholls did not mean that where a serious allegation is in issue the standard of proof required is higher, notwithstanding that in R (McCann) v Crown Court at Manchester [2003] 1 AC 787, 812 Lord Steyn appears to have thought he did.

Baroness Hale laid to rest the misconception about what Lord Nichols had meant (para 64):

“My Lords, … Lord Nicholls' nuanced explanation left room for the nostrum, "the more serious the allegation, the more cogent the evidence needed to prove it", to take hold and be repeated time and time again in fact-finding hearings in care proceedings …. It is time for us to loosen its grip and give it its quietus.”

And concluded (para 70):

“… the standard of proof in finding the facts necessary to establish the threshold under [the relevant legislation here] is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.”

While the composition of the Appellate Committees in the two cases decided yesterday was different, with only Lord Scott being on both, there was obviously some discussion in the tea room. Lord Carswell’s assertion that the standard of balance of probabilities is finite and unvarying (in In re Doherty, para 28) is in harmony with Lord Hoffmann’s assertion that there is only one civil standard (In re B (Children) at para 13) and with Baroness Hale’s rejection of the idea that this standard can shift according to seriousness of the either the allegation or the consequences. In both cases there is support for the application of the criminal standard of proof in civil cases where the consequences of the finding of the fact in issue are particularly serious, but that would not be achieved by altering the level of proof required to satisfy the civil standard, and these cases did not call for application of the criminal standard.

The ECtHR has rejected the idea that stronger evidence is required to meet a specific standard of proof where the issue is serious: Saadi v Italy [2008] ECtHR 179 at 140.