The best of the best

Tom Bingham's brilliant article in the London Review of Books (26 March 2009) made many of us think he was just beginning a retirement career as a masterful commentator. His death on 11.9.10 came, therefore, as a surprise as well as an occasion for sober reflection: see the tribute by Alex Bailin QC at UKSC blog.

For me, Lord Bingham's most important contribution was to settle a debate about the status of an accused person's right to a fair hearing. While some judges were prepared to see this as a right that could be qualified by being balanced against the rights of the prosecution and of victims, in Randall v R (Cayman Islands) [2002] UKPC 19 at para 28 Lord Bingham, for the Board, established the absolutist position:

"…the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial."

And in the House of Lords the same point was made (by Lord Bingham for the Appellate Committee) in R v H [2004] UKHL 3 (5 February 2004) at para 10. This required some delicate manoeuvring around dicta that appeared to support a balancing approach to this right (para 12, citing Lord Steyn in Attorney-General's Reference (No 3 of 1999) [2001] 2 AC 91, 118). Even so, the issue was not secure: four months after H, Lord Bingham agreed with Lord Steyn in R v Special Adjudicator, ex parte Ullah [2004] UKHL 26 (17 June 2004) who at para 44 called the right a "qualified" right (that is, subject to derogation – a point that is rarely relevant), requiring consideration of a "triangulation of interests" (the accused, the victim, the public) where "compromises" might be required, although the requirement of a fair trial is "a universal norm".

But Lord Steyn had delivered the Board's judgment in Mohammed v The State (Trinidad and Tobago) [1998] UKPC 49 (9 December 1998), saying at para 29 "a breach of a defendant's constitutional right to a fair trial must inevitably result in the conviction being quashed." Is there a problem? Was Lord Steyn suggesting a model of fairness where whatever "fair" means, it is absolute, but its meaning is determined by triangulation? That possibility is excluded by H, triangulation is confined to other rights and its results are subject to the test of fairness (see para 36, step 6). Were it to be otherwise, "absolute" would mean nothing. To borrow Larkin's apposite phrase, "one side will have to go".
 
The accepted position is summarised in [2005] New Zealand Law Review 217 at 249 (footnotes omitted):

"The question is not how unfair is the accused’s trial required to be because of proper restrictions on cross-examination, but rather, what restrictions on cross-examination are compatible with the accused’s absolute right to a fair trial? Again, the question is not to what extent may reasonable breaches in identification procedures limit the accused’s right to a fair trial, but rather, what failings in identification procedure are compatible with the accused’s absolute right to a fair trial? The question is not to what extent may disparities in the opportunity of expert witnesses to examine the relevant evidence limit the accused’s right to a fair trial,  but rather, what disparities are compatible with the accused’s absolute right to a fair trial? The question is not, to what extent may pre-trial publicity limit the accused’s right to a fair trial,  but rather, what level of publicity is compatible with the accused’s absolute right to a fair trial? The question is not, to what extent may breaches in the rights relating to police questioning be allowed to limit the accused’s right to a fair trial, but rather, what departures are consistent with both the accused’s right to a fair trial and wider issues of prevention of abuse of process?"

It is now generally recognised that the accused's right to a fair trial is an absolute right: R v Howse (New Zealand) [2005] UKPC 31, para 36; Condon v R [2006] NZSC 62 (23 August 2006) at para 77, 78.

Eight days before Condon was decided, no less a legal scholar than Grant Hammond (who has achieved praise in these blogs) delivered a lecture in which he said (p 20) "The question whether it is possible to have an unfair trial but a safe conviction is maddeningly simple. But there is no clear answer" and he favoured a broad approach whereby if a conviction appeared safe on the evidence at trial, the accused's appeal should only be allowed on unfairness grounds if a balancing of rights supported that conclusion. What was clear to Lord Bingham might only slowly become apparent to others.

In New Zealand we have particular reason to remember Lord Bingham as the judge who delivered the devastating rejection of the Court of Appeal's analysis of the case against David Bain: Bain v R (New Zealand) [2009] UKPC 4 (16 March 2009). Applying the correct approach to the proviso, the Board ordered a new trial. Mr Bain (as all New Zealanders know) was subsequently acquitted of the murders of his parents and three siblings. The New Zealand courts have now changed their approach to the proviso, although the Privy Council insists that the result in Bain would have been the same: Barlow v R (New Zealand) [2009] UKPC 30, para 21.

