What’s the word for ...?

Procedural fairness aims at facilitating substantive fairness. Sometimes procedural rights are so close to the right to a fair trial that there is no room to argue that notwithstanding breach of procedural fairness there was a fair trial. An argument along these lines was rejected in Abdula v R [2011] NZSC 130 (1 November 2011).

The Supreme Court in this case laid down procedural guidelines for the use of interpreters in trials in the future [60]. Those procedures had not been followed in this case. At [44] the Court said:

"The consequence of a breach of the right to the assistance of an interpreter under s 24(g) [of the New Zealand Bill of Rights Act 1990] is a breach of the right to a fair trial under s 25(a). We do not accept as correct the Crown's submission that, once a breach of the right to assistance of an interpreter is shown, the court must exercise a judgment as to whether the accused nevertheless had a fair trial. Rather, a properly established breach – the failure to meet the required standard – necessarily makes the trial unfair. In those circumstances, it is axiomatic that a substantial miscarriage of justice will have occurred. There can accordingly be no resort to the proviso under s 385(1) of the Crimes Act 1961.[Footnote: R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [77]]"

In my view, this question of "failure to reach the required standard" marks the boundary between procedural unfairness and substantive unfairness. While the Court seems to be denying any distinction between the right to assistance of an interpreter and the right to a fair trial, it can only remove the distinction by employing the "required standard" concept. Really, the standard required of interpreters is that of avoiding trial unfairness.

Another interesting feature of this case is that the appellant has succeeded in establishing a rigorous procedure for future cases but not his own. The question for the Court then became, notwithstanding the departures in this case from the new standard was there any defect that resulted in an unfair trial here? The Court does here exactly what the Crown had "unsuccessfully" submitted it should do at [44] quoted above. But it does that by using the "required standard" analysis.

Failure of the appellant here was not surprising, because his counsel could not demonstrate any instance where failure of accurate interpretation impeded the conduct of the defence at trial [59]. Of course it would be difficult for counsel to do that here, as the words used by the interpreter were not known. On the facts, however, the defendant had at trial expressed no concern over the adequacy of the interpretation – but then, how could he know what was adequate?

In appeals like this (rape) there might be a public perception that the Court would do everything it could to avoid a retrial. Fortunately for the public perception of the administration of justice there seems to be sufficiently careful scrutiny of the circumstances in this judgment to put such concerns to rest.

Voices of reason

Thanks are due to UKSCBlog for drawing our attention to video interviews with some of the Justices, published by the Guardian.

We simply don’t do that

Acceptance of a bribe can occur after the performance of an act beneficial to the payer and without any expectation of payment when the act was done: Field v R [2011] NZSC 129 (27 October 2011).

This is because [59] "it is simply wrong for an official to accept money or like benefits in return for what has been done in an official capacity."

And [61] an environment would otherwise be created where

"(a) an official who receives such benefits will come to expect similar benefits in the future and is likely to act accordingly; and

(b) members of the public who know about, or suspect, what has happened will come to believe that unless they too provide such benefits, they will not receive dispassionate consideration and, if prepared to provide such benefits, will receive corresponding advantages."

Any expressions to the contrary as might be detected in previous cases or law commission reports didn't matter.

"[62] ... there is a fundamental inconsistency between the performance of official functions and the acceptance of private rewards for doing so. In large measure this is a corollary of the first reason in the paragraph above. But associated with this are related expectations about the way in which those in official positions, including Members of Parliament, can be expected to act. This consideration is also illustrated by the facts of the present case."

But there is room for courtesies:

"[65] ... if there is an exception, it must address the extent of the gift and the particular context in which it occurs. We consider, therefore, that there must be a de minimis defence in relation to gifts of token value which are just part of the usual courtesies of life."

As to the element that a bribe be accepted "corruptly",

"[66] ... In part it captures the requirement for a defendant to have acted knowingly. In the present case, this requirement required the Crown to establish that the appellant knew that the services he received were provided in connection with the immigration assistance he gave, meaning that he knowingly engaged in conduct which the legislature regards as corrupt. As well, it is the presence in s 103(1) (and like provisions) of the word "corruptly" which permits the de minimis exception to liability which we accept exists."

Deflecting the jury from its fundamental task

"The instructions which a trial judge gives to a jury must not, whether by way of legal direction or judicial comment on the facts, deflect the jury from its fundamental task of deciding whether the prosecution has proved the elements of the charged offence beyond reasonable doubt."

Hargraves v The Queen; Stoten v The Queen [2011] HCA 44 (26 October 2011) at [45] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

It was a potential breach of this for the judge to direct the jury that in assessing the defendant's evidence they could take into account his interest in the verdict.

Other examples of possible deflection of the jury from their task mentioned here are comment on the defendant's failure to give evidence [43] and asking the defendant in cross-examination why the complainant is lying [44].

Deflection of the jury from its fundamental task is a miscarriage of justice. Whether deflection has occurred in a particular case must be assessed in the context of the whole of the summing up and the circumstances of the case. As it turned out here, there was no miscarriage, because the jury would not have understood the judge to be saying that the evidence of a defendant must be scrutinised more carefully than that of other witnesses.

Omission? What omission?

For discussion of liability for omissions under the law of the Commonwealth of Australia, see Commonwealth Director of Public Prosecutions v Poniatowska [2011] HCA 43 (26 October 2011).

The majority held that legislation had failed to specify what act that was omitted was necessary for the actus reus of an offence of engaging in conduct that resulted in the obtaining a financial advantage that the defendant knew or believed he was not eligible to receive. Here, conduct is defined as including an omission to perform an act, and an omission is only a physical element of an offence if the law creating the offence makes it so.

The legislature, anticipating this glitch, introduced a new section (s 66A) into the relevant legislation. This enabled the requiring of a person to do a specific act in the relevant circumstances, namely to give information. Omission to do that specified act would apparently be sