The right to a fair trial is a right that the accused cannot waive.
This may seem a strange statement: why would the accused ever want to waive the right to a fair trial? Well, trial tactics are complicated things. If charged with one serious offence, the accused may prefer to hope for an outright acquittal on that rather than have the judge tell the jury that if they acquit on the serious charge they may then consider whether to convict on a lesser charge. A conviction on the lesser charge, and the consequence of imprisonment on that, may be something the accused would see as rendering his victory on the more serious charge Pyrrhic.
A fair trial is a trial conducted according to law. This means, as the House of Lords held this week in R v Coutts [2006] UKHL 39 (19 July 2006), that the jury must be fully informed about the alternatives available to it, whether either side want that or not. In Coutts, both sides agreed that the judge should not instruct the jury about the alternative of manslaughter, when the accused faced a solitary charge of murder. The Crown, confident that it would secure a conviction for murder, did not want the jury to instead convict for manslaughter, so, clothing its stance in the guise of a fairness objection, it argued that the accused was entitled to an acquittal if the jury had a doubt about the way the Crown had sought to prove its case for murder. The defence, having argued that the killing was accidental, did not want the risk of a conviction for manslaughter, because the sentence for that would, in the circumstances, be a lengthy term of imprisonment. Following the conviction for murder, the defence appealed, arguing that the judge should have directed the jury about manslaughter. The House of Lords upheld this argument and quashed the conviction, remitting the case so that a retrial could be considered.
Coutts establishes that fairness requires that the jury be fully informed about the law and the alternatives open for consideration in the particular case. Further, failure to inform the jury of the legal position amounts to a substantial miscarriage of justice. The appellate court does not enter into an inquiry about whether the jury only convicted the accused of the serious charge because it did not want him to walk free. To do that would be to engage in speculation. While a foundation of the system of trial by jury is the assumption that juries apply the directions on the law that judges give them (Lord Rodger, para 87), it is proper to recognise that the jury may be affected in its approach by the choices that it perceives as being available to it (an observation by Callinan J in the High Court of Australia case Gilbert v The Queen (2000) 201 CLR 414 para 101, quoted by Lord Bingham at para 20, Lord Hutton at 54, Lord Rodger at 88 and Lord Mance at 99).
Accordingly, the public interest in the administration of justice is best served if the judge leaves any obvious alternative offence to the jury irrespective of the wishes of counsel. Lord Bingham, with whom the other law lords agreed, put the requirement as follows (para 23):
"The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support. I would not extend the rule to summary proceedings since, for all their potential importance to individuals, they do not engage the public interest to the same degree. I would also confine the rule to alternative verdicts obviously raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial. Application of this rule may in some cases benefit the defendant, protecting him against an excessive conviction. In other cases it may benefit the public, by providing for the conviction of a lawbreaker who deserves punishment. A defendant may, quite reasonably from his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency.
"24. It is of course fundamental that the duty to leave lesser verdicts to the jury should not be exercised so as to infringe a defendant's right to a fair trial. This might be so if it were shown that decisions were made at trial which would not have been made had the possibility of such a verdict been envisaged. But no such infringement has ordinarily been found where there is evidence of provocation not relied on by the defence, nor will it ordinarily be unfair to leave an alternative where a defendant who, resisting conviction of a more serious offence, succeeds in throwing doubt on an ingredient of that offence and is as a result convicted of a lesser offence lacking that ingredient. There may be unfairness if the jury first learn of the alternative from the judge's summing-up, when counsel have not had the opportunity to address it in their closing speeches. But that risk is met if the proposed direction is indicated to counsel at some stage before they make their closing speeches. They can continue to discount the alternative in their closing speeches, but they can address the jury with knowledge of what the judge will direct. Had this course been followed in the present case there would have been no unfairness to the appellant, and while taking a contrary view the Court of Appeal did not identify the unfairness which it held would arise. It is not unfair to deprive a defendant, timeously alerted to the possibility, of what may be an adventitious acquittal."
Friday, July 21, 2006
Thursday, July 20, 2006
Public privacy
Courts may disagree over whether language is “grossly” offensive. In DPP v Collins [2006] UKHL 40 (19 July 2006) the House of Lords unanimously disagreed with two lower courts on this point. The defendant had left messages by telephone at his MP’s office, employing terms of racial abuse that were unquestionably offensive. The lower courts held that the messages did not cross the line between offensive and grossly offensive. The embarrassment of disagreeing with the lower courts was exacerbated because essentially the question whether the messages were “grossly” offensive was one of fact, to be determined by applying the standards of an open and just multi-racial society taking into account the context and all relevant circumstances (Lord Bingham, para 9) – standards which the lower courts should be particularly well placed to apply.
How had the lower courts gone wrong? Lord Bingham at para 13 concluded:
“Differing from the courts below with reluctance, but ultimately without hesitation, I conclude that the respondent's messages were grossly offensive and would be found by a reasonable person to be so.”
He agreed with Lord Carswell, who was a little more explicit about this (para 22):
“I felt quite considerable doubt during the argument of this appeal whether the House would be justified in reversing the decision of the magistrates' court that the reasonable person would not find the terms of the messages to be grossly offensive, bearing in mind that the principle to which I have referred, that a tribunal of fact must be left to exercise its judgment on such matters without undue interference. Two factors have, however, persuaded me that your Lordships would be right to reverse its decision. First, it appears that the justices may have placed some weight on the reaction of the actual listeners to the messages, rather than considering the reactions of reasonable members of society in general. Secondly, it was conceded by the respondent's counsel in the Divisional Court that a member of a relevant ethnic minority who heard the messages would have found them grossly offensive. If one accepts the correctness of that concession, as I believe one should, then one cannot easily escape the conclusion that the messages would be regarded as grossly offensive by reasonable persons in general, judged by the standards of an open and just multiracial society. The terms used were opprobrious and insulting, and not accidentally so. I am satisfied that reasonable citizens, not only members of the ethnic minorities referred to by the terms, would find them grossly offensive. "
The offence in question was held to require mens rea – an intention that the words be grossly offensive to those to whom they related, or an awareness that they may be taken to be so (Lord Bingham, para 11). But on the approach taken here, that state of mind need not be followed by actual offence taken by the recipient of the message. Indeed, it was held not to be necessary than anyone actually receive the message (para 8).
Consequently, the offence of sending a grossly offensive message could be committed without actually offending anyone. What makes it an offence is the fact that the social standards have been infringed. The offence is, on this interpretation, sending a message that would grossly offend a reasonable person if such a person became aware of it. That seems to be a bit of a stretch from the wording of the relevant legislation: s 127 of the Communications Act 2003[UK]:
“127. Improper use of public electronic communications network
(1) A person is guilty of an offence if he—
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.”
The justification for the imposition of community standards is the public nature of the communication network, which would be fine if everyone had ready access to everyone else’s communications. In reality, of course, the network is no more public than words exchanged in a conversation between two people on the street.
