Weighing: fact or law?

Where a judge has to balance one consideration against another, is the determination of the weight to be given to each consideration a question of fact or of law?

Yesterday the United Kingdom Supreme Court held that weight is a question of fact: Secretary of State for the Home Department v AP [2010] UKSC 24 (16 June 2010), at para 12:

"The weight to be given to a relevant consideration is, of course, always a question of fact and entirely a matter for the decision-maker – subject only to a challenge for irrationality which neither has nor could have been advanced here. All this is trite law and indeed the contrary was not argued before us."

The context here was whether the conditions of a control order made under the Prevention of Terrorism Act 2005[UK] breached article 5 of the European Convention on Human Rights, the right to liberty. The Court held that restrictions on liberty that might otherwise have been justified might be rendered unjustifiable when a breach of the right to respect for private and family life (article 8) is taken into account. Because article 8 is relevant it is capable of tipping the balance.

That sort of balancing has wider application than just control orders. Bail conditions must be reasonable. Evidence improperly obtained may or may not be admissible, depending on a balancing of public and private interests. Are these balancing exercises always questions of fact unless they are done irrationally?

The question is significant where there are limitations on rights of appeal to questions of law.

As I noted earlier (18 May 2010) in R v Gwaze [2010] NZSC 52 the New Zealand Supreme Court held that decisions on the admissibility of evidence are decisions on questions of law. Such decisions can involve balancing of competing rights, particularly under s 30 Evidence Act 2006. If these were questions of law, the weight given to relevant considerations would not be entirely for the decision-maker. What seemed "trite" to the UKSC in the context it was addressing in AP is certainly not trite in the Gwaze context.

Free speech and fair trials

Prospective jurors can safely be told anything about an accused's past. That radical proposition receives some support from the High Court of Australia in today's decision in Dupas v R [2010] HCA 20 (16 June 2010).

The fact that the accused had been previously convicted of two murders that happened in 1997 and 1999 was widely publicised in the Australian media, so that on his present trial for a third murder it was submitted on his behalf that the proceedings should be stayed because he could not get a fair trial.

Untenable as a general proposition though that may be, the question of whether a stay is required must be addressed in the circumstances of each case. When this is looked at from the post-trial appeal perspective, the appellate court can examine the measures that were taken to give effect to the accused's right to a fair hearing.

A general proposition about stays that is usually advanced is that they are only given in extreme cases. The High Court held (18) that the following should be regarded as an authoritative statement of principle:

"[A] permanent stay will only be ordered in an extreme case [citing
Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 34] and there must be a fundamental defect 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences' [citing Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 111 per Wilson J; [1980] HCA 48]. And a court of criminal appeal, before it will set aside a conviction on the ground of a miscarriage of justice, requires to be satisfied that there is a serious risk that the pre-trial publicity has deprived the accused of a fair trial. It will determine that question in the light of the evidence as it stands at the time of the trial and in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial." R v Glennon (1992) 173 CLR 592; [1992] HCA 16 at pp 605-606 per Mason CJ and Toohey J.

The power to stay proceedings, described as an "inherent power" by Lord Blackburn in Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 at 220-221, has what is broadly called a constitutional dimension, which makes the courts reluctant to interfere with decisions whether to prosecute or to continue with prosecutions: Moevao v Department of Labour [1980] 1 NZLR 464 at 481, and Fox v Attorney-General [2002] 3 NZLR 62 at para 28.

Thus the obvious common-sense objections to allowing stays to recidivists whose records are publicised are supported by these strains of legal principle.

