Exclusion of improperly obtained evidence

Users of my method for analysing discretionary exclusion of improperly obtained evidence will be interested to see that in R v Horsfall [2008] NZCA 449 (30 October 2008) the Court ruled inadmissible evidence obtained through an improperly conducted search where the offending had attracted a sentence of over 4 years imprisonment. I have included this in my draft paper.

I could do it in my sleep

Does it matter that the judge sleeps during significant parts of a trial? What if there is a jury, can the judge sleep longer? What if the judge is alert for most of the time, and only misses some bits of evidence, through sleep or conscious inattention?

In Cesan v R [2008] HCA 52 (6 November 2008) the High Court of Australia considered two appeals against convictions that had resulted at a trial by jury where the judge's sleeping had distracted the jury. French CJ summarised the facts (94):

"In this case the facts ... indicated a substantial failure of the judicial process. The trial judge was asleep on a number of occasions on the 11 days when evidence was being given. He slept at least once on most of those days and on some days on two or three occasions. Some of the sleep episodes, possibly between two and five, lasted from 10 to 15 minutes. Most lasted between two and 10 minutes. The judge's sleeping was accompanied by heavy breathing on a number of occasions and he snored when Cesan was giving his evidence. This was disruptive and caused Cesan to look around at the trial judge. The judge also slept through parts of [the other accused] Mas Rivadavia's evidence. The jury was distracted by the judge's sleep episodes and some of the jury members found his behaviour amusing and even emulated it."

It was sufficient for French CJ that there was an appearance of injustice. This made the likelihood of convictions irrelevant (97). The flaw in the proceedings had been fundamental and incurable. It was a miscarriage of justice by failure of the judicial process, constituted by the judge's substantial failure to maintain the necessary supervision and control of the trial (96). Therefore the proviso could not be applied.

That straightforward reasoning, which separates procedural fairness from the question of the likelihood of the convictions being justified on the evidence, was not adopted by the other members of the Court.

A joint judgment was delivered by Hayne, Crennan and Kiefel JJ, with whom Gummow J and Heydon J agreed. These reasons stress (104, 110) that established principles are being relied on. This, in effect, means that the obscure approach laid down in Weiss v R (blogged here 16 January 2006) is going to make this difficult.

And it does. The joint judgment reasons that because the jury were distracted it is not possible to conclude from the written record of the trial that guilt was proved beyond reasonable doubt (127). That non sequitur, repeated at 130, emerges from an attempt to apply the Weiss approach of perceiving the likelihood of guilt as it appears from the record of evidence but also taking into account the verdicts.

It is difficult to see why the verdicts should be of assistance to an appellate court in the task of reviewing the adequacy of the evidence, given that the jury were misled in some way – usually by a misdirection on the law, or by inadmissible evidence, or as here by judicial slumber.

It would have been preferable for Gummow J, instead of simply agreeing (107) with the joint judgment's approach to the proviso, to have taken the line he took in AK v Western Australia (blogged here 27 March 2008), reasoning that this miscarriage was substantial and there was no need to ask if the accuseds were guilty. The absence of reasons in the judge alone trial in AK is not all that far removed from the absence of juror attention to the evidence here.

In Cesan the majority took one approach to the proviso, namely that it cannot be applied where the court cannot conclude that the convictions were supported by the evidence (127). The other generally accepted reason for not applying it – procedural unfairness at trial regardless of the likelihood of guilt – provides a more straightforward reason, as French CJ demonstrated, for ordering a retrial of each appellant.

Overkill

By laying too many charges the prosecution may give the accused a get-out-of-jail-free card.

This happened in R v JF [2008] SCC 60 (31 October 2008).

There was one death in this case, but the accused faced two charges of manslaughter. The jury convicted on the more serious, and acquitted on the lesser; this led the SCC to quash the conviction because the verdicts were inconsistent. The accused was left with two acquittals.