Admissiblity issue or defence?

There is a difference between a procedural error in steps taken by an enforcement officer which provides a defence to a charge, and an error which results in evidence being improperly obtained: Birchler v Police [2010] NZSC 109 (30 August 2010). An officer had wrongly decided that a breath test could not be carried out at the roadside, and required the suspect to accompany her to the police station for the testing procedures. The accompanying was not voluntary (8). The District Court Judge dismissed the charge, instead of ruling that the improperly obtained evidence was admissible pursuant to the balancing exercise set out in s 30 of the Evidence Act 2006.

In the absence of reasonable compliance with the procedures the defendant had a defence (17). It would have been wrong for the Judge to have proceeded to the balancing exercise, because to do so was "quite inconsistent" with the statutory procedural scheme. The High Court, on an appeal on a question of law, held that the District Court could have undertaken the balancing exercise instead of dismissing the charge. The Supreme Court overruled that and set aside the High Court's order which remitted the case to the District Court for reconsideration.

The Supreme Court took the opportunity to correct a troublesome dictum in R v Gallichan [2009] NZCA 79 at 18, in which the Court of Appeal had indicated that failure to challenge the admissibility of evidence before the close of the prosecution case prevented the issue being raised. That was wrong (Birchler at 21).

Saved by sunken dreams

In Attorney-General v Tamil X [2010] NZSC 107 the New Zealand Supreme Court applied JS (Sri Lanka) v SSHD [2010] UKSC 15 (discussed here 16 April 2010). The case concerns whether X was disqualified from obtaining refugee status. Two grounds for disqualification were advanced: his participation in a crime against humanity, and his commission of a serious non-political offence.

Here, the sinking of a ship which carried weapons meant that no crime against humanity was committed as a result of any support that X may have given, as Chief Engineer onboard, to the Tamil Tigers during the vessel's last voyage bound for Sri Lanka. The Crown had acknowledged that no attempt was committed on the particular facts, which included findings that X was a loyal supporter of the Tamil Tigers, and he knew that he was helping to smuggle arms to Sri Lanka.

The Supreme Court held that all the necessary elements for X's personal responsibility for participating in a joint criminal enterprise to commit crimes against humanity were established on the facts (71), except that there was no proof of criminal acts of the Tamil Tigers in which it could be said that X was complicit, as the sinking of the ship resulted in no use of the weapons (72, 73, 75, 78). The point of joint enterprise liability is to make liable those who assist or contribute to crimes that are actually committed (79).

Another issue was whether X had committed, by other conduct, a "serious non-political crime". He had been convicted in India of being a party to the intentional destruction of a vessel carrying explosives in circumstances where danger to lives was likely (83). If this was accepted by the New Zealand authorities, that would establish X had committed a "serious crime", but was it "non-political"? That term is not defined (87). It is a question of the context, methods, motivation and proportionality of the crime to the offender's political motives (90), bearing in mind that (although it is not the norm in New Zealand) violence may be an incident of political action in many other countries (91, applying Kirby J's dictum in Minister for Immigration and Mulitcultural Affairs v Singh [2002] HCA 7 at para 106).

Here, X's conduct was political: there was not the "indiscriminate violence against civilians which would make the link between the criminal conduct and any overall political purpose too remote." (95)

There was thus no evidence of non-political crimes that would have disqualified X from obtaining refugee status. Nor was there evidence that he should be disqualified by reason of participation in a crime against humanity.

It seems that the Crown's concession that there was no attempt to commit a crime against humanity on these facts was important to the outcome. It was properly made, in view of decisions in domestic law about the difference between preparation to commit an offence and attempting to commit it. The distinction is sometimes difficult to draw, and can be controversial. The failure of a bomb to detonate would not save participants from liability for the attempt. But being interrupted in the process of assembling the ingredients for the bomb might. Generalisations are dangerous.

Doing the right thing

And now, on the actual date of the sixth anniversary of this site, here – as my 400^th posting - is a note on Petryszick v R [2010] NZSC 105 (24 August 2010).

The only grounds on which the Court of Appeal may dismiss an appeal against conviction are set out in s 385(1) Crimes Act 1961, and the substantive right to appeal (s 383) is not restricted - in the absence of express or implied authority in primary legislation - by authority to make procedural rules (32). Nor could the inherent right of the Court to control its own procedure be invoked to undermine the general standard of process required by s 25(h) New Zealand Bill of Rights Act 1990.