The law must assume that juries will obey instructions given to them by trial judges. The High Court noted this important point as a counter to the denial of the "social imperative" that requires that an accused be brought to trial, that would occur if the media were able to render an accused unable to be tried. The Court referred (26) to the remarks of Hughes J, endorsed by the Court of Appeal, in R v Abu Hamza [2007] QB 659 at 685-686:

"Extensive publicity and campaigns against potential defendants are by no means unknown in cases of notoriety. Whilst the law of contempt operates to minimise it, it is not always avoidable, especially where intense public concern arises about a particular crime and a particular defendant before any charge is brought. Jurors are in such cases capable of understanding that comment in the media might or might not be justified and that it is to find out whether it is that is one of their tasks. They are capable of understanding that allegations which have been made may be true or may not be and that they, the jury, are to have the opportunity and responsibility of hearing all the evidence which commentators in the media have not and of deciding whether in fact the allegations are true or not. They are not surprised to be warned not to take at face value what appears in the media, nor are they these days so deferential to politicians as to be incapable of understanding that they should make no assumptions about whether any statements made by such people are justified or not. They are also capable of understanding and habitually apply the direction that they are given about the standard of proof."

True, there may sometimes be perverse verdicts favouring the accused (27):

" ... in Gammage v The Queen [[1969] HCA 68; (1969) 122 CLR 444 at 463; [1969] HCA 68] Windeyer J expressed the governing principle in terms which acknowledged that the jury room might not be a place of undeviating intellectual and logical rigour (a point made by Callinan J in Gilbert v The Queen [[2000] HCA 15; (2000) 201 CLR 414 at 440 [96]; [2000] HCA 15]) by saying:

"A jury in a criminal case may sometimes, from compassion or prejudice or other ulterior motive, fail to perform their sworn duty to determine the case before them according to the evidence. If they do so in favour of the prisoner, and not of the Crown, the law is powerless to correct their dereliction. They must be assumed to have been faithful to their duty. Their verdict must be accepted."

See also my comments on perverse verdicts (R v Wang 14 February 2005, R v Wanhalla 25 August 2006; R v Krieger 27 October 2006).

It comes down to this (29):

"What, however, is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations. That capacity is critical to ensuring that criminal proceedings are fair to an accused."

And the point is not so much the extreme or rare nature of the circumstances needed to support a stay, as the assurance of trial fairness (35):

"Characterising a case as extreme or singular is to recognise the rarity of a situation in which the unfair consequences of an apprehended defect in a trial cannot be relieved against by the trial judge during the course of a trial. There is no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered. In seeking to apply the relevant principle in Glennon, the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences."

There is a risk of misinterpretation of the last sentence in para 37 of the High Court's judgment. The para reads:

"A further consideration is the need to take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial [footnote: R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 598 per Mason CJ and Toohey J], the "social imperative" as Nettle JA called it, as a permanent stay is tantamount to a continuing immunity from prosecution [footnote: R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 599 per Mason CJ and Toohey J]. Because of this public interest, fairness to the accused is not the only consideration bearing on a court's decision as to whether a trial should proceed [footnote: Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 33 per Mason CJ]."

The dicta on this in Jago precede the common law's recognition of the accused's right to a fair trial as an absolute right which is not to be reduced by being balanced against other rights (see my comments on R(Ullah) v Special Adjudicator 3 September 2004; Grant v R (Jamaica) 20 January 2006; Williams v R (Jamaica) 26 April 2006; Condon v R 24 August 2006; R v Davis 19 June 2008; Al-Khawaja and Tahery v United Kingdom 27 January 2009; R v Grant 18 July 2009). It seems likely that what the High Court means here is that the "social imperative" will be given as full effect as is possible, consistent with the absolute right of the accused to a fair trial.

In the present case there was held to have been no unacceptable risk of trial unfairness and the appeal was dismissed. This case did not require examination of the full extent of the inherent power to stay proceedings.

This case illustrates that jury trials can be sufficiently robust to function correctly in the context of vigorously exercised freedom of speech.

The significance of silence

Hush! My silence means I might speak! My silence has a Beckettian significance.

"Today's decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded. Today's broad new rules are all the more unfortunate because they are unnecessary to the disposition of the case before us. I respectfully dissent."

Sotomayor J (joined by Stevens, Ginsburg and Breyer JJ) in Berghuis v Thompkins [2010] USSC No 08-1470, 1 June 2010, criticised the majority's undermining of the "heavy burden" on the prosecution to show that a suspect waived his Miranda right to silence, and the majority's acceptance of silence in the face of police questioning as not being an assertion of the right to remain silent.