The accused's foster child had died as a result of injuries sustained at the hands of the accused's wife, who pleaded guilty to manslaughter. The two charges brought against the accused were

1. Manslaughter by criminal negligence;
   
2. Manslaughter by failure to provide the necessaries of life.
   

Deschamps J was the sole dissenting judge. She was able to perceive a distinction between the elements of the charges that provided a basis for the different verdicts. This distinction is the kind of thing that (in my view) you can persuade yourself you can see if you don't look directly at it, but as soon as you do it seems insubstantial. The jury may have had a reasonable doubt on the second charge, she reasoned, because they did not accept the Crown had proved an element peculiar to it, namely that the accused's failure had the effect of endangering V's life or of causing permanent endangerment to his health.

Deschamps J's judgment illustrates how a complicated explanation is unlikely to be convincing. Look at paras 73 and 74. Given that the jury concluded that the Crown had not proved that the accused's failure to provide the necessaries of life had endangered V's life, or caused or likely caused his health to be endangered permanently, how could the jury then conclude that on manslaughter by criminal negligence his marked and substantial departure from what a reasonable parent would do in the circumstances caused V's death?

On the first charge, the jury found (and correctly so in Deschamps J's opinion) that the accused should have been alert to the risk to V's safety.

Fish J delivered the judgment of himself, McLachlin CJ, Binnie, Abella, Charron and Rothstein JJ. The verdicts were inconsistent because each charge required proof that the accused had failed in his duty to protect V. The real distinction between the charges was, as Fish J said at 11, that in the present context the criminal negligence charge requires a marked and substantial departure from the conduct of a reasonably prudent parent, whereas the other charge simply requires a marked departure.

The second charge had the lesser degree of fault, and acquittal on it meant that the jury could not have found proved the higher degree of fault in the first charge. The jury should have considered the first charge only if it found the second proved.

Juries may well be more pragmatic that the law permits. There is a niggling possibility here that the jury simply thought that there should be one conviction, which should be for the more serious charge.

The Crown should have put its case to the jury in the way indicated by Fish J: first consider the charge of manslaughter by failure to provide the necessaries of life. If the verdict on that is guilty, then consider the charge of manslaughter by criminal negligence. If the verdict on the failure to provide the necessaries charge is not guilty, then the verdict on the criminal negligence charge must also be not guilty. Since it did not do this, the Crown lost on both.

The law appears to be different in New Zealand, where the charges would both require the same "major departure" from the standard of care expected of a reasonable person: s 150A, 160(2)(a) and (b) Crimes Act 1961 and R v Powell [2002] 1 NZLR 666 (CA), so they could not be put in the way indicated in R v JF. In such a case it would be necessary to make clear what the difference between the charges was alleged to be, otherwise only one could be left to the jury.

Reducing convictions

If juror ignorance about the meaning of "beyond reasonable doubt" had the effect of causing too many acquittals, you can be sure something would be done to improve judicial directions on the point.

The New South Wales Bureau of Crime Statistics and Research, in Bulletin No 119 (September 2008) "Juror Understanding of Judicial Instructions in Criminal Trials" by Lily Trimboli, concludes on this topic:

"The problems in juror understanding ... do not all stem from the way judges give instructions. It is assumed at common law that the phrase 'beyond reasonable doubt' requires no explanation and is readily understood by most ordinary people. Appeal courts have, for this reason, repeatedly warned trial court judges (see Green v The Queen (1971) 126 CLR 28, 32-33) not to attempt to clarify the phrase when explaining its importance to juries. The present study shows, however, that there is considerable divergence among jurors about the meaning of 'beyond reasonable doubt'. Around half (55.4%) of the jurors surveyed, believed that the phrase 'beyond reasonable doubt' means 'sure [that] the person is guilty'; 22.9 per cent believed that the phrase means 'almost sure' the person is guilty; 11.6 per cent believed that it meant 'very likely' the person is guilty; and 10.1 per cent believed it meant 'pretty likely' the person is guilty. This is quite a wide spread of opinion and it suggests that some clarification of the threshold for convicting a person would be of assistance to juries. While statutory clarification of the phrase 'beyond reasonable doubt' may be controversial, one relatively simple change that could be made to improve current practice would be to provide written materials to the jury to assist in their deliberations."

A perfectly sensible suggestion, but what should a written instruction say?