How had the lower courts gone wrong? Lord Bingham at para 13 concluded:
“Differing from the courts below with reluctance, but ultimately without hesitation, I conclude that the respondent's messages were grossly offensive and would be found by a reasonable person to be so.”
He agreed with Lord Carswell, who was a little more explicit about this (para 22):
“I felt quite considerable doubt during the argument of this appeal whether the House would be justified in reversing the decision of the magistrates' court that the reasonable person would not find the terms of the messages to be grossly offensive, bearing in mind that the principle to which I have referred, that a tribunal of fact must be left to exercise its judgment on such matters without undue interference. Two factors have, however, persuaded me that your Lordships would be right to reverse its decision. First, it appears that the justices may have placed some weight on the reaction of the actual listeners to the messages, rather than considering the reactions of reasonable members of society in general. Secondly, it was conceded by the respondent's counsel in the Divisional Court that a member of a relevant ethnic minority who heard the messages would have found them grossly offensive. If one accepts the correctness of that concession, as I believe one should, then one cannot easily escape the conclusion that the messages would be regarded as grossly offensive by reasonable persons in general, judged by the standards of an open and just multiracial society. The terms used were opprobrious and insulting, and not accidentally so. I am satisfied that reasonable citizens, not only members of the ethnic minorities referred to by the terms, would find them grossly offensive. "
The offence in question was held to require mens rea – an intention that the words be grossly offensive to those to whom they related, or an awareness that they may be taken to be so (Lord Bingham, para 11). But on the approach taken here, that state of mind need not be followed by actual offence taken by the recipient of the message. Indeed, it was held not to be necessary than anyone actually receive the message (para 8).
Consequently, the offence of sending a grossly offensive message could be committed without actually offending anyone. What makes it an offence is the fact that the social standards have been infringed. The offence is, on this interpretation, sending a message that would grossly offend a reasonable person if such a person became aware of it. That seems to be a bit of a stretch from the wording of the relevant legislation: s 127 of the Communications Act 2003[UK]:
“127. Improper use of public electronic communications network
(1) A person is guilty of an offence if he—
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.”
The justification for the imposition of community standards is the public nature of the communication network, which would be fine if everyone had ready access to everyone else’s communications. In reality, of course, the network is no more public than words exchanged in a conversation between two people on the street.
Friday, June 30, 2006
Our case against you is secret ...
No one could be surprised that included in the guarantees recognised as indispensable by civilised peoples are the right, when on trial, to be present, and to be privy to the prosecution evidence. In Hamdan v Rumsfeld, 548 US 557 (2006), 29 June 2006 the United States Supreme Court held that these rights applied to detainees that the Government proposed to prosecute in special military commissions.
Stevens J, joined by Souter, Ginsburg and Breyer JJ, wrote, in an important footnote (p 71, n67):
"The Government offers no defense of these procedures other than to observe that the defendant may not be barred from access to evidence if such action would deprive him of a "full and fair trial." Commission Order No. 1, ß6(D)(5)(b). But the Government suggests no circumstances in which it would be "fair" to convict the accused based on evidence he has not seen or heard. Cf. Crawford v. Washington, 541 U. S. 36, 49 (2004) (" ‘It is a rule of the common law, founded on natural justice, that no man shall be prejudiced by evidence which he had not the liberty to cross examine’ ") (quoting State v. Webb, 2 N. C. 103, 104(Super. L. & Eq. 1794) (per curiam)); Diaz v. United States, 223 U. S. 442, 455 (1912) (describing the right to be present as "scarcely less important to the accused than the right of trial itself"); Lewis v. United States, 146 U. S. 370, 372 (1892) (exclusion of defendant from part of proceedings is "contrary to the dictates of humanity" (internal quotation marks omitted)); Joint Anti-Fascist Refugee Comm. v. McGrath,341 U. S. 123, 170, n. 17, 171 (1951) (Frankfurter, J., concurring) ("[t]he plea that evidence of guilt must be secret is abhorrent to free men" (internal quotation marks omitted)). More fundamentally, the legality of a tribunal under Common Article 3 cannot be established by bare assurances that, whatever the character of the court or the procedures it follows, individual adjudicators will act fairly."
There is here an obvious relevance to the law concerning the use of special advocates. Such advocates are used, for example, in England and Wales in relation to some immigration matters: see the Special Immigration Commission Act 1997[UK], and Parts 3, 4 and 7 of the Special Immigration Appeals Commission (Procedure) Rules 2003 SI 2003/1034. These procedures have been described as "an unfortunate legacy from someone who rode roughshod over liberties in this country in a breathtaking manner" (per Dominic Grieve, Conservative Member for Beaconsfield, Commons Hansard, 23 February 2005).
A special advocate procedure is planned in New Zealand in relation to whether a person is a risk to the security of the nation for the purposes of certification by the SIS and consequent expulsion.
Stevens J, joined by Souter, Ginsburg and Breyer JJ, wrote, in an important footnote (p 71, n67):
"The Government offers no defense of these procedures other than to observe that the defendant may not be barred from access to evidence if such action would deprive him of a "full and fair trial." Commission Order No. 1, ß6(D)(5)(b). But the Government suggests no circumstances in which it would be "fair" to convict the accused based on evidence he has not seen or heard. Cf. Crawford v. Washington, 541 U. S. 36, 49 (2004) (" ‘It is a rule of the common law, founded on natural justice, that no man shall be prejudiced by evidence which he had not the liberty to cross examine’ ") (quoting State v. Webb, 2 N. C. 103, 104(Super. L. & Eq. 1794) (per curiam)); Diaz v. United States, 223 U. S. 442, 455 (1912) (describing the right to be present as "scarcely less important to the accused than the right of trial itself"); Lewis v. United States, 146 U. S. 370, 372 (1892) (exclusion of defendant from part of proceedings is "contrary to the dictates of humanity" (internal quotation marks omitted)); Joint Anti-Fascist Refugee Comm. v. McGrath,341 U. S. 123, 170, n. 17, 171 (1951) (Frankfurter, J., concurring) ("[t]he plea that evidence of guilt must be secret is abhorrent to free men" (internal quotation marks omitted)). More fundamentally, the legality of a tribunal under Common Article 3 cannot be established by bare assurances that, whatever the character of the court or the procedures it follows, individual adjudicators will act fairly."
There is here an obvious relevance to the law concerning the use of special advocates. Such advocates are used, for example, in England and Wales in relation to some immigration matters: see the Special Immigration Commission Act 1997[UK], and Parts 3, 4 and 7 of the Special Immigration Appeals Commission (Procedure) Rules 2003 SI 2003/1034. These procedures have been described as "an unfortunate legacy from someone who rode roughshod over liberties in this country in a breathtaking manner" (per Dominic Grieve, Conservative Member for Beaconsfield, Commons Hansard, 23 February 2005).