She pointed out that the question of waiver has been treated as entirely different from the question of invocation of the right to silence. It was not for the accused to prove that he invoked the right, it was for the prosecution to prove that he waived it, citing Smith v. Illinois, 469 U. S. 91, 98 (1984) (per curiam). This burden was characterised as heavy in Arizona v. Roberson, 486 U. S. 675, 680 (1988).

In Berghuis v Thompkins the suspect had remained silent (except for an occasional single word non-committal response, and commenting that his chair was hard, and that he did not want a peppermint) throughout two and three quarter hours of police interrogation, until he was asked if he had prayed to God for forgiveness for the shooting, to which he replied with only one word, "Yes".

The opinion of the Court was delivered by Kennedy J. The majority denied that a custodial interrogation was inherently coercive. The Miranda right to silence is to be treated in the same way as the Miranda right to counsel: it must be invoked unambiguously and once invoked the interrogation must stop. Thus here it was for Mr Thompkins to say that he did not want to speak. Waiver occurred when he answered the question. There was, said the majority, no evidence that Mr Thompkins did not understand what he was giving up when he spoke, or that his answer was in any sense involuntary.

The police do not, held the majority, need to establish a waiver at the outset before embarking on an interrogation. If the suspect understands his rights he can review his position as the questioning proceeds, if he wishes. By saying he will remain silent he can terminate the interrogation.

"The prosecution therefore does not need to show that a waiver of Miranda rights was express. An "implicit waiver" of the "right to remain silent" is sufficient to admit a suspect's statement into evidence. Butler, [441 U. S.] at 376. Butler made clear that a waiver of Miranda rights may be implied through "the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver." 441 U. S., at 373. The Court in Butler therefore "retreated" from the "language and tenor of the Miranda opinion," which "suggested that the Court would require that a waiver be 'specifically made.' " Connecticut v. Barrett, 479 U. S. 523, 531–532 (1987) (Brennan, J., concurring in judgment)."

So here, in the absence of an express invoking of the right to silence, once the prosecution established that the suspect understood the rights, waiver of the right was established by what the majority regarded as a course of conduct: prolonged silence in the face of interrogation, and then an incriminating one-word response.

"In sum, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Thompkins did not invoke his right to remain silent and stop the questioning. Understanding his rights in full, he waived his right to remain silent by making a voluntary statement to the police. The police, moreover, were not required to obtain a waiver of Thompkins's right to remain silent before interrogating him."

Would the same result have occurred in Canada? See R v Turcotte, discussed here 5 October 2005.

One of the law's little dishonesties (to add to the one I mentioned on 13 January 2010 and in continuation of the theme noted on 3 March 2005) found in many jurisdictions, is the giving of rights in a constrained way, without clear explanation of how they can be exercised. Here is the advice Mr Thompkins was given pursuant to Miranda:

"NOTIFICATION OF CONSTITUTIONAL RIGHTS AND STATEMENT

"1. You have the right to remain silent.

"2. Anything you say can and will be used against you in a court of law.

"3. You have a right to talk to a lawyer before answering any questions and you have the right to have a lawyer present with you while you are answering any questions.

"4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one.

"5. You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned."

I would have thought, on the basis of what he had been told in para 5 of this notification, that in not answering questions Mr Thompkins was exercising the right in para 1. But given that silence in the face of questioning is not in law an assertion (or "invocation") of the right to remain silent, and that silence does not preclude some future waiver of the right, the Court should have taken the opportunity to make the statement of rights clearer. It should have added to para 5 a statement that questioning will stop when the person asks the police to stop questioning.

The durability of inducements

R v SGT [2010] SCC 20 (27 May 2010) gives us a reminder of some fundamentals about life and law.

• A person who would, if charged with a particular offence, plead not guilty, should not confess guilt to the police.
  
• Nor should he rely on any suggestion from the police that if he confesses he will not be charged.
  
• Nor should he confess guilt to any person who could be called as a witness against him.
  