In discussing R v Wanhalla (25 August 2006) I noted the Court of Appeal's reluctance to mathematise the concept of proof beyond reasonable doubt by expressing it as a probability of guilt. I suppose that people vary in their understanding of "sure", "almost sure" and "very likely". The survey does not seem to have attempted to establish a way of ranking those words against a common reference, other than the phrase beyond reasonable doubt itself. If the jurors in the survey had been asked to express "sure", "almost sure", "very likely" and "pretty likely" as probabilities a recommendation could have been made as to the usefulness of directing juries in terms of probabilities.

The question in the survey was put as "In your view, does the phrase 'beyond reasonable doubt' mean pretty likely the person is guilty/very likely the person is guilty/almost sure the person is guilty/sure the person is guilty?"

What is clear is that there are likely to be too many convictions because of juror misunderstanding of the standard of proof. Progress in rectifying this seems to be painfully slow; such dragging of the feet by officialdom (I use this awful word to avoid using another awful word) would not occur if there were too many acquittals.

See also on this, Jeremy Gans ....

Over-zealous handcuffing

One of the limitations of only looking at the decisions of the senior appellate courts is that sometimes first instance decisions that perfectly illustrate significant principles are missed.

Thanks to this excellent Canadian blog our attention is directed to this decision of the Provincial Court of Alberta: R v Ogertschnig[2008] ABPC 293 (16 October 2008).

On a charge of refusing to supply a sample of breath, the judge found (14):

"I am satisfied on balance that the accused had been fully cooperative with Officer Renaud and had unhesitatingly agreed to provide a roadside sample. I find that when he exited his vehicle to do so, he was thereupon immediately handcuffed by Officer Renaud and pushed towards the police vehicle, approximately fifty feet away, and shoved into the back while handcuffed. During the process of placing him in the back of the police vehicle, the brim of the accused's hat was pushed down low onto his forehead, thereby impairing his vision other than in a downward direction."

Three independent reasons supported dismissal of this charge: insufficient grounds for requiring the breath sample, reasonable excuse for refusal to provide the sample arising from the improper use of handcuffs, and – of particular interest here – a breach of s 7 of the Charter, concerning liberty and security of the person, which constituted grounds for excluding the evidence of the defendant's refusal to supply the sample of breath.

Here there was a causal and temporal connection between the unlawful arrest and the refusal to supply the sample. It is clear that if, on different facts, there had been no causal connection but only a temporal one, the evidence could still have been excluded: R v Wittwer (blogged here 6 June 2008). An illustration would be where the improperly handcuffed driver continued his cooperation with the procedures, as occurred in the New Zealand case Police v Chadwick [2002] DCR 880. The handcuffing did not cause the evidence to be obtained, but there was a temporal and contextual connection.

I have discussed Wittwer and Chadwick in Misuse of Drugs at para 1300, as follows:

"The exclusion of evidence that was obtained improperly is now governed by s 30 Evidence Act 2006. Other provisions of the Act are concerned with exclusion of unreliable statements: s 28, and exclusion of statements influenced by oppression: s 29. Those provisions operate when there is a causal connection between impropriety, or a source of unreliability, or a source of influence of oppression, and the obtaining of the challenged evidence. Outside of such causal nexus, the public policy discretion is likely to remain: s 11 Evidence Act 2006. Occasions where there is a nexus, other than of a causal nature, are where there is a temporal or contextual association between an impropriety and the obtaining of the evidence, as illustrated in R v Wittwer ... . In Police v Chadwick [2002] DCR 880 the charge of driving with excess blood alcohol was dismissed because of improper use of handcuffs after the defendant had failed a breath test, but before the blood sample was taken; here the impropriety did not cause the obtaining of the blood test result, as the defendant was "co-operating to the full" (para 15), but it was sufficiently serious – illegal, unreasonable, and in breach of s 23(5) New Zealand Bill of Rights Act 1990 - for the evidence to be excluded and the charge to be dismissed on policy grounds. This conclusion was reached upon consideration of Shaheed[[2002] 2 NZLR 377; (2002) 19 CRNZ 165]... . If Chadwick had been decided after the commencement of the Evidence Act 2006 it would still be a case of contextual impropriety, not within the scope of the Act, where the public policy discretion involved a balancing exercise that is essentially the same as that which is provided for in s 30."