A special advocate procedure is planned in New Zealand in relation to whether a person is a risk to the security of the nation for the purposes of certification by the SIS and consequent expulsion.
Wednesday, June 28, 2006
The Ellis case and trial fairness
For a draft paper on the trial of Peter Ellis for sexual offending at the Christchurch Civic Creche, see my web site, and follow the links to more about me, and articles available on this site.
Thursday, June 15, 2006
A look at torts ...
During this strangely extended lacuna between interesting criminal cases around the world, we have a moment to glance at yesterday’s decision of the House of Lords in Jones v Saudi Arabia [2006] UKHL 26 (14 June 2006).
This case concerns the civil jurisdiction of domestic courts to adjudicate on claims in tort for damages for torture inflicted in another country by officials of that foreign country. In contrast to the universal criminal jurisdiction provided for by the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (the "Torture Convention"), there is no corresponding universal civil jurisdiction. The claimants in Jones sought to establish that the State Immunity Act 1978[UK] should be interpreted, contrary to its ordinary and natural meaning, so as to permit refusal of immunity in respect of torture claims, because such an interpretation was required by s 3 of the Human Rights Act 1998[UK] to give effect to the Art 6 of the ECHR right of access to courts.
That claim and argument was rejected unanimously. State immunity is a procedural matter determining jurisdiction, and does not have substantive content. There is no international consensus recognising universal civil jurisdiction, and there is no such exception in the UN Immunity Convention 2004. And, there is no evidence that States have recognised an international law obligation to exercise universal jurisdiction over alleged breaches of peremptory norms of international law. Therefore, the (assumed) restriction on access to the domestic courts was directed at a legitimate objective and was not disproportionate, and the interpretation sought by the claimants could not prevail.
See also, blog entry for 17 March 2006.
This case concerns the civil jurisdiction of domestic courts to adjudicate on claims in tort for damages for torture inflicted in another country by officials of that foreign country. In contrast to the universal criminal jurisdiction provided for by the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (the "Torture Convention"), there is no corresponding universal civil jurisdiction. The claimants in Jones sought to establish that the State Immunity Act 1978[UK] should be interpreted, contrary to its ordinary and natural meaning, so as to permit refusal of immunity in respect of torture claims, because such an interpretation was required by s 3 of the Human Rights Act 1998[UK] to give effect to the Art 6 of the ECHR right of access to courts.
That claim and argument was rejected unanimously. State immunity is a procedural matter determining jurisdiction, and does not have substantive content. There is no international consensus recognising universal civil jurisdiction, and there is no such exception in the UN Immunity Convention 2004. And, there is no evidence that States have recognised an international law obligation to exercise universal jurisdiction over alleged breaches of peremptory norms of international law. Therefore, the (assumed) restriction on access to the domestic courts was directed at a legitimate objective and was not disproportionate, and the interpretation sought by the claimants could not prevail.
See also, blog entry for 17 March 2006.
Thursday, May 04, 2006
Inchoate offences and the scope of mens rea
We have already noted the Supreme Court’s decision in L v R (see blog for 3 April 2006), in which the mental elements of an attempt to commit an offence that could be committed recklessly were held to include the same recklessness. Yesterday, the House of Lords reached a different conclusion in R v Saik [2006] UKHL 18 (3 May 2006), which concerned the statutory definition of "conspiracy". Both attempts and conspiracies are what is called inchoate offences: they are, in this sense, uncompleted substantive offences.
It is interesting to observe that legislatures can differ on what sort of behaviour, preliminary to the commission of a substantive offence, they consider appropriate to criminalise, and they can also differ on how precisely they wish to indicate the scope of proscribed behaviour.
Under English law, money laundering (the relevant substantive offence in Saik) can be committed knowingly, or by having reasonable grounds to suspect, in relation to the fact that the money or property is the proceeds of criminal conduct. The New Zealand definition of money laundering is broadly similar in these respects; both the Crimes Act 1961 and the Misuse of Drugs Act 1975 contain laundering offences, and the relevant state of mind is knowing, believing, or being reckless as to the money or property being proceeds of a serious offence.
There is, obviously, a difference, in that the English provision encompasses having reasonable grounds to suspect, whereas in New Zealand the scope does not extend beyond recklessness.
The material difference for present purposes is in the definitions of the inchoate offences. The English statutory conspiracy is defined in s 1(1) and (2) of the Criminal Law Act 1977[UK], and, significantly, s 1(2), as interpreted in Saik, requires that, in relation to essential circumstances that need not be known for liability for the full offence, the accused must intend or know of them for liability to arise for the conspiracy. Thus, for conspiring to launder property, where the full offence does not require knowledge that the property is proceeds of criminal conduct (reasonable grounds to suspect being sufficient), the consequence of the Saik interpretation of s 1(2) is that conspiring to launder property requires proof that the accused knew or believed that the property was proceeds of criminal conduct.
In New Zealand, the crime of attempting to commit an offence is defined in s 72 of the Crimes Act 1961, which requires an "intent to commit an offence". In L v R this was interpreted to mean, for attempted sexual violation, intention to penetrate (or, in the peculiar circumstances of that case, an intention that penetration should occur), and recklessness as to whether the victim consented. The policy applied in L has thus, from this point of view, resulted in expansion of the meaning of "intent" in s 72.
In summary, the UK Parliament defined conspiracy narrowly, and the Court declined to interpret the definition in a way that would have extended it, whereas the New Zealand Parliament defined attempt without specifying whether it should be construed widely or narrowly, and the Court chose a wide interpretation.
It is interesting to observe that legislatures can differ on what sort of behaviour, preliminary to the commission of a substantive offence, they consider appropriate to criminalise, and they can also differ on how precisely they wish to indicate the scope of proscribed behaviour.
Under English law, money laundering (the relevant substantive offence in Saik) can be committed knowingly, or by having reasonable grounds to suspect, in relation to the fact that the money or property is the proceeds of criminal conduct. The New Zealand definition of money laundering is broadly similar in these respects; both the Crimes Act 1961 and the Misuse of Drugs Act 1975 contain laundering offences, and the relevant state of mind is knowing, believing, or being reckless as to the money or property being proceeds of a serious offence.
There is, obviously, a difference, in that the English provision encompasses having reasonable grounds to suspect, whereas in New Zealand the scope does not extend beyond recklessness.
The material difference for present purposes is in the definitions of the inchoate offences. The English statutory conspiracy is defined in s 1(1) and (2) of the Criminal Law Act 1977[UK], and, significantly, s 1(2), as interpreted in Saik, requires that, in relation to essential circumstances that need not be known for liability for the full offence, the accused must intend or know of them for liability to arise for the conspiracy. Thus, for conspiring to launder property, where the full offence does not require knowledge that the property is proceeds of criminal conduct (reasonable grounds to suspect being sufficient), the consequence of the Saik interpretation of s 1(2) is that conspiring to launder property requires proof that the accused knew or believed that the property was proceeds of criminal conduct.