• 
  

These self-evidently sensible stratagems seem often to be overlooked, and when they are it is difficult for defence counsel to get such blithe confessions excluded. The second sort of confession listed above should, if there is evidence that it occurred as a result of an improper inducement by a person in authority, be excluded, but confessions to people who do not exercise a relevant authority are almost impossible to exclude. There would need to be shown to be some unfairness in using the evidence, if there was no operative improper inducement.

There are some distinctions in terminology that can make discussion more precise. As Charron J, delivering the majority judgment in SGT, held at 20, the term "admission" is apposite for a confession made to someone who is not in authority, and "confession" is a confession made to a person in authority. The different usage is just a reminder that the confession rules apply to the latter but not to the former. Any statement, whether an admission or a confession, must always be voluntary. Charron J set out (21-23) the relevant aspects of the "person in authority" requirement which had been addressed in R v Hodgson, 1998 CanLII 798 (S.C.C.), [1998] 2 S.C.R. 449. After explaining why that didn't apply in SGT, she then considered the "derived confessions rule", the leading case on which is R v I (LR) and T (E), 1993 CanLII 51 (S.C.C.), [1993] 4 S.C.R. 504.

This rule can be thought of as embracing at least some of the fairness considerations that could be relevant. Essentially it recognises that there can be situations where an earlier inducement by a person in authority continues to operate on the accused's mind and to influence his decision to make a subsequent confession to someone else. The latter confession is not then the free and voluntary product of the accused's will. Was the factor that tainted the original confession a substantial cause of the second? Relevant considerations can be the time between the statements, whether the second was made by reference to the first, whether there were other similarities in the circumstances in which the two statements were made, whether the second could have been prompted by new evidence (Charron J at 29).

This derived confessions rule has applied, as the terminology indicates, to confessions, and the question now was whether it also applied to admissions (30).

Here the Court split:

"[32] I respectfully disagree with Fish J. that "as a matter of principle and logic" it is clear that "derived confessions need not be made to a person in authority in order to be found inadmissible" (para. 44). As a matter of principle, this broad assertion ignores the distinction between confessions and admissions discussed earlier. As for logic, much will depend on the facts of the particular case. Logic may have compelled the conclusion reached in G. (B.)
[1999 CanLII 690 (S.C.C.), [1999] 2 S.C.R. 475] where the later statement, which actually contained the earlier tainted confession given to the police, was made to a psychiatrist during the course of a court‑ordered examination into his mental condition. It may not be so compelling in a case where, for example, the accused repeats the contents of the tainted confession to a personal friend who has no connection to the prosecution."

It was not necessary for the majority to decide the point, it being sufficient for the purposes of this case to assume that it was arguable that the second statement could be excluded if there were to be a sufficient evidentiary basis connecting the earlier inducement to the second statement. This could be, if not on a common law derived confessions basis, "perhaps on a Charter basis" (33):

"The distinction between the two possible bases for exclusion remains important as the application of the common law "derived confessions rule" would result in the automatic exclusion of the tainted statement, whereas under the Canadian Charter of Rights and Freedoms the question of exclusion would fall to be determined under s. 24(2)."

It was significant here that the defence had consented to the admission of the second statement, and that the trial judge was entitled to rely on counsel making responsible tactical decisions (36-37). The record of the evidence did not suggest that such an objection would have succeeded: there was not the required evidentiary link between the inducement and the second statement.

This ground of appeal having failed, the case was remitted to the Saskatchewan Court of Appeal for determination of other appeal grounds.

A critical age

A glance at practice in other nations supported the United States Supreme Court's decision (6-3) that the Constitution does not permit a person under the age of 18 years at the time of his offending to be sentenced to life imprisonment without parole for a nonhomicide offence: Graham v Florida [2010] USSC No 08-7142, 17 May 2010.

The Eighth Amendment, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted", is the governing provision. Kennedy J, delivering the opinion of the Court, observed:

"To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to " 'the evolving standards of decency that mark the progress of a maturing society.' " Estelle v. Gamble, 429 U. S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)). "This is because '[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.' " Kennedy v. Louisiana, 554 U. S. ___, ___ (2008) (slip op., at 8) (quoting Furman v. Georgia, 408 U. S. 238, 382 (1972) (Burger, C. J., dissenting))."

The criterion is proportionality, and the Court has adopted a classification of cases: there are firstly, cases where all the circumstances are considered. For example,

"...closely divided, the Court rejected a challenge to a sentence of 25 years to life for the theft of a few golf clubs under California's so-called three-strikes recidivist sentencing scheme. Ewing v. California, 538 U. S. 11 (2003); see also Lockyer v. Andrade, 538 U. S. 63 (2003)."

These startling but acceptable punishments have been upheld in a decision process where the offender (appellant) must show, as a threshold, gross disproportionality between the sentence and the crime before the appellate court will proceed to compare his sentence with those imposed in the same jurisdiction and in other jurisdictions. The sentence is only cruel and unusual if this comparison confirms the initial perception of gross disproportionality.

The present case was not in this category.

The second category in the classification of cases is where rules are applied to define Eighth Amendment standards. Until now, these cases had concerned the death penalty. There were two subsets of cases in this second category: those considering the nature of the offence, and those considering the characteristics of the offender. So, the death penalty cannot be applied where the crime against an individual is not a homicide. Nor can it be applied where the crime was committed when the offender was under 18 years old. Nor where his intellectual functioning was in a low range.

Since the present case was not in the first category, the threshold approach was not applicable. This case sought an addition to the subsets in the second category so that it would apply to all those who were under 18 years old at the time of their offending.

The advantage of a case being in the second category is that without a threshold having to be met the Court would look at the national legislation and sentencing practice to see if there is consensus indicating society's standards, then the Court would exercise its own independent judgment to decide whether the punishment violates the Eighth Amendment in the light of precedent, text, history, meaning and purpose.

The Court looked at national sentencing practice and concluded

"The sentencing practice now under consideration is exceedingly rare. And "it is fair to say that a national consensus has developed against it." Atkins v. Virginia, 536 U. S. 304 (2002)16, at 316."

Then,

"The judicial exercise of independent judgment requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question."

The Court's precedents regarding the characteristics of juvenile offenders, their vulnerabilities and their prospects for reform on maturity, the need for a line to be drawn between murderers and other offenders, and the severity of a sentence of life imprisonment without parole especially for juveniles, the absence of any penological justification (retribution, deterrence, incapacitation, rehabilitation) for such a sentence, led to the conclusion that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.

So, why the age of 18 as the dividing line?

The alternative would be a case-by-case approach to assessing an offender's responsibility, but the Court rejected that because a sentencing court could be easily influenced, by the depravity of offending, to underestimate the offender's chance of reform, and also because juveniles do not necessarily communicate adequately with their counsel. All juveniles should be given the opportunity to demonstrate maturity, to show remorse, and to achieve rehabilitation.

Looking beyond the borders of the USA, the Court noted that the sentencing policy hitherto adhered to is rejected the world over.

"This observation does not control our decision. The judgments of other nations and the international community are not dispositive as to the meaning of the Eighth Amendment. But " '[t]he climate of international opinion concerning the acceptability of a particular punishment' " is also " 'not irrelevant.' " Enmund, 458 U. S., at 796, n. 22."

...

"We also note, as petitioner and his amici emphasize, that Article 37(a) of the United Nations Convention on the Rights of the Child, Nov. 20, 1989, 1577 U. N. T. S. 3 (entered into force Sept. 2, 1990), ratified by every nation except the United States and Somalia, prohibits the imposition of "life imprisonment without possibility of release . . . for offences committed by persons below eighteen years of age.""

The mental elements of conspiracy

Conspiracy is an agreement to commit an offence plus an intention that the offence should be committed by one or more of the conspirators. This means that recklessness as to whether or not the offence is committed is not enough: there must be an intention that it will be committed: R v LK; R v RK [2010] HCA 17 (26 May 2010).

When I summarise it so simply, the position seems obvious. How could it possibly be argued that D is conspiring if he is only reckless as to whether the full offence is committed?