There will therefore be occasions when the Court must address grounds for appeal specified in preliminary documents without the assistance of a fully prepared argument for the appellant. Here the appellant had been in custody and correspondence from the court had been wrongly addressed, there were delays in approving a grant of full legal aid for his appeal, official correspondence did not refer to points he had raised, there were delays in giving the appellant information he needed to prepare his appeal. The Court of Appeal had dismissed the appeal without considering all the matters that had been raised.

The humorous side of this case is in the reaction of the Court of Appeal to the sort of quotidian frustrations that ordinary people can encounter in their efforts to obtain the service to which they are entitled from the bureaucracy. Consigning such a case to the wastepaper basket of dismissed appeals is not the right thing to do.

Rules of procedure should assist access to courts. The present Supreme Court case is reminiscent of the spirit of its earlier decision in Zaoui v Attorney-General, noted here on 25 November 2004. The lesson delivered by the Privy Council in Taito v R (New Zealand) [2002] UKPC 15 needs to be remembered. People who look for reasons to institute a criminal cases review tribunal will take the Court of Appeal's approach to Petryszick as an example.

Time

This week is the sixth anniversary of the start of this site.

Other milestones? Forty years ago I was dux of the same secondary school that Lord Rutherford was dux of in 1889. I smile at the bathos. Perhaps in some other dimension Rutherford's loud laughter echoes down the corridors of the Cavendish when he sees the result of searching this site for the word "smug".

I came to law after a science degree which left me fearless of mathematics, statistics and probability. This leads to the next anniversary.

Thirty years ago I had, as a spin-off from my PhD thesis, an article published in the Criminal Law Review. The publishers sent me copies of that month's edition.

This contained a fascinating exchange between Sir Richard Eggleston and, in the letters part of the journal, Jonathan Cohen over the forensic use of probability reasoning.

Consequently, I became familiar with Bayes' Theorem. The book by Bernard Robertson and GA Vignaux, "Interpreting Evidence" (1995) should make this subject accessible for most lawyers. So may my draft paper on the logic of propensity evidence [click here].

Bernard, incidentally, is mentioned on the innocent project page of Victoria University in Wellington. And, to complete a circle within a circle, Graham Zellick – mentioned in the edition of the Criminal Law Journal referred to above, is here in New Zealand now in connection with Victoria University's Innocence Project. Gasp.

So there we have it: milestones, coincidence, criss-crossing lives, earnest endeavours, and time always passing.

Bringing science to law

For more on DNA, see the second part of the article mentioned last time: New Scientist, 18 August 2010.

It confirms that the likelihood ratio is the best way of presenting conditional probability evidence. This will be familiar to anyone who uses Bayes' Theorem.

The simplicity of this approach is so stark that it can be mistaken for complexity. It asks, how much more is the evidence consistent with guilt than with innocence?

Difficulties with DNA evidence arise when scientists try to assign probabilities to each of these consistencies.

In my own humble little way I have offered lawyers an easy introduction to Bayesian reasoning.

It is a paper that has long been in draft form, so I can revise and update it as developments occur.

Interpreting DNA test results

See New Scientist for an article called "Fallible DNA evidence can mean prison or freedom" by Linda Geddes, dated 11 August 2010.

Interpretation of DNA analysis can be subjective and it is vulnerable to suggestion, so that scientists should know nothing of the circumstances in which samples were obtained or about the prosecution theory of the case.

The article points out that a defendant could be wrongly convicted because an analyst says that samples matched, when in fact peer opinions may differ over that and indeed may favour the contrary conclusion.

I suppose some defendants might wrongly be acquitted if an analyst thought there was no match, when peers might think there was a match. Could that happen?

Dismissing judges for misconduct

I imagine that all experienced barristers are familiar with bad judicial behaviour. But how bad does it have to be before a judge can be removed from office?

In Madam Justice Levers, Hearing on the Report of (The Cayman Islands) [2010] UKPC 24 (29 July 2010) the criterion for removal from office was set out [50]:

"The public rightly expects the highest standard of behaviour from a judge, but the protection of judicial independence demands that a judge shall not be removed for misbehaviour unless the judge has fallen so far short of that standard of behaviour as to demonstrate that he or she is not fit to remain in office. The test is whether the confidence in the justice system of those appearing before the judge or the public in general, with knowledge of the material circumstances, will be undermined if the judge continues to sit – see Therrien v Canada (Minister for Justice) [2001] 2 SCR 3. If a judge, by a course of conduct, demonstrates an inability to behave with due propriety misbehaviour can merge into incapacity."