In New Zealand, the crime of attempting to commit an offence is defined in s 72 of the Crimes Act 1961, which requires an "intent to commit an offence". In L v R this was interpreted to mean, for attempted sexual violation, intention to penetrate (or, in the peculiar circumstances of that case, an intention that penetration should occur), and recklessness as to whether the victim consented. The policy applied in L has thus, from this point of view, resulted in expansion of the meaning of "intent" in s 72.
In summary, the UK Parliament defined conspiracy narrowly, and the Court declined to interpret the definition in a way that would have extended it, whereas the New Zealand Parliament defined attempt without specifying whether it should be construed widely or narrowly, and the Court chose a wide interpretation.
Wednesday, May 03, 2006
Thou art far more fair than she ...
Is Australian criminal law really fairer than New Zealand’s? In Moloney v New Zealand [2006] FCA 438 (21 April 2006) (blogged here on 1 May 2006), Madgwick J thought it is. It is arguable that his approach to this matter was wrong. He should have used as fundamental a point that he did note, namely that since New Zealand, like Australia, is a party to the International Convention on Civil and Political Rights, and, further to what he noted, that since New Zealand, unlike Australia, has the accused’s right to a fair trial included in a Bill of Rights, courts in New Zealand are unlikely to tolerate an unfair trial.
The question would then have been, would New Zealand judges be likely to interpret their rules of evidence in a way that results in unfairness to the accused?
It is not a matter of comparing the rules in Australia with those in New Zealand, as Madgwick J did, because it is the result of the application of the rules that is critical. The real question in Moloney was, does the right to a fair trial in New Zealand have overriding importance?
I have argued that it does: see "The Accused’s Right to a Fair Trial: Absolute or Limitable?" [2005] New Zealand Law Review 217. I must acknowledge, however, that the mere fact that the eponymous question has to be asked indicates that in New Zealand there has been some doubt over whether the accused’s right to a fair trial overrides other rights and interests. My conclusion in that article was that the majority of senior New Zealand judges appear to accept the absolute view of the accused’s right to a fair trial. Concern over the status of trial fairness in New Zealand should focus on the grounds on which judges disagree over that.
In Moloney, Madgwick J gave two main reasons for concluding that trials of the relevant charges, allegations of historical sexual misconduct going back 22 to 31 years, on balance would be unlikely to be conducted fairly in New Zealand, if fairness is assessed by Australian standards. Each reason has its weaknesses.
The first reason concerned judicial warnings to the jury about the reasons that evidence by complainants about events that are allegedly remembered after so long a time may be unreliable, and reasons why the accused may be disadvantaged in challenging such allegations. In Australia such warnings, in cases of delay of this length, are apparently mandatory. That, at least, was the view of Madgwick J, and we may for present purposes assume that he was correct on this point. In New Zealand they are discretionary. What, then, is the significance of this difference?
As suggested above, the question should have been, would New Zealand judges be likely to decline to warn the jury about those matters in the circumstances of these cases? And, if they did not give the warning, would convictions be likely to be upheld on appeal; that is, would the Court of Appeal recognise that failure to give the warning amounted to a substantial miscarriage of justice?
The current state of development of the law in New Zealand is such that, while we may be reasonably sure that a trial judge would warn the jury, if he did not, we cannot be sure that an appellate court would regard that omission as a substantial miscarriage of justice. The problem of appellate recognition of substantial miscarriage of justice is not confined to New Zealand: the Privy Council not infrequently differs among its members on this. There is, therefore, reason for some unease on this score.
The second reason that Madgwick J gave was that in Australia the charges would be heard at separate trials, because the evidence of each complainant was only relevant to the allegations made by that complainant, whereas it seemed that in New Zealand a court would be likely to regard the evidence of some complainants as corroborative of the evidence of others, so that some joinder of trials may occur. This area of the law of evidence concerns what is usually called "similar fact" evidence. Essentially, where different complainants make similar allegations, one tends to increase the likelihood that another is true, unless there was evidence that they had colluded to concoct falsely similar stories. The proper focus of similar fact evidence, where it is admissible, is on the weight to be given to the evidence of the complainant whose allegations are being decided. The great danger of this evidence is that juries will go straight to a conclusion that the accused is the kind of person who does this sort of thing, so he must be guilty. In other words, the error would be to convict the accused for what is now alleged because of what he is said to have done before, rather than because this complainant is believable.
The law about similar facts has been problematic everywhere. This has often been because its admissibility has been linked to the criterion of whether the probative value of the evidence outweighs its illegitimately prejudicial effect. I have discussed this in "Probative value, illegitimate prejudice and the accused’s right to a fair trial" (2005) 29 Crim LJ 8. In Moloney, Madgwick J considered that in Australia the similar fact evidence would not be admissible. Assuming that to be so, would it be admissible in New Zealand? A leading case on this is R v Holtz. I have discussed this case in Misuse of Drugs, para 306, as follows:
"There could appear to be some withdrawal from the requirement of hallmark or striking similarity in R v Holtz [2003] 1 NZLR 667; (2002) 20 CRNZ 14 (CA). But whether that is so, and if so, whether it is to be taken as a generally applicable modification of the law, may be doubted. The Court observed at para 35 that it is wrong to look for principles of admissibility applicable to all evidence of past conduct in all circumstances. Identity was disputed in relation to some of the allegedly similar facts, and at para 43 the Court merely required a credible strand of circumstantial evidence pointing to the accused as the offender. However, a more rigorous requirement appeared at para 47, where it was stated that the evidence must be truly probative and cogent. In full, this crucial paragraph reads as follows:
"[47] The care with which evidence of similar acts is scrutinised is justified because of the prejudice that inevitably arises from the risk of guilt being improperly inferred from mere propensity or disposition evidenced by previous bad conduct. But, where the evidence is truly probative and cogent, admission is appropriate so long as the circumstances are such that, while allowing the probative value of the evidence to be availed of, the risk of improper use can be avoided by appropriate directions to the jury."
"It should be noted here that the requirement is that the risk of improper use of the evidence can be avoided, not just reduced to a level where it is outweighed by the probative value of the evidence."
If this criterion is applied strictly the "trial according to law" aspect of the right to a fair trial would be protected. Unfortunately, it cannot be said for certain, at present, that the "avoiding" of improper use of the evidence would be required, instead of merely the risk of improper use being "outweighed" by the probative value of the evidence. Again, on this point, one cannot be sure that judges in New Zealand would interpret this rule of evidence in a way that would ensure the dominance of the accused’s right to a fair trial.
The question would then have been, would New Zealand judges be likely to interpret their rules of evidence in a way that results in unfairness to the accused?
It is not a matter of comparing the rules in Australia with those in New Zealand, as Madgwick J did, because it is the result of the application of the rules that is critical. The real question in Moloney was, does the right to a fair trial in New Zealand have overriding importance?
