“the kingdom would come to confusion”

The interpretation of legislation can, on rare occasions, be assisted by reference to information about the creation of that legislation. Even so, there is reluctance to have resort to such material, as can be seen from R v JBT [2009] UKHL 20 (29 April 2009).

Here there was statutory ambiguity. Until the ambiguity was pointed out, almost everyone had thought the age of criminal responsibility had been made 10 years or more, by s 34 of the Crime and Disorder Act 1998[UK]:

"Abolition of rebuttable presumption that a child is doli incapax

The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is hereby abolished."

Very good. Bring them within the loving embrace of the youth justice system.

But did abolition of the presumption of incapacity mean that the defence was also abolished: couldn't the child adduce evidence to prove "I was too immature to understand that what I did was seriously wrong"?

Lord Phillips felt that the statute did not provide sufficient assistance to determine this issue, so he canvassed the history of the common law from Hale (1778 ed) through the legislation and the progress of the current provision through Parliament.

The other Law Lords concurred, but adding that they wouldn't have referred to Hansard. Lord Phillips had found Hansard helpful, for an amendment which addressed the issue unambiguously had been withdrawn in the Lords once and later, when reintroduced, had been defeated. That amendment, moved by Lord Goddard QC, was based on the assumption that the Bill in question was designed to abolish doli incapax completely (both as rule and presumption).

Lord Rodger did not explain how he would have reached the same result as did Lord Phillips without reference to Hansard, but he agreed that the passages referred to put the position beyond doubt. Lord Carswell would have got there by "construction of the section and taking account of the mischief and of the consequences of the legislation" (39), but he also felt that this was a legitimate case in which to take into account the Parliamentary materials, recognising the change in approach to such that was effected in Pepper v Hart [1993] AC 593. Lord Brown agreed that the reference to Lord Goddard QC's proposed amendment was helpful, and he mentioned the use of reference to unsuccessful amendments by Lord Nicholls in R (Jackson) v Attorney General [2006] 1 AC 262, 292. Lord Mance agreed with everyone.

In New Zealand there have been proposals to formalise reference to Parliamentary materials as aids to interpretation of legislation, but these have not been included in the current Interpretation Act 1999. The governing provision is s 5:

"Ascertaining meaning of legislation

(1) The meaning of an enactment must be ascertained from its text and in the light of its purpose.

(2) The matters that may be considered in ascertaining the meaning of an enactment include the indications provided in the enactment.

(3) Examples of those indications are preambles, the analysis, a table of contents, headings to Parts and sections, marginal notes, diagrams, graphics, examples and explanatory material, and the organisation and format of the enactment."

Nevertheless, judges do refer to Parliamentary materials: eg R v Law (2002) 19 CRNZ 500 (HC) at para 24, R v Oran (2003) 20 CRNZ 87 (CA) at para 18.

Cut-throat issues

In Jones v R [2009] HCA 17 (29 April 2009) some interesting issues were mentioned, but they did not need to be decided. They concern the use by one accused of evidence of the propensity of a co-accused.

In this case the proposed evidence was inadmissible as hearsay, and for that reason – together with an error at trial on another point being insignificant – the appeal was dismissed.

Hayne J, in a judgment concurring with that given by the other members of the Court, highlighted the issues for future consideration (37); in summary these are:

• Is it necessary that the co-accused has put his character in issue before the accused can adduce evidence of his propensity?
  

• How to manage the risk of the trial being diverted into collateral issues about the nature, extent and probative value of the evidence of those propensities.

• Should the rule in R v Pfennig (1995) 182 CLR 461; [1995] HCA 7 apply, or would it lead to diversion of the kind just mentioned?
  

• When should a ruling that such propensity evidence is admissible be followed by an order for separate trials?
   

The Pfennig point concerns whether propensity evidence should be governed by the same admissibility requirements as similar fact evidence, especially the need for "striking similarity" and the improbability of an innocent explanation for the apparent link it is sought to establish.

The recent reforms of the law of evidence in New Zealand have provided a framework for addressing these issues. Section 42
Evidence Act 2006 deals with propensity evidence about co-defendants. When will the judge permit the evidence under s 42(1)(b)? Presumably some regard would be had to matters such as those specified in s 43(3) which apply when the prosecution seeks to adduce propensity evidence. The danger of prejudice to the co-defendant has to be considered under s 43(4), and a similar consideration should apply under s 42(1)(b), although in any event the general discretion to exclude unfairly prejudicial evidence pursuant to s 8 would apply to s 42(1)(b).