In the appeals in LK and RK the alleged full offence was dealing with money while being reckless as to whether or not it was proceeds of crime. So, on the alleged conspiracies, why wasn't it enough for Ds to agree to deal with the money while intending that they should be reckless as to whether the money was proceeds of crime?

Intending to be reckless, in this context, is the same as being reckless as to whether there is an agreement to commit the offence. Therefore it is insufficient for conspiracy.

The joint judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ (and Heydon J agreeing at 145) puts it like this at 122:

" ... At the time the agreement was made the money may, or may not, have been (or have become) proceeds of crime. The agreement, if carried out in accordance with LK's and RK's intention, may not have involved a dealing with money that is proceeds of crime. It follows that, on the evidence given at the trial, it was not open to find that either respondent intentionally entered an agreement to commit the offence that is said to have been the object of the conspiracy."

French CJ said much the same thing at 77:

" ... There cannot be a conspiracy in which the parties to the agreement are reckless as to the existence of a circumstance which is a necessary element of the offence said to be the subject of the conspiracy. Such recklessness would be inconsistent with the very intention that is necessary at common law and under the Code to form the agreement alleged. In this case that intention is an intention to deal with money which is proceeds of crime. Recklessness as to whether the money is proceeds of crime is recklessness about a term of the agreement constituting the conspiracy...".

The Chief Justice leaves it to law students to work out whether his reasons on this point are the same as those of the other justices.

And, while you can't recklessly conspire, you can conspire to be reckless: Ansari v R [2010] HCA 18 (26 May 2010). In LK there was recklessness as to recklessness, and no conspiracy, whereas in Ansari there was intention to be reckless, and a conspiracy. The mens rea for conspiracy must be kept separate from the mens rea for the full offence. Whatever the latter may be, intention to commit the full offence is required for the conspiracy. 

Highest procedural protection, but not by jury trial

Since proceedings for contempt of court must be summary, in the sense that jury trials are not appropriate for contempt, they cannot be punished at a level that would carry the right to jury trial: Siemer v Solicitor-General [2010] NZSC 54 (17 May 2010) per Blanchard, Wilson and Anderson JJ.

The minority (Elias CJ and McGrath J) agreed that summary procedure for attempt was necessary, but that punishment could be imposed at a level that would otherwise require a jury trial because that was a justified limitation on the right to trial by jury.

Therefore Mr Siemer won this appeal, in the sense that the punishment for his contempt could not exceed 3 months' imprisonment – the level at which in New Zealand the right to jury trial arises (with some minor exceptions) pursuant to s 24(e) New Zealand Bill of Rights Act 1990.

The reasoning in the majority judgment contains an interesting turn-around, without being objectionable. Starting from the proposition that whenever a person can be punished by imprisonment he is entitled to the highest procedural protection known to the law (citing Wilson J as she then was in R v Wigglesworth [1987] 2 SCR 541), and that this applies whether or not the liability arises from criminal or civil proceedings, the majority added that s 5 of the Bill of Rights does not permit an exception to the right to trial by jury if the penalty for a contempt should be more than three months' imprisonment. So far, so good: one would think the majority reasoning was heading to a conclusion that jury trial was available. But no. There had never been a jury trial in proceedings for contempt in New Zealand, and the Court of Appeal had held that contempt proceedings are not indictable: Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 at 235, as had the House of Lords: Re Lonrho Plc [1990] 2 AC 154. Since jury trial is inappropriate for contempt, the maximum penalty cannot exceed the summary level.

Obviously, repetition of the contempt could attract a further sentence. This was a case of contempt committed by a blogger, and the majority noted that it seems that on the internet a new contempt is committed every time access is permitted to the relevant item: Loutchansky v Times Newspapers Ltd (No 2) [2001] EWCA Civ 1085 at 51 – 76; Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at 42 - 44, 128 and 191 – 196. The majority noted that some long periods of imprisonment have occurred for on-going contempts in the United States (para 58, footnote 65), but "It is very unlikely, indeed impossible, that a New Zealand court would follow that extreme example...".

Here the sentence was tailored to give the contemnor the opportunity of immediate release upon his cessation of the contempt and upon his undertaking not to repeat it, and indeed the commencement of the sentence was delayed to give him that opportunity. It seems that Mr Siemer believes that he removed the offending items from his site some time ago.

Relativity and mitigating factors

Lawyers' reasoning is not always easy for non-lawyers to grasp. It is obvious to criminal lawyers that if at sentencing a mitigating factor is absent, the offender is not being punished additionally because of that absence.

Today the High Court of Australia addressed this sort of logic in Republic of Croatia v Snedden [2010] HCA 14. Mr Snedden had resisted extradition to Croatia by claiming as an extradition objection that if tried in Croatia he would be subject to additional punishment because of his political beliefs. Service in the Croatian army, he claimed, was treated as a mitigating factor in relation to the relevant offences, and since he had served in the Serbian army he would be subject to additional punishment.

Heydon J pointed out that there was no factual substratum for Mr Snedden's claim. There was an absence of proof of the practice of Croatian courts in the relevant respect (83). So it was unnecessary to consider the issues that would arise if there was such proof.

The other members of the Court did address those issues. French CJ highlighted the absence of a causal connection between the absence of the mitigating factor and the claimed relevance of Mr Snedden's political beliefs to the punishment he could face (24). Just because the Croatian court would not be able to mitigate penalty on the basis of service in the Croatian army, did not mean that the court would be considering what Mr Snedden's political beliefs might have been.

French CJ did not dissent from the general proposition in the joint judgment (Gummow, Hayne, Crennan, Kiefel and Bell JJ at 79) that absence of a mitigating factor does not mean that an offender is being punished for its absence:

"79 A rational sentencing system will accommodate mitigating factors arising from the circumstances of the offender and the offence. In that context, ineligibility for a mitigating factor at the sentencing stage of a trial cannot be said to be punishment. Conceptually, the absence of a mitigating factor does not constitute or attract punishment. In particular, the absence of a mitigating factor is not an aggravating factor. Thus, while a plea of guilty is a mitigating factor, a plea of not guilty is not an aggravating factor."

There was no evidence here that absence of the mitigating factor would be treated as a punishment.

By way of comment, one might say it is all relative. If there were two accused persons being sentenced, only one of whom could rely on the mitigating factor (for example a plea of guilty), then from the point of view of the accused who pleaded not guilty, he is receiving a heavier punishment than the other, and the only reason – from his own point of view – is that he pleaded not guilty. He does not see the big picture. It is only when the frame of reference is changed to that of a third person (a spectator or the judge) that the wider theory of sentencing is apparent.

Courts insist on the "big picture" frame of reference because there are sound policy reasons for recognising mitigating factors. That is sensible and inevitable. Getting clients to understand the justice of the reasoning is an entirely different problem.

Finding mistrial and ordering retrial after acquittal

In R v Gwaze [2010] NZSC 52 (17 May 2010) a retrial was ordered because some defence evidence had been admitted wrongly and there had been no proper opportunity at trial for the Crown to respond to it.

There is nothing particularly odd about that. Unusual, yes, because this was an appeal against an acquittal, and this seems to be the first time in New Zealand that a retrial has been ordered on this sort of appeal. Occasionally there are appeals on questions of law reserved during trials (s 380 Crimes Act 1961) – but success on these is not inevitably followed by retrial.

A number of interesting points were considered in this judgment of the Court delivered by the Chief Justice:

Double jeopardy

The rules concerning double jeopardy (s 26(2) New Zealand Bill of Rights Act 1990) do not apply in this context because there is a high hurdle (s 382(2)(b) Crimes Act 1961) for the prosecution to overcome before a retrial will be ordered and there is no need for the extra protection that the rules against double jeopardy afford (para 67).

Mistrial

A mistrial (s 382(2)(b) Crimes Act 1961) occurs where an error at trial is reasonably capable of affecting the verdict, in the sense that it is highly material to the verdict so that the integrity of the verdict was undermined by it (57, 61), applying R v Matenga [2009] NZSC 18 (blogged here 9 July 2009 and 20 July 2009).