Ogertschnig illustrates how lawful resistance to improperly imposed restraint can result in exclusion of evidence, and Chadwick illustrates the common law exclusion of evidence tainted by impropriety, a remedy that should continue to exist notwithstanding the enactment of the discretion to exclude evidence where there is a causal connection between the impropriety and the obtaining of the evidence.

On mixed statements

The Supreme Court of Canada has simplified the direction that judges are to give juries on mixed statements. These are statements by an accused person that are partly incriminatory and partly exculpatory. Now, juries are not to be told that the exculpatory parts might be given less weight because the accused was not under oath when they were stated or because they were not subject to cross-examination: R v Rojas [2008] SCC 56 (24 October 2008).

This is a rejection of the English approach to directing juries on mixed statements, which was established in R. v. Duncan (1981) 73 Cr. App. R. 359 and applied in R. v. Aziz [1995] 2 Cr. App. R. 478. Under this approach, it is proper for the judge to tell the jury that exculpatory parts of a mixed statement do not necessarily carry the same persuasive weight as incriminatory parts.

The cases suggest that an approach like that in Rojas has been approved in New Zealand: R v Tomkins [1981] 2 NZLR 170 (CA), R v Tozer [2002] 1 NZLR 193, (2001) 19 CRNZ 269 (CA), and – to pick an Australian example cited in Tozer – in Western Australia: Middleton v R (1998) 19 WAR 179 (CCA WA). Those cases support the proposition that it would be wrong to tell a jury that the exculpatory parts of a mixed statement may have less weight because they were not given under oath, the jury should be told to consider the whole of the statement and to give such weight to such portions of it as it thinks proper.

It has, however, been by no means unusual to hear judges suggest to juries that there are various circumstances that indicate that the exculpatory parts of mixed statements should be given little weight, while adding that these are matters for the jurors to decide for themselves. Indeed, judges could hardly sum up prosecution cases without referring to such circumstances. But the point is that under Rojas the weight differential is not a matter of law.

The wider context of all the circumstances of the case led the Court to conclude, in Rojas, that the misdirection was "more unfortunate than fatal" (41). This was particularly so because the judge had explained that a denial may raise a reasonable doubt as to guilt, that an accused was entitled to the benefit of the doubt, and the judge had left the assessment of the statements entirely to the jury.

On the other hand, in a case decided the same day, the misdirection on mixed statements was fatal: R v Illes [2008] SCC 57 (24 October 2008). In contrast to Rojas, this was a majority decision. Here the jury may have thought that it was a matter of law that incriminating parts of mixed statements carry more weight than do exculpatory parts. The proviso could not be applied because the jury deliberations had been lengthy, the judge had given the misdirection after the jury had indicated they were at an impasse, and the mixed statements were critical evidence. The majority concluded that the jury would not inevitably have reached the same verdict if they had been properly directed.

Plainly, where the mixed statements do not form a critical part of the prosecution case, there will be significant evidence to suggest that their exculpatory parts deserve little weight; in such circumstances it would, as Illes illustrates, be harmless error for the jury to think that this reduced weight applied as a matter of law.

The common law rules as to how an accused's statements to the police should be treated in evidence developed as an exception to the rule against hearsay. As an exception, their contents were admissible as proof of their truth, and this was, over time, recognised as applying to the exculpatory parts as well as to the incriminatory parts. In New Zealand the relevant law has become statutory: Evidence Act 2006. This has not necessarily made the position simpler.

Section 27 provides that the hearsay rules do not apply to evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant. It is not clear that the prosecution offers the exculpatory parts of a mixed statement, although the argument would be that these were offered as evidence of the defendant's lies. Section 124 provides for lies directions, but it will not always be the case that the defence would want this sort of direction given. Section 21 provides that if a defendant in a criminal proceeding does not give evidence he may not offer his own hearsay statement in evidence. Are the exculpatory parts of his mixed statement hearsay? Not if they are offered by the prosecution (s 27). If the prosecution omits reference to them, the defence may elicit them in cross-examination, and this amounts to "offering" them as evidence (s 4 definition of "offer evidence"), but because of s 21 the defence may only do this if the defendant is going to give evidence. Yet the defence may not have decided at that point whether the defendant will give evidence. Could the exculpatory parts of a mixed statement be admissible as ordinary hearsay evidence, under s 18, as s 18 is not subject to s 21? The problem with that is that there is a high reliability threshold for the admission of hearsay evidence, namely that the circumstances relating to the statement provide reasonable assurance that the statement is reliable: s 18(1)(a). Exculpatory statements are hardly likely to carry that assurance, otherwise the defendant would not be on trial.