There is no need for the co-accused to have put his character in issue before the accused may adduce evidence of his propensity. Collateral issues would have to be managed under the requirements of relevance (s 7), prejudice and fairness. There is no requirement of "striking similarity", merely a "tendency to show" a propensity (s 40(1)), and for the common law, see R v Holtz [2003] 1 NZLR 667; (2002) 20 CRNZ 14 (CA). As there is nothing to exclude it, the hearsay rule applies to propensity evidence.

Search incidental to arrest

An interesting aspect of Arizona v Gant [2009] USSC, No 07-542, (21 April 2009) is the omission of any reference to Herring v United States [2009] USSC, No 07-513, (14 January 2009), noted here 15 January 2009.

Gant rejects a broad reading of the Supreme Court's decision in New York v. Belton, 453 U. S. 454 (1981) which had applied an assumption that things in the vehicle were accessible to the person arrested.

The topic is the police power to search a vehicle incident to the arrest of an occupant. Gant holds that the vehicle may be searched when it is reasonable to believe that evidence of the offence for which the person was arrested might be found in the vehicle. It also holds that, since the power of search incident to arrest has the purpose of preventing the arrested person accessing weapons or destroying evidence, the search may only be of areas within the arrested person's immediate control. When the arrested person has been secured and cannot access the interior of the vehicle, a vehicle search incident to arrest is not authorised.

In Gant the search was unreasonable. Mr Gant had been arrested for driving with a suspended licence (or, as they spell it, license) and had been handcuffed and placed in the back of a patrol car. His car was then searched and a bag of cocaine was found in the pocket of a jacket which was on the back seat. The US Supreme Court held 5 – 4 that the Arizona Supreme Court had correctly held that the search was unjustified. That Court had held that the trial court should have suppressed the evidence.

In Herring, the Supreme Court held that the fact that a search was unreasonable does not mean that the exclusionary rule necessarily applies: exclusion depends on whether the efficacy of deterrence of official misconduct outweighs the substantial cost of letting guilty defendants go free. This issue was not argued on this appeal.

One can readily imagine that evidence of a really serious crime might be found as a result of an unreasonable search of a vehicle following the arrest of an occupant for a relatively minor matter. Automatic exclusion would be absurd in those circumstances. The issue of admissibility is distinct from the issue that was argued here – the constitutionality of the search.

Reviewing or revising

There can be a fine line between evaluating facts and making up new ones.

In Carroll v R [2009] HCA 13 (21 April 2009) the CCA NSW majority had held that a sentence imposed for manslaughter was "manifestly inadequate". That ground for allowing the prosecutor's appeal amounted to an assertion that the sentence was unreasonable or plainly unjust. It is one of the recognised ways of challenging the exercise of a discretion.

Sentencing remarks have to be carefully cast, lest they stray beyond the offending that has been proved or acknowledged by plea.

Here the CCA majority had latched on to an objective aspect of the offending that was never in dispute - that the offender's violence was not justified - and used that to ignore a matter that was relevant: that there had been some provocation from the victim.

The second error by the CCA majority was to exaggerate what had been admitted. The unlawful act necessary for manslaughter – here a head-butt to the victim's face – was acknowledged by the guilty plea to be an unlawful and dangerous act that carried with it an appreciable risk of serious injury. But the CCA majority stretched this to "severe injury was clearly foreseeable and death at least a possibility", which was not acknowledged. All the offender had admitted by pleading guilty was that his act had carried an appreciable risk of serious injury to the victim.

Back then, goes this case, to the CCA for proper consideration of the prosecutor's appeal.

Private garbage?

Do the police act improperly if they search, without warrant, the contents of a rubbish bag left on a property by the fence line for uplifting by the official garbage collectors? This was the issue in R v Patrick [2009] SCC 17 (9 April 2009).

The police action involved a trespass: the act of reaching into the air space of the property occupied by the appellant, and uplifting the bag, which had been left on a stand in an opening or indentation in the fence at the boundary.

In the bag was evidence of ecstasy manufacturing, and the appellant was consequently convicted of unlawfully producing, possessing and trafficking in that substance.

There had been six such searches, on separate days, of the appellant's rubbish bags, and information obtained was used in support of an application for a warrant to search the address.

For evidence of serious offending to be excluded on grounds of unreasonable search it is necessary that it was obtained by means that were seriously improper. That is, exclusion of the evidence must not be a disproportionate response to the impropriety. On that basis the evidence here was admissible. Arguing otherwise requires asserting a serious impropriety, which in turn requires asserting breach of a significant privacy interest.

Abella J came closest to recognising a significant privacy interest. She delivered a judgment concurring with that of the other judges (delivered by Binnie J, appropriately enough as a cruel punster might observe), but reached that conclusion – that there was no impropriety – on the basis that the police had, before they searched the rubbish bags, reasonable suspicion that the appellant had been offending in this way. Such a threshold of suspicion was necessary, she held, because of the appellant's privacy interest which was "diminished ... not unlike the reduced expectation at border crossings" (para 90).

That, I suggest, is unsatisfactory, because it creates uncertainty over when a search warrant is needed. Border crossings are different, because submission to search is required.

The joint judgment gets to grips with analysis of privacy expectation, applying R. v. Tessling, 2004 SCC 67 (CanLII), 2004 SCC 67, 2004 SCC 67 (CanLII), [2004] 3 S.C.R. 432. There are three types of privacy interest: personal, territorial, and informational. This case involved assertion of territorial and informational privacy interests. Here, the interests were appropriately analysed as being informational. Issues were whether the appellant had a direct interest in the information and a subjective expectation of privacy in it; then, if he did, was his expectation reasonable in all the circumstances?

Here the conclusion was that the appellant had abandoned any reasonable expectation of privacy: he had done all he needed to in order to commit the bags to the municipal collection system. It would have been different (ie not unequivocally abandoned) if he had not placed the bags within reach of the collectors.

Accordingly, the appeal was dismissed. Only one, of all the 11 judges who considered this case, concluded that the evidence should have been excluded. Conrad JA emphasised the territorial privacy aspect and would not have permitted the totality of the circumstances test to diminish that, and also reasoned that people who leave garbage for collection expect it to be made anonymous by being mixed with other people's garbage.

Interesting issues were discussed, as is reflected by the participation of five interveners in this case.

What if the police had obtained the bags from the official collectors immediately after the bags had been lawfully uplifted? The availability of alternative lawful means of obtaining the evidence can weigh in favour of increasing the impropriety (as the police are expected to behave lawfully). But, arguably, the ready availability of lawful means should make the actual impropriety less, on a sort of "where's the real harm?" rationale.

Extended interrogations and voluntariness

Awful legislative drafting caused a 5 – 4 split in the United States Supreme Court in Corley v United States [2009] No 07-10441, 6 April 2009.

The peculiarity of the legislation makes the case of little interest outside the USA but the difference between the majority (delivered by Souter J, joined by Stevens, Kennedy, Ginsburg and Breyer JJ) and the minority (delivered by Alito J, joined by Roberts CJ, Scalia and Thomas JJ) judgments reflects differing approaches to the significance of the context of a subsection.

Before looking at the details, I can summarise the broad position of the majority as being that the subsection (c) could not be read down to accommodate the wider meaning to be given to subsection (a). There was no legislative suggestion that (a) had to be the dominant provision, and in any event they dealt with different topics.

The case is about whether delay in bringing the accused before a court meant that his confession was inadmissible even though it was voluntarily made.

The first part of the legislation, 18 USC §3501(a), provides:

"In any criminal prosecution brought by the United States or by the District of Columbia, a confession, as defined in subsection (e) hereof, shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances."

Note that this does not refer to the other subsections in §3501. Also, it only deals with voluntariness.

The minority treat this as the dominant provision, so that delay does not matter if the confession is voluntary.

The part of the legislation dealing with delay is §3501(c):

"In any criminal prosecution by the United States or by the District of Columbia, a confession made or given by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law-enforcement officer or law-enforcement agency, shall not be inadmissible solely because of delay in bringing such person before a magistrate judge or other officer empowered to commit persons charged with offenses against the laws of the United States or of the District of Columbia if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following his arrest or other detention: Provided, That the time limitation contained in this subsection shall not apply in any case in which the delay in bringing such person before such magistrate judge or other officer beyond such six-hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate judge or other officer."

Note that this is a rule drafted in the negative, when it is, if read with the proviso, more sensible as a positive rule of exclusion. In effect it means a statement made after six hours of arrest or detention is inadmissible, provided that a longer time may not render the confession inadmissible if it was reasonable in the light of travel practicalities. That is how the majority interpreted it.

The minority reasoned that the admission of confessions made within six hours did not justify the implication that those made after longer delay were to be excluded.

The majority held that the minority's reading rendered subsection (c) redundant, or, as it said, "nonsensical and superfluous". The interpretative canon is that

" '[a] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant . . . .' " Hibbs v. Winn, 542 U. S. 88, 101 (2004) (quoting 2A N. Singer, Statutes and Statutory Construction §46.06, pp.181–186 (rev. 6th ed. 2000))."

The majority pointed out that the minority were not reading the section as a whole, and to say that (a) is clear on its own proves nothing. The minority treated subsection as if it said "a confession will not be treated as involuntary because of delay if ...", whereas the word is inadmissible, not involuntary. Voluntariness and admissibility are not synonymous and both concepts are used in subsection (3); their different usage is not to be treated as simply a mistake in draftsmanship. They are different under the McNabb-Mallory rule at common law, which Congress is presumed to have been aware of:
Cannon v. University of Chicago, 441 U. S. 677, 699 (1979).

The majority reasoned that many evidential rules would be redundant if the only criterion for admissibility was voluntariness (the reduction ad absurdum argument), and that the legislative history supported its interpretation. The mischief of subsection (3) is interrogations of unlimited duration:

"No one with any smattering of the history of 20th-century dictatorships needs a lecture on the subject, and we understand the need even within our own system to take care against going too far. "[C]ustodial police interrogation, by its very nature, isolates and pressures the individual," Dickerson, 530 U. S., at 435, and there is mounting empirical evidence that these pressures can induce a frighteningly high percentage of people to confess to crimes they never committed, see, e.g., Drizin & Leo, The Problem of False Confessions in the Post-DNA World, 82 N. C. L. Rev. 891, 906–907 (2004).

"Justice Frankfurter's point in McNabb is as fresh as ever: "The history of liberty has largely been the history of observance of procedural safeguards." 318 U. S., at 347. McNabb-Mallory is one of them, and neither the text nor the history of §3501 makes out a case that Congress meant to do away with it."

So, illustrated here are various approaches to statutory interpretation: reading a provision in context, avoiding redundancy, reference to legislative intent, avoidance of absurdity. Another point was that established approaches should not be departed from, as here where the rule that relevant evidence is admissible (Rule 402, Federal Rules of Evidence) has been understood to be subject to exclusionary rules.

Jury selection

Just a glance at Rivera v Illinois [2009] USSC No 07-9995 (31 March 2009) will get you thinking about whether there should be peremptory challenges to potential jurors.

There is huge variety in the jury selection procedures that jury trial jurisdictions have developed. Peremptory challenges are no longer allowed in England and Wales. Where such challenges are permitted, their number varies. In the USA there are measures to prevent peremptory challenges being exercised on racial or sexist grounds. That requires the judge to determine whether a peremptory challenge should be permitted.

In Rivera the judge wrongly refused to allow a peremptory challenge. The trial proceeded with that juror knowing she was not wanted by the accused. She became the foreman (foreperson) of the jury. The Supreme Court unanimously held that the error did not raise due process issues, as there was no risk of bias.

Perhaps the Court had to come to that conclusion, because to reverse the error here would have the effect of discouraging judges from ever exercising the control over the use of peremptory challenges that was designed to overcome racial or sexist discrimination in jury selection.

Be that as it may, Rivera illustrates the complications that can arise from sensitivity to the motives for which peremptory challenges may be exercised.

How big should juries be? How can it be ensured they are not biased? What sort of inquiry should be permitted into the competence of potential jurors? These issues go to the fundamentals of the jury trial process: the need for the facts at issue in a trial to be determined impartially.

Youth justice procedures in Canada

A Supreme Court of Canada case, abundant in citations of authors and cases, and with 12 counsel appearing, deals with aspects of youth justice: R v SJ L-G [2009] SCC 14 (27 March 2009).

The case establishes that when young persons are jointly charged with adults, young persons are nevertheless tried in the youth court, as there is a statutory separation of trial systems. Whereas the purpose of the adult courts is to emphasise the need for punishment, youth courts favour rehabilitation, reintegration and fair and proportionate accountability.

Further, there is no constitutional right to a preliminary hearing, which is only a screening mechanism. A preliminary hearing is distinct from discovery, and absence of a preliminary hearing does not impair the right to discovery.

The case is largely an exercise in statutory interpretation, so is not of great interest in jurisdictions where legislation differs.

Duties, errors and complaints

For discussion of counsel's duties in relation to defences that have no real prospect of success, see Knowles v Mirzayance [2009] USSC No 07-1315 (24 March 2009).

Points of general interest mentioned here are:

• There is no requirement that a defence has to be run if all that can be said for it is that there is "nothing to lose" in running it.
  
• In alleging deficient representation by counsel, an appellant must show both deficient performance by counsel, and prejudice (ie a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different).
  
• Deficient performance requires that the appellant show that counsel's representation fell below an objective standard of reasonableness.
  