I have argued that it does: see "The Accused’s Right to a Fair Trial: Absolute or Limitable?" [2005] New Zealand Law Review 217. I must acknowledge, however, that the mere fact that the eponymous question has to be asked indicates that in New Zealand there has been some doubt over whether the accused’s right to a fair trial overrides other rights and interests. My conclusion in that article was that the majority of senior New Zealand judges appear to accept the absolute view of the accused’s right to a fair trial. Concern over the status of trial fairness in New Zealand should focus on the grounds on which judges disagree over that.
In Moloney, Madgwick J gave two main reasons for concluding that trials of the relevant charges, allegations of historical sexual misconduct going back 22 to 31 years, on balance would be unlikely to be conducted fairly in New Zealand, if fairness is assessed by Australian standards. Each reason has its weaknesses.
The first reason concerned judicial warnings to the jury about the reasons that evidence by complainants about events that are allegedly remembered after so long a time may be unreliable, and reasons why the accused may be disadvantaged in challenging such allegations. In Australia such warnings, in cases of delay of this length, are apparently mandatory. That, at least, was the view of Madgwick J, and we may for present purposes assume that he was correct on this point. In New Zealand they are discretionary. What, then, is the significance of this difference?
As suggested above, the question should have been, would New Zealand judges be likely to decline to warn the jury about those matters in the circumstances of these cases? And, if they did not give the warning, would convictions be likely to be upheld on appeal; that is, would the Court of Appeal recognise that failure to give the warning amounted to a substantial miscarriage of justice?
The current state of development of the law in New Zealand is such that, while we may be reasonably sure that a trial judge would warn the jury, if he did not, we cannot be sure that an appellate court would regard that omission as a substantial miscarriage of justice. The problem of appellate recognition of substantial miscarriage of justice is not confined to New Zealand: the Privy Council not infrequently differs among its members on this. There is, therefore, reason for some unease on this score.
The second reason that Madgwick J gave was that in Australia the charges would be heard at separate trials, because the evidence of each complainant was only relevant to the allegations made by that complainant, whereas it seemed that in New Zealand a court would be likely to regard the evidence of some complainants as corroborative of the evidence of others, so that some joinder of trials may occur. This area of the law of evidence concerns what is usually called "similar fact" evidence. Essentially, where different complainants make similar allegations, one tends to increase the likelihood that another is true, unless there was evidence that they had colluded to concoct falsely similar stories. The proper focus of similar fact evidence, where it is admissible, is on the weight to be given to the evidence of the complainant whose allegations are being decided. The great danger of this evidence is that juries will go straight to a conclusion that the accused is the kind of person who does this sort of thing, so he must be guilty. In other words, the error would be to convict the accused for what is now alleged because of what he is said to have done before, rather than because this complainant is believable.
The law about similar facts has been problematic everywhere. This has often been because its admissibility has been linked to the criterion of whether the probative value of the evidence outweighs its illegitimately prejudicial effect. I have discussed this in "Probative value, illegitimate prejudice and the accused’s right to a fair trial" (2005) 29 Crim LJ 8. In Moloney, Madgwick J considered that in Australia the similar fact evidence would not be admissible. Assuming that to be so, would it be admissible in New Zealand? A leading case on this is R v Holtz. I have discussed this case in Misuse of Drugs, para 306, as follows:
"There could appear to be some withdrawal from the requirement of hallmark or striking similarity in R v Holtz [2003] 1 NZLR 667; (2002) 20 CRNZ 14 (CA). But whether that is so, and if so, whether it is to be taken as a generally applicable modification of the law, may be doubted. The Court observed at para 35 that it is wrong to look for principles of admissibility applicable to all evidence of past conduct in all circumstances. Identity was disputed in relation to some of the allegedly similar facts, and at para 43 the Court merely required a credible strand of circumstantial evidence pointing to the accused as the offender. However, a more rigorous requirement appeared at para 47, where it was stated that the evidence must be truly probative and cogent. In full, this crucial paragraph reads as follows:
"[47] The care with which evidence of similar acts is scrutinised is justified because of the prejudice that inevitably arises from the risk of guilt being improperly inferred from mere propensity or disposition evidenced by previous bad conduct. But, where the evidence is truly probative and cogent, admission is appropriate so long as the circumstances are such that, while allowing the probative value of the evidence to be availed of, the risk of improper use can be avoided by appropriate directions to the jury."
"It should be noted here that the requirement is that the risk of improper use of the evidence can be avoided, not just reduced to a level where it is outweighed by the probative value of the evidence."
If this criterion is applied strictly the "trial according to law" aspect of the right to a fair trial would be protected. Unfortunately, it cannot be said for certain, at present, that the "avoiding" of improper use of the evidence would be required, instead of merely the risk of improper use being "outweighed" by the probative value of the evidence. Again, on this point, one cannot be sure that judges in New Zealand would interpret this rule of evidence in a way that would ensure the dominance of the accused’s right to a fair trial.
Monday, May 01, 2006
A difference of reasonable minds
Fairness can be a very difficult matter to agree on, as is demonstrated in cases where judges have differed among themselves: see, for illustrations, blog entries for 10 October 2004, 10 July 2005, 28 August 2005, 9 December 2005 and 7 March 2006. Applications to extradite suspects to other jurisdictions where fairness of trial may be questioned give rise to the issue of what is an acceptable risk of unfair trial in the foreign court. In Bagdanavicius [2005] UKHL 38 (blogged 26 May 2005) it was held that extradition must be refused if there are "substantial grounds" for believing there to be "a real risk" of mistreatment in the foreign jurisdiction.
In Moloney v New Zealand [2006] FCA 438 (21 April 2006) the Federal Court of Australia (Madgwick J) held (para 120) that the burden, on appeal, was on the defendants (those resisting extradition) to show there would probably be an injustice in extradition. This might (it is difficult to say, as the point is not discussed by Madgwick J) be an easier standard to satisfy than that required by the House of Lords in Bagdanavicius.
That aside, Moloney points to some areas in New Zealand criminal law that are not self-evidently fair. Diplomatically, Madgwick J acknowledges (para 108) that "reasonable minds may and do differ on what constitute the incidents of a fair trial", so that, in effect, this is a difference between friends. No insult being intended, the Federal Court held that, judged as it must be by the standards of Australian law (Bannister v New Zealand (1999) 86 FCR 417), trial of the charges in New Zealand would probably be unfair.
Moloney holds that New Zealand criminal law falls short of the Australian standard of fairness in the following respects:
(1) In cases of historical allegations, in Australia judges must warn the jury about the dangers inherent in accepting the evidence of complainants (this is called the direction in Longman v R (1989) 168 CLR 79 (HCA)), whereas the New Zealand Court of Appeal has rejected the mandatory requirement of a warning, preferring to leave the need for a warning as a matter for the judge to decide: R v M 13/11/95, CA187/95. This was held to be the factor that made the difference between Australian and New Zealand law sufficiently serious to prevent extradition. Australian courts regard the Longman direction as being "a vital requirement for a just trial in a case of long delay" (para 109). But there were other factors too.