I suspect that "a statement" in s 27 means the whole statement that was made, not just the incriminatory parts. Section 6(c) requires fairness, and the admissibility of exculpatory parts of mixed statements arose at common law out of considerations of fairness. Section 21 should be read restrictively, so that the exculpatory parts of the non-hearsay statement are offered not by the defendant but by the prosecution. There is no provision in the Act specifically addressing the nature of an appropriate direction that the jury should be given about the weight of exculpatory parts, but s 122 does permit the topic to be addressed and no particular form of words is required. The question whether to follow the Supreme Court of Canada's approach in Rojas will need to be decided, but it could be argued that s 122 pre-empts the courts' power to develop particular rules.

Fantasy and invention

In discussing recent invention (see blog for 8 July 2008 concerning R v Barlien, and the further comment on 19 July 2008), I suggested that an "invention" could be an innocent invention and not just a dishonest one. The point has been addressed briefly in R v Stewart [2008] NZCA 429 (22 October 2008).

Here there were several themes discernable in the cross-examination of the complainant. One, that in the Court's view did not necessarily amount to an allegation that she had recently invented her evidence, was the suggestion that she had been infatuated with the accused and had fantasised about these purely imaginary events. The Court did not refer to another possible difficulty with using an allegation of fantasising as the basis for admitting a prior consistent statement, namely the likelihood that such a prior statement would also be the product of inflamed imagination.

The Court's indication that, on its own, an allegation that a complaint was the result of fantasising need not be an allegation of recent invention, seems to suggest that any innocent misstatement of the facts would not count as an "invention" for the purposes of s 35(2) of the Evidence Act 2008. Personally, I don't see why not, as that provision refers both to use of prior consistent statements to respond to challenges to the witness's veracity and to the witness's accuracy. Inaccuracy can occur without untruthfulness.

The infatuation suggestion in Stewart had, however, to be seen in the context of the other themes to the cross-examination in this case. These were allegations of deliberate falsehood and motivation to obtain financial advantage. In the particular context the Court held that it was not possible to separate the allegations into those which were said by the defence to be motivated only by fantasy from those that were said to be motivated by dishonesty. Accordingly, the defence position was that the complaints were recent inventions, with the consequence that, subject to s 8 of the Evidence Act 2006 (the general discretion to exclude unfairly prejudicial evidence), evidence of the complainant's prior consistent statements was admissible.

The Court referred at 85 to R v Barlien and followed it on the point that the prior consistent statements were evidence of their truth.

Our fair-minded feminine side

Barristers, being fair-minded observers of the judiciary, are constantly amazed at how fair-minded judges are. (I smirk, but then I often smirk – it doesn't mean anything.) No doubt judges have acquired this fair-mindedness in the course of their practice at the bar before they were appointed – elevated can hardly be the right word – to the bench. No doubt barristers acquire their own fair-mindedness by learning from the example of judges. Aside from the chicken and egg question that comes to mind, we are justified in rejoicing at this perpetual cycle of fair-mindedness.

Occasionally the complaints of clients make it necessary for counsel to submit, reluctantly but courageously, that a judge has been biased, and so an examination of the concept of fair-mindedness is required. The House of Lords, back from their surprisingly long summer break, have addressed this in Helow v Secretary of State for the Home Department [2008] UKHL 62 (22 October 2008).

They don't say so, but in describing the qualities of fair-mindedness the Law Lords are portraying themselves. There is, as modesty demands, a gentle tone of mockery in Lord Hope's opening remarks:

"The fair-minded and informed observer is a relative newcomer among the select group of personalities who inhabit our legal village and are available to be called upon when a problem arises that needs to be solved objectively. Like the reasonable man whose attributes have been explored so often in the context of the law of negligence, the fair-minded observer is a creature of fiction. Gender-neutral (as this is a case where the complainer and the person complained about are both women, I shall avoid using the word "he"), she has attributes which many of us might struggle to attain to."