• Counsel's conduct was virtually unchallengeable where he had made a decision on an informed basis after thorough investigation of law and facts relevant to plausible options.
  
• There is no prevailing professional norm that counsel must assert the only defence available, even one almost certain to lose.
  

And another decision of the United States Supreme Court is of general interest for its terminology concerning inappropriate defence tactics: Puckett v United States [2009] USSC No 07-9712 (25 March 2009):

• Sandbagging: a defendant's conduct in remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favour. Cf. Wainwright v. Sykes, 433 U. S. 72, 89 (1977); see also United States v. Vonn, 535 U. S. 55, 72 (2002).
  
• Gaming the system: instead of pointing out an error in a timely way, "wait[ing] to see if the sentence later str[ikes] him as satisfactory," Vonn, 535 U. S., at 73, and then seeking a second bite at the apple by raising the claim.
  

And a phrase which is probably new to many people: "hornbook law", used here in the sentence "But it is hornbook law that misrepresentation requires an intent at the time of contracting not to perform." The idea is that this is the sort of law that is hallowed.

In Puckett, it was conceded that a plea bargain had been broken by the prosecution, but the Court found that in the circumstances this did not invalidate the plea of guilty and that there was no prejudice to the appellant as it was he would "likely would not have" (as Americans say) obtained the benefits that the parties had agreed to. He was seeking to use his guilty plea as a sign of contrition, but he had subsequently reoffended so the plea could hardly be said to have come from contrition. Plain error review requires, as held in United States v. Olano, 507 U. S. 725 (1993), (1) an error that has not been waived; (2) the error must be clear or obvious, (3) the error must have affected the appellant's substantial rights – usually in that it affected the result of the proceeding; (4) and, if those requirements are met, a remedy may be given if the error has seriously affected the fairness, integrity or public reputation of judicial proceedings.

But to begin with, the error must be complained of at the earliest opportunity:

""anyone familiar with the work of courts understands that errors are a constant in the trial process, that most do not much matter, and that a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal." United States v. Padilla, 415 F. 3d 211, 224 (CA1 2005) (en banc) (Boudin, C. J., concurring)."

Just leave it to the Crown

The Supreme Court of New Zealand has decided the jury vetting case (see blogs for 14 April 2008 and 29 July 2008): Gordon-Smith v R [2009] NZSC 20 (23 March 2009).

The majority (McGrath J dissenting) upheld the Court of Appeal majority decision:

"22. ... the Crown should disclose any previous convictions of a potential juror known to it, if the previous conviction gives rise to a real risk that the juror might be prejudiced against the accused or in favour of the Crown. Disclosure should not otherwise be made. By this means the interests of accused persons are reconciled with the legitimate privacy and security concerns of jurors. The non-disclosure of a previous conviction which does not give rise to a real risk of prejudice cannot be said to jeopardise the accused's right to a fair trial."

McGrath J's dissent, echoing the position taken by Robertson J in the Court of Appeal, led him to conclude:

"87. ... the Crown has to make disclosure within a reasonable time prior to trial of all information concerning convictions of those on the panel whenever that information is in the Crown's possession and a juror with a prior conviction is not to be challenged by the Crown. The ... Crown must similarly disclose other information it receives from the police which may indicate a juror is possibly biased."

The dissent reasoned that, since the accused's right to a fair trial is absolute (84, citing R v Condon [2007] 1 NZLR 300 (SC), at para 77), and as there is no need to supplement the extensive legislative provisions recently introduced to protect jurors' privacy interests, and as opinions may vary on the significance of previous convictions in relation to potential juror bias (82), and as a well-informed observer would have reasonable grounds for apprehending that a jury may not be impartial when selected in the context of an imbalance of information as between Crown and defence, all information available to the prosecutor should be shared with the defence (86, 87). McGrath J would also have required Crown challenges to be exercised in a principled way in accordance with instructions that would need to be promulgated.

The majority downplayed the risk of unfairness, calling it "entirely speculative" (17). The recent legislation bolstering jurors' privacy interests was taken to be a lead the Court should follow (19), and

"20. With these points in mind we do not consider it is necessary or desirable to go as far as Robertson J and require all information to be made available. That would unreasonably impact on jurors' legitimate concerns for their privacy and security, and for no sufficient reason. ... ."

The majority would not require disclosure of any information other than convictions.

In other words, the Crown can decide when a previous conviction gives rise to a real risk of bias such that the defence would wish to challenge the juror.

Many readers of this decision will be sceptical of the majority judgment. Sarcastic readers (for alas, some there will be) will think the Crown may as well exercise all the defence challenges.