(2) Whereas in Australian law it is clear that the charges would have to be heard separately, because similar fact evidence would be inadmissible, this was not so clear in New Zealand law (citing R v Holtz [2003] 1 NZLR 667, 675 (CA)). While this uncertainty made this factor less than decisive, it was, nevertheless, "a circumstance exacerbating the disabilities" caused to the defence and arising from the delay (paras 117, 123).
(3) Australia has rejected the use of representative charges (S v R (1989) 168 CLR 266 and KBT v R (1997) 191 CLR 417 (HCA)), whereas they are acceptable in New Zealand: para 110, quoting R v Accused [1993] 1 NZLR 385, 389 (CA). The objections to representative charges concern vagueness as to when the offence for which the accused is convicted occurred, and what facts were accepted as proof of it.
There was, in summary, between Australia and New Zealand "a fundamental difference as to the content of an effective right to a fair hearing, such right being recognised … as a basic human right" (para 113).
Apologists for New Zealand law might argue that, vague though the law may be, everything would turn out alright in the end, as appellate courts can take an overview and correct unfairness. Such wooliness is, indeed, behind the development of the law to this unsatisfactory state. Disturbingly, New Zealand has been led into this difference of "reasonable minds" by some of our foremost judges: participants in New Zealand Court of Appeal decisions cited in Moloney include Cooke P (now, Lord Cooke), Gault P, Richardson J (subsequently P), Casey, Hardie Boys, and Keith JJ. In this area, rules are preferable to discretions, and precision must be pushed as far as it will go.
Having said that, it should be acknowledged that a face-saving appeal against Madgwick J’s decision in Moloney could result in a different view of New Zealand’s approach to fairness. It could be held that Madgwick J was wrong to consider that in Australia a warning was inevitable in the circumstances of the case(s), citing Doggett v R (2001) 182 ALR 1 (HCA), where McHugh J dissented in holding that no warning was required in that case, as an illustration of how the need for a warning can be controversial. That would make the position on warnings as uncertain in Australia as it seems to be in New Zealand. Further, while the risk of evidence of other complainants being admissible on a similar fact basis seems to be high in New Zealand, it cannot be discounted in Australia either, because the merits of the case (correctly recognised as not relevant to the extradition decision) may give other complaints high probative value as corroboration. Such corroboration would, in turn, reduce the need for a warning in Australian law. The result could be that New Zealand’s law on fairness is not significantly different from Australia’s.
That, however, could be said to mean that the law on fair trials is equally unsatisfactory in each country.
In Moloney v New Zealand [2006] FCA 438 (21 April 2006) the Federal Court of Australia (Madgwick J) held (para 120) that the burden, on appeal, was on the defendants (those resisting extradition) to show there would probably be an injustice in extradition. This might (it is difficult to say, as the point is not discussed by Madgwick J) be an easier standard to satisfy than that required by the House of Lords in Bagdanavicius.
That aside, Moloney points to some areas in New Zealand criminal law that are not self-evidently fair. Diplomatically, Madgwick J acknowledges (para 108) that "reasonable minds may and do differ on what constitute the incidents of a fair trial", so that, in effect, this is a difference between friends. No insult being intended, the Federal Court held that, judged as it must be by the standards of Australian law (Bannister v New Zealand (1999) 86 FCR 417), trial of the charges in New Zealand would probably be unfair.
Moloney holds that New Zealand criminal law falls short of the Australian standard of fairness in the following respects:
(1) In cases of historical allegations, in Australia judges must warn the jury about the dangers inherent in accepting the evidence of complainants (this is called the direction in Longman v R (1989) 168 CLR 79 (HCA)), whereas the New Zealand Court of Appeal has rejected the mandatory requirement of a warning, preferring to leave the need for a warning as a matter for the judge to decide: R v M 13/11/95, CA187/95. This was held to be the factor that made the difference between Australian and New Zealand law sufficiently serious to prevent extradition. Australian courts regard the Longman direction as being "a vital requirement for a just trial in a case of long delay" (para 109). But there were other factors too.
(2) Whereas in Australian law it is clear that the charges would have to be heard separately, because similar fact evidence would be inadmissible, this was not so clear in New Zealand law (citing R v Holtz [2003] 1 NZLR 667, 675 (CA)). While this uncertainty made this factor less than decisive, it was, nevertheless, "a circumstance exacerbating the disabilities" caused to the defence and arising from the delay (paras 117, 123).
(3) Australia has rejected the use of representative charges (S v R (1989) 168 CLR 266 and KBT v R (1997) 191 CLR 417 (HCA)), whereas they are acceptable in New Zealand: para 110, quoting R v Accused [1993] 1 NZLR 385, 389 (CA). The objections to representative charges concern vagueness as to when the offence for which the accused is convicted occurred, and what facts were accepted as proof of it.
There was, in summary, between Australia and New Zealand "a fundamental difference as to the content of an effective right to a fair hearing, such right being recognised … as a basic human right" (para 113).
Apologists for New Zealand law might argue that, vague though the law may be, everything would turn out alright in the end, as appellate courts can take an overview and correct unfairness. Such wooliness is, indeed, behind the development of the law to this unsatisfactory state. Disturbingly, New Zealand has been led into this difference of "reasonable minds" by some of our foremost judges: participants in New Zealand Court of Appeal decisions cited in Moloney include Cooke P (now, Lord Cooke), Gault P, Richardson J (subsequently P), Casey, Hardie Boys, and Keith JJ. In this area, rules are preferable to discretions, and precision must be pushed as far as it will go.
Having said that, it should be acknowledged that a face-saving appeal against Madgwick J’s decision in Moloney could result in a different view of New Zealand’s approach to fairness. It could be held that Madgwick J was wrong to consider that in Australia a warning was inevitable in the circumstances of the case(s), citing Doggett v R (2001) 182 ALR 1 (HCA), where McHugh J dissented in holding that no warning was required in that case, as an illustration of how the need for a warning can be controversial. That would make the position on warnings as uncertain in Australia as it seems to be in New Zealand. Further, while the risk of evidence of other complainants being admissible on a similar fact basis seems to be high in New Zealand, it cannot be discounted in Australia either, because the merits of the case (correctly recognised as not relevant to the extradition decision) may give other complaints high probative value as corroboration. Such corroboration would, in turn, reduce the need for a warning in Australian law. The result could be that New Zealand’s law on fairness is not significantly different from Australia’s.
That, however, could be said to mean that the law on fair trials is equally unsatisfactory in each country.