Question of law

A ruling as to the admissibility of evidence is a ruling on a question of law (52). This should be obvious, because admissibility is governed by statute (with minor exceptions) and the application of statute is a matter of law. To get to that conclusion, however, an unnecessary change in terminology was made: the decision to admit or exclude evidence is no longer to be called a discretion: it is an exercise of judgment (49, 51). The description in R v Leonard [2008] 2 NZLR 218, (2007) 23 CRNZ 624 (CA) para 22 of the balancing exercise in determining the admissibility of improperly obtained evidence as a "discretion" will have to be read in this new light.

In this case (and I do not discuss the facts as a retrial was ordered) the contested evidence should have been ruled inadmissible because it was unreliable hearsay (44), it was opinion that was not substantially helpful (46), and its prejudicial effect outweighed its (zero) probative value (48).

The Court held that the evidence was irrelevant (37-40). Strictly, there was no need for the Court to give other reasons for its being inadmissible, as s 7(2) Evidence Act 2006 excludes it. Even so, the evidence was irrelevant because it was not sufficiently connected to the facts in the trial. It was a preliminary assessment, recognising a possibility that a connection might emerge, but also recognising that there may be no connection, and that further inquiry was needed.

Clean scene or snitch glitch?

My criticism of the New Zealand Supreme Court's majority decision in Morgan v R can now be assessed in the light of a correct approach by the Supreme Court of Canada to the use of a jailhouse informer's evidence in R v Hurley [2010] SCC 18 (14 May 2010).

In Hurley the cell mate claimed that the accused had confessed to him that he had cleaned the crime scene in an effort to remove evidence of his participation; in particular, he had attempted to remove all traces of his DNA.

One of the requirements of the warning that must be given to the jury in such cases (this in Canada is called the Vetrovec warning, after R v Vetrovec [1982] 1 SCR 811) applies where reasons to doubt the reliability of a witness may not be self-evident to the jury:

"something in the nature of confirmatory evidence should be found before the finder of fact relies upon the evidence of a witness whose testimony occupies a central position in the purported demonstration of guilt and yet may be suspect by reason of the witness being an accomplice or complainant or of disreputable character..." (Vetrovec, per Dickson J, para 42).

See also my discussion of R v Khela [2009] SCC 4.

In the circumstances in Hurley, supporting evidence for the cell mate could only be evidence that the crime scene had been cleaned. There was no issue that the accused had been at the scene, but he gave an innocent explanation for that, so presence of some of his DNA would not be conclusive. This is encapsulated in para 7 of Hurley (Mr Niemi is the cell mate):

"The evidence about the attempts to clean the room was unquestionably significant to the Crown's case. In his closing address, Crown counsel submitted to the jury that, on the evidence before the court, it was "clear that there was an attempt to clean the room" ... . The evidence of attempts to clean the room could be taken as independent evidence tending to support Mr. Niemi's evidence about his conversation with Mr. Hurley. In turn, Mr. Niemi's evidence supported the Crown's case that Mr. Hurley had not only been there, but also that he was the killer. Thus anything that tended to rebut the room cleaning theory tended to weaken the independent evidence that could be seen as supporting Mr. Niemi's version of the conversation with Mr. Hurley and, consequently, weakened the Crown's circumstantial case."

There was fresh evidence concerning the finding of Mr Hurley's DNA at the crime scene – this evidence was not available to the Court of Appeal – and the Supreme Court ordered a new trial. This evidence made it unnecessary for the Court to address the seriousness of criticism of the trial judge's Vetrovec warning, which was that the jury had not been told sufficiently why they might have reservations about the credibility of the cell mate's evidence of the accused's confession.

Hurley brings into focus the need for precision as to what evidence is capable of supporting, or undermining, the reliability of the contested evidence. Whereas in Morgan the New Zealand court majority judgment was imprecise on this (and precision would have revealed that there was no such supporting evidence), in Hurley the Canadian court highlights the supposedly supportive evidence and concludes that a second jury might not think it was as strong, in the light of the fresh evidence, as it had seemed.