Too modest, and a signal we are in for some sarcasm on the sexual-politics front. So,

"2. The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53 [I interpose here to note that Kirby J in that passage is absurdly conscientious in avoiding use of the male pronoun]. Her approach must not be confused with that of the person who has brought the complaint. The "real possibility" test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially."

A further quality of this creature of fiction is that he is "informed":

"3. Then there is the attribute that the observer is "informed". It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment."

Some caution is needed when a judge has been associated with a political cause, as Lord Walker said (26), adding that the judicial oath is not a panacea (27). Lord Cullen noted that some faith could be placed in the judge's training and experience (30) – just as I thought. Lord Mance referred briefly to a principle of automatic disqualification (40) that could arise in circumstances that didn't apply here. He also observed that cogent evidence is needed to show judicial bias (57) but he also described the judicial oath as a symbol, not a guarantee, of impartiality. As to whether a judge's failure to disclose an interest is necessarily an indication of lack of fair-mindedness, things get a bit circular when Lord Mance points out (58) that failure to disclose might indicate real fair-mindedness because the judge was so fair minded that it wouldn't have occurred to him that he might not be fair-minded.

Well it's all marvellous stuff, and very reassuring.

Too much information

Anyone who thinks criminal cases are really just civil cases but with a higher standard of proof as to the ultimate issue will not be surprised by the growth in complexity of pre-trial procedures. Those relating to disclosure of information by the prosecution to the defence received some consideration by the Privy Council in McDonald v HM Advocate [2008] UKPC 46 (16 October 2008).

The need to ensure that an accused person receives a fair trial seems to be taken to mean that, as far as is possible, the "parties" (to use an expression from the civil side of the law) should be put on an equal footing. The assumption is that the accused will have to prove his innocence, regardless of what might be said about the standard of proof.

Fraying of the golden thread has led to development of a new "golden rule", stated by Lord Bingham in R v H and C [2004] 2 AC 134 and referred to by Lord Rodger in McDonald at para 50:

"...Put shortly, the Crown must disclose any statement or other material of which it is aware and which either materially weakens the Crown case or materially strengthens the defence case...".

The application of this rule requires development as cases arise. Reference was made in McDonald to the current preparation of a legislated code concerning disclosure in Scotland.

In New Zealand we have new legislation that has not yet come into effect: the Criminal Disclosure Act 2008. This will impose obligations that are much wider than those of the golden rule. [Update: the Act commenced on 29 June 2009.]

In McDonald Lord Rodger was particularly concerned with the problems that will arise when large volumes of information come under consideration for possible disclosure. He pointed to the different functions of the prosecution and the defence in an adversarial system, 60, and observed that there is no way of avoiding reliance on officials carrying out their duties conscientiously. He considered that where the defence makes only a general request for disclosure it would need to be able to satisfy a court that the material it sought would have a legitimate bearing on an issue before disclosure would be ordered (76).

The narrow rule/wide request/narrow enforceability approach is not taken in the New Zealand legislation, which has more of a wide rule/wide request/fairly wide enforceability structure.

Recently there was some public concern over the extent to which the defence could obtain knowledge about people who were not involved in a particular case although their personal information had been gained in the course of police inquiries. That concern is heightened where accused persons represent themselves and have access to that sort of information. Perhaps that incident involved an over-eagerness to be candid with the defence, although it could also indicate an unwillingness by the police to devote time to the sifting of information to isolate that which might assist the defence. The Act is limited to "relevant" information (s 13(2)(a)), and this would not authorise the police to simply dump as much information as possible on the defence.

Our ethos is different from yours

In a decision that very nearly passed me by – because of its civil nature – the Supreme Court of Canada has held that the civil standard of proof is fixed, does not change according to the seriousness of the issue or the improbability of the allegation, and a flexible approach to it is not in law appropriate : FH v McDougall [2008] SCC 53 (2 October 2008).