Wednesday, April 26, 2006
Public policy and degrees of misconduct
Public policy exclusion of evidence is sometimes still spoken of by courts as if it was a means of protecting the accused’s right to a fair trial. This was done yesterday by the Privy Council in Williams v R (Jamaica) [2006] UKPC 21 (25 April 2006). A statement had been obtained from the accused when he was aged 12, in breach of the procedures laid down for the interviewing of young suspects (para 27). The Board concluded, at para 28:
"…the circumstances of the appellant's detention and of the taking of the statement were such as to create a significant amount of unfairness to him. Their Lordships cannot conclude that in all the circumstances of the case it was fair to admit the statement."
While the Board was not expressly referring to trial fairness, the expressions "unfairness to him" and it not being "fair to admit" the statement do suggest that trial fairness is the object of concern. Another point in this extract that is misleading is the expression "a significant amount of unfairness".
My view is that in these situations the courts are not excluding the evidence for reasons that have anything to do with trial fairness. The probative value of the evidence is not relevant to the decision on admissibility in these cases (see, for example, my blog entry for 4 April 2006 concerning "cogency"). It is not the accused’s guilt that matters, it is the objectionable way in which the evidence was obtained that is critical. This is why the discretion, in this area, is best called the public policy discretion. It is true that, historically, this discretion evolved from – and remains part of - the court’s inherent power to prevent an abuse of process. In turn, that power has been referred to as giving rise to a discretion to exclude evidence in the interests of "fairness", or, sometimes, "fairness to the accused". But these are not references to trial fairness.
One of the reasons for making this distinction between the public policy exclusion of evidence, and the exclusion of evidence to ensure trial fairness, is to preserve the concept of the absolute nature of the accused’s right to a fair trial. In the above quotation from para 28 of Williams, the expression "a significant amount of unfairness" could, wrongly, suggest that fairness of trial exists in gradations, and that some forms of trial unfairness are acceptable. I have given examples of misuse of this terminology in "The Duty to Prevent an Abuse of Process by Staying Criminal Proceedings" in Essays on Criminal Law – A Tribute to Professor Gerald Orchard (Brookers Ltd, 2004), 133, 146.
What, it is respectfully suggested, the Privy Council should have said in Williams, is that the breaches of the Directions on the conduct of interviews of young persons that occurred in this case were sufficiently serious that admission of the statement obtained thereby would be an abuse of process. The evidence was excluded to prevent the administration of justice being brought into disrepute, as would occur if the courts appeared to endorse the police misconduct. In that context it is appropriate, if one must use the "fairness" terminology, to speak of degrees of unfairness, because official misconduct comes in degrees.
There may be cases where trial fairness could be relevant to the admission into evidence of a statement that had been obtained wrongfully. But it must be remembered that, at the stage when the ruling on admissibility has to be made, the effects of admission on the defence will not be known: the Judge will not know whether the defendant intends to give or call evidence, let alone what any such evidence would be. There is a difference between using fairness as grounds for excluding evidence, and using fairness in considering, as an appellate court, whether to apply the proviso. It is the appellate court that is best placed to evaluate the effect of an erroneous admission of evidence, and, when the public policy discretion has been exercised in favour of admitting the evidence, it may be only retrospectively that the trial can be said to have been unfair.
"…the circumstances of the appellant's detention and of the taking of the statement were such as to create a significant amount of unfairness to him. Their Lordships cannot conclude that in all the circumstances of the case it was fair to admit the statement."
While the Board was not expressly referring to trial fairness, the expressions "unfairness to him" and it not being "fair to admit" the statement do suggest that trial fairness is the object of concern. Another point in this extract that is misleading is the expression "a significant amount of unfairness".
My view is that in these situations the courts are not excluding the evidence for reasons that have anything to do with trial fairness. The probative value of the evidence is not relevant to the decision on admissibility in these cases (see, for example, my blog entry for 4 April 2006 concerning "cogency"). It is not the accused’s guilt that matters, it is the objectionable way in which the evidence was obtained that is critical. This is why the discretion, in this area, is best called the public policy discretion. It is true that, historically, this discretion evolved from – and remains part of - the court’s inherent power to prevent an abuse of process. In turn, that power has been referred to as giving rise to a discretion to exclude evidence in the interests of "fairness", or, sometimes, "fairness to the accused". But these are not references to trial fairness.
One of the reasons for making this distinction between the public policy exclusion of evidence, and the exclusion of evidence to ensure trial fairness, is to preserve the concept of the absolute nature of the accused’s right to a fair trial. In the above quotation from para 28 of Williams, the expression "a significant amount of unfairness" could, wrongly, suggest that fairness of trial exists in gradations, and that some forms of trial unfairness are acceptable. I have given examples of misuse of this terminology in "The Duty to Prevent an Abuse of Process by Staying Criminal Proceedings" in Essays on Criminal Law – A Tribute to Professor Gerald Orchard (Brookers Ltd, 2004), 133, 146.
What, it is respectfully suggested, the Privy Council should have said in Williams, is that the breaches of the Directions on the conduct of interviews of young persons that occurred in this case were sufficiently serious that admission of the statement obtained thereby would be an abuse of process. The evidence was excluded to prevent the administration of justice being brought into disrepute, as would occur if the courts appeared to endorse the police misconduct. In that context it is appropriate, if one must use the "fairness" terminology, to speak of degrees of unfairness, because official misconduct comes in degrees.
There may be cases where trial fairness could be relevant to the admission into evidence of a statement that had been obtained wrongfully. But it must be remembered that, at the stage when the ruling on admissibility has to be made, the effects of admission on the defence will not be known: the Judge will not know whether the defendant intends to give or call evidence, let alone what any such evidence would be. There is a difference between using fairness as grounds for excluding evidence, and using fairness in considering, as an appellate court, whether to apply the proviso. It is the appellate court that is best placed to evaluate the effect of an erroneous admission of evidence, and, when the public policy discretion has been exercised in favour of admitting the evidence, it may be only retrospectively that the trial can be said to have been unfair.
Seeing and believing
Eyewitness identification evidence may need to be treated with some circumspection, and juries are usually given a direction on the special need for caution before relying on such evidence. In some jurisdictions, these warnings are required by statute, although, as is the case in New Zealand, the points required to be covered are not spelt out in great detail. The common law antecedent of these directions is known as the Turnbull direction, originating in the English Court of Appeal’s decision R v Turnbull [1977] QB 224.
In Edwards v R (Jamaica) [2006] UKPC 23 (25 April 2006) the Privy Council indicated that there are some practices that should not be permitted at trials where identification is an issue and the prosecution relies on evidence of an eyewitness to the offence. These are:
(1) The eyewitness should not be permitted to identify the accused in the dock as the offender. The prosecution should, in general, adopt other means for establishing that the accused is the person who was arrested (para 22):
"… it is only in the most exceptional circumstances that any form of dock identification is permissible: cf the discussion in the Scottish devolution appeal Holland v HM Advocate [2005] UKPC D1, 2005 SLT 563. It may be borne in mind that this was far from being a first identification and it can fairly be said that the dock identification may have had little impact on the minds of the jury. It is, however, an undesirable practice in general and other means should be adopted of establishing that the defendant in the dock is the man who was arrested for the offence charged."