An incident that of itself would have justified the judge's removal from office occurred during a sentencing hearing when the judge made disparaging comments about a complainant and people of her race. These comments [64]

"... showed bias, and indeed contempt, for Jamaicans which extended not merely to the defendant but to his victim, who happily was not in court. The comments about [her] ... were monstrous, suggesting that she should have been sent "home", describing her as "a woman like that" and accusing her of "spreading her goodwill around" – a clear allegation of promiscuity."

We all know that judicial behaviour tends to improve towards the appellate end of the hierarchy.

We are currently going through our own little trauma here, and it seems to be something that blew up out of a very minor error of judgement. Of course I would never read email messages that were not intended for my eyes, but if I did I would be fascinated by the glimpse they gave of the concerns of top ranking QCs. Private and professional lives, friendships and high legal principles, confidentiality and its limits, the individual and the integrity of the courts. The magnification of error by stress, the struggle for a proper perspective.

Reasonable, fair and not necessarily surprising

When is an unannounced forced entry into an occupied dwelling reasonable? In R v Cornell  [2010] SCC 31 the majority held there were sufficient circumstances to make such a search reasonable. These cases will usually be fact-specific, as here, and no new principles of law were established.

 The majority (McLachlin C.J. and Charron, Rothstein and Cromwell J, joint judgment delivered by Cromwell J) stated the general principles: 

"The only issue is whether the lawfully authorized search was conducted reasonably. Except in exigent circumstances, police officers must make an announcement before forcing entry into a dwelling house. Ordinarily, they should give: (1) notice of presence by knocking or ringing a door bell; (2) notice of authority, by identifying themselves as law enforcement officers; and (3) notice of purpose, by stating a lawful reason for entry. While the "knock and announce" principle is not absolute, where the police depart from it, there is an onus on them to explain why they thought it necessary to do so. If challenged, the Crown must lay an evidentiary framework to support the conclusion that the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants or about the destruction of evidence. The police must be allowed a certain amount of latitude in the manner in which they decide to enter premises and, in assessing that decision, the police must be judged by what was, or should reasonably have been, known to them at the time. On appellate review, the trial judge's assessment of the evidence and findings of fact must be accorded substantial deference."
 

In another fact-specific case decided the same day, the Court by the same majority (but here delivered by Charron J) held that the law may require a trial judge to put to the jury matters of law not covered by counsel (even by agreement between counsel), with the result that a basis for conviction which was not the subject of addresses to the jury by counsel may properly be considered and relied on in deliberation of the verdict: R v Pickton  [2010] SCC 32 This is really because the trial must be in accordance with the law, subject to fairness. Here the jury had been asked to acquit based on a factual doubt (as to his being a principal), but that doubt would not, on a wider view of routes to guilt (secondary liability), have exculpated him.

The position in Canada is that, even if the Crown has consistently advanced only one theory of guilt, its case is "a moving target": R v Rose, 1998 CanLII 768 (S.C.C.), [1998] 3 S.C.R. 262. The issue will be whether a change in stance gives rise to unfairness to the accused. It was significant here that "the defence theory itself put the participation of others at issue" (21, the majority's emphasis), and this meant that throughout the trial defence counsel were aware that secondary participation was in issue. The minority considered that the judge's instruction on secondary liability was inadequate.

Exculpatory statements ... and trials in the fullness of time

A brief note on two Privy Council decisions from last week:

Gordon v R (Belize) [2010] UKPC 18 (21 July 2010) is an interesting little reminder that there are times when the prosecution is, in the interests of fairness to the accused, obliged to lead evidence of his exculpatory statement, applying R v Sharp [1988] 1 WLR 7 and R v Aziz [1996] 1 AC 41.

The case also illustrates a misdirection on provocation.

In Maraj-Naraynsingh v Attorney-General of Trinidad and Tobago [2010] UKPC 19 (21 July 2010) we are given a glimpse of what seems to be a relaxed attitude to work in the tropics: the case highlights an absence in that jurisdiction of a constitutional right to a trial within a reasonable time; the right to be brought before a court "promptly" after arrest cannot be extended to include a right to be tried promptly after committal.