This last point contrasts with the New Zealand Supreme Court's majority decision in Z v Dental Complaints Assessment Committee (blogged 25 July 2008). A fundamental difference in ethos is apparent: the SCC does not hesitate in this unanimous judgment to acknowledge that a change in the law as it has hitherto been applied is appropriate. The NZSC majority are more conservative, declaring that a flexible approach to the civil standard of proof has worked up to now, so there is no reason to change it. So although the standard in NZ is fixed, it is - strange to say - applied flexibly.

It will be recalled that the civil standard of proof is relevant to criminal law because most preliminary factual issues are determined according to that standard.

The SCC does not refer to the NZSC decision, and the NZSC majority in Z barely refer to the Canadian law (but to the extent that they do, at 117, they mention the flexible approach in professional disciplinary proceedings that has now been overruled).

In FH v McDougall the Court declares (at 40) the following propositions to be wrong:

"(1) The criminal standard of proof applies in civil cases depending upon the seriousness of the allegation;

"(2) An intermediate standard of proof between the civil standard and the criminal standard commensurate with the occasion applies to civil cases;

"(3) No heightened standard of proof applies in civil cases, but the evidence must be scrutinized with greater care where the allegation is serious;

"(4) No heightened standard of proof applies in civil cases, but evidence must be clear, convincing and cogent; and

"(5) No heightened standard of proof applies in civil cases, but the more improbable the event, the stronger the evidence is needed to meet the balance of probabilities test."

No, the only standard of proof in civil cases is the balance of probabilities, there is no intermediate standard applicable on some occasions. The evidence must always be scrutinised with great care. To meet the standard of proof evidence must always be clear, convincing and cogent. And the probability or improbability of the event does not affect the strength of the evidence needed, as a matter of law, although the inherent probabilities will be taken into account by the fact finder.

I suppose that the conflict can be resolved by reading the majority in Z as holding that the flexibility they found in the civil standard of proof is not "flexibility as a matter of law" but rather it is flexibility in the sense that the inherent probabilities, as a matter of practical experience, will always be taken into account by the fact finder. This reading has support at para 105 of Z, but the joint judgment has chosen unfortunate terminology in its insistence on "a flexibly applied civil standard of proof". There are clear indications that the majority in Z intended to support the proposition - and this is put as a rule (para 112) - that serious consequences justify a requirement for evidence of heightened cogency, a proposition rejected in FH v McDougall.

Elias CJ addressed (in dissenting) the different approaches in Z as follows (28):

"It is often said that more grave allegations are less likely to be true and require more in the way of evidence before the trier of fact will be satisfied [footnote: Hornal v Neuberger Products Ltd [1957] 1 QB 247 at p 266 per Lord Morris; Budget Rent ACar Ltd v Auckland Regional Authority [1985] 2 NZLR 414 at p 425 (CA) per Somers J.] I have some doubts as to the extent to which experience bears out the proposition, but in any event it is clear that its application turns on human experience and the particular context, as Lord Nicholls made clear in Re H. Statements such as these have however caused confusion when applied, not to the inherent probabilities which any decision-maker necessarily weighs, but to the standard of proof [footnote: As described by Lord Hoffmann in Re B at para [12]]. The confusion has led to judicial statements which suggest that the standard of proof is itself "flexible", an unfortunate and inaccurate notion. Nor do I think matters are improved by the suggestion that it is not the standard but its application that is "flexible". "Flexibility" is a term I think best avoided in the context of proof, despite its impressive pedigree [footnote: Lord Bingham in B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340 at pp 353 – 354 (HL); Lord Scarman in R v Secretary of State for the Home Department, ex pKhawaja [1984] 1 AC 74 at p 113; Lord Nicholls in Re H at p 586]. Proof is made out whenever a decision-maker is carried beyond indecision to the point of acceptance either that a fact is more probable than not (if the standard is on the balance of probabilities) or that he has no reasonable doubt about it (if the standard is proof beyond reasonable doubt) [footnote: Miller v Minister of Pensions [1947] 2 All ER 372 at pp 373 – 374 (KB) per Denning J; Rejfek vMcElroy (1965) 112 CLR 517 at para [11]]."

It is interesting to see the senior appellate courts dealing with the same issues within a brief time span. No doubt the High Court of Australia will chip in soon.