(2) A police officer should not be permitted to give in evidence his opinion on why an ID parade was not considered to be necessary (para 23).
(3) The police should not give in evidence the fact that a warrant was obtained for the arrest of the accused, or of the information on which the police acted, as this is hearsay and potentially highly prejudicial (para 23).
(4) The police should not give in evidence the fact that a potential witness was unwilling to come forward (para 23).
(5) The police should avoid confronting the eyewitness with the suspect (para 25).
There is, at this point – para 25 – a possibly unintentional suggestion by the Board that hearsay evidence might be given to establish the link between the person described to the police as the offender, and the suspect:
"The arresting officer would have been quite capable of establishing that the appellant was the person pointed out to him by Bailey [the eyewitness] near the Mango Tree Bar, so it was unnecessary to ask Bailey to come to the station to confirm that."
This, however, should be read as referring to "establishing" in an investigatory, pre-trial, sense, and not as "establishing" in evidence at trial.
In this case, the eyewitness to the killing had been standing next to the victim, and the bullet that killed the victim had passed through the eyewitness. The offender had been trying to rob the eyewitness, who suddenly and unsuccessfully tried to grab the gun. The eyewitness was hospitalised for 4 weeks, and it was 2 months after the killing before he saw the accused near the same bar. He claimed that the accused was the offender. In his first description of the offender, given 5 days after the incident while he was in hospital, the eyewitness failed to mention a prominent birthmark on the accused’s face, he was unable to say what sort of trousers the offender was wearing, and he claimed that the time he had to observe the offender was a couple of minutes although it must have been shorter than that. The circumstances in which the offender was observed were good: inside a bar in the morning with good lighting.
The Privy Council was concerned that there could have been an erroneous association of ideas arising from the location of the offence and the subsequent identification being similar, and that the judge had not adequately warned the jury of the dangers in accepting the evidence. The conviction was therefore unsafe.
In New Zealand, the Evidence Bill 2006, clause 122, almost exactly repeats the current provision on the need for judicial warning: Crimes Act 1961, s 344D. The slight difference is that instead of requiring the judge to "include the reason for the warning", the Bill requires the judge to "warn the jury that a mistaken identification can result in a serious miscarriage of justice". The need for a warning arises "In a criminal proceeding tried with a jury in which the case against the defendant depends wholly or substantially on the correctness of 1 or more visual or voice identifications of the defendant or any other person …". The inclusion of voice identification is new to the Bill.
The Bill contains other provisions relating to the admissibility of visual identification evidence. It is important to note that here the concern is with admissibility, not with the way admissible evidence is treated at trial. These provisions, for visual identification, are in clause 41, and they concern the implications of whether or not a formal identification procedure was used at the investigatory stage. The criterion for admissibility is proof, on the balance of probabilities, that the evidence is reliable. The Bill does not say to what extent, if any, this reliability should be assessed by reference to the other evidence in the case. It seems plain that the other evidence should not be included in the assessment of the reliability of the visual identification evidence, and that the focus should be on the circumstances in which the identification was made.
In Edwards v R (Jamaica) [2006] UKPC 23 (25 April 2006) the Privy Council indicated that there are some practices that should not be permitted at trials where identification is an issue and the prosecution relies on evidence of an eyewitness to the offence. These are:
(1) The eyewitness should not be permitted to identify the accused in the dock as the offender. The prosecution should, in general, adopt other means for establishing that the accused is the person who was arrested (para 22):
"… it is only in the most exceptional circumstances that any form of dock identification is permissible: cf the discussion in the Scottish devolution appeal Holland v HM Advocate [2005] UKPC D1, 2005 SLT 563. It may be borne in mind that this was far from being a first identification and it can fairly be said that the dock identification may have had little impact on the minds of the jury. It is, however, an undesirable practice in general and other means should be adopted of establishing that the defendant in the dock is the man who was arrested for the offence charged."
(2) A police officer should not be permitted to give in evidence his opinion on why an ID parade was not considered to be necessary (para 23).
(3) The police should not give in evidence the fact that a warrant was obtained for the arrest of the accused, or of the information on which the police acted, as this is hearsay and potentially highly prejudicial (para 23).
(4) The police should not give in evidence the fact that a potential witness was unwilling to come forward (para 23).
(5) The police should avoid confronting the eyewitness with the suspect (para 25).
There is, at this point – para 25 – a possibly unintentional suggestion by the Board that hearsay evidence might be given to establish the link between the person described to the police as the offender, and the suspect:
"The arresting officer would have been quite capable of establishing that the appellant was the person pointed out to him by Bailey [the eyewitness] near the Mango Tree Bar, so it was unnecessary to ask Bailey to come to the station to confirm that."
This, however, should be read as referring to "establishing" in an investigatory, pre-trial, sense, and not as "establishing" in evidence at trial.
In this case, the eyewitness to the killing had been standing next to the victim, and the bullet that killed the victim had passed through the eyewitness. The offender had been trying to rob the eyewitness, who suddenly and unsuccessfully tried to grab the gun. The eyewitness was hospitalised for 4 weeks, and it was 2 months after the killing before he saw the accused near the same bar. He claimed that the accused was the offender. In his first description of the offender, given 5 days after the incident while he was in hospital, the eyewitness failed to mention a prominent birthmark on the accused’s face, he was unable to say what sort of trousers the offender was wearing, and he claimed that the time he had to observe the offender was a couple of minutes although it must have been shorter than that. The circumstances in which the offender was observed were good: inside a bar in the morning with good lighting.
The Privy Council was concerned that there could have been an erroneous association of ideas arising from the location of the offence and the subsequent identification being similar, and that the judge had not adequately warned the jury of the dangers in accepting the evidence. The conviction was therefore unsafe.
In New Zealand, the Evidence Bill 2006, clause 122, almost exactly repeats the current provision on the need for judicial warning: Crimes Act 1961, s 344D. The slight difference is that instead of requiring the judge to "include the reason for the warning", the Bill requires the judge to "warn the jury that a mistaken identification can result in a serious miscarriage of justice". The need for a warning arises "In a criminal proceeding tried with a jury in which the case against the defendant depends wholly or substantially on the correctness of 1 or more visual or voice identifications of the defendant or any other person …". The inclusion of voice identification is new to the Bill.
The Bill contains other provisions relating to the admissibility of visual identification evidence. It is important to note that here the concern is with admissibility, not with the way admissible evidence is treated at trial. These provisions, for visual identification, are in clause 41, and they concern the implications of whether or not a formal identification procedure was used at the investigatory stage. The criterion for admissibility is proof, on the balance of probabilities, that the evidence is reliable. The Bill does not say to what extent, if any, this reliability should be assessed by reference to the other evidence in the case. It seems plain that the other evidence should not be included in the assessment of the reliability of the visual identification evidence, and that the focus should be on the circumstances in which the identification was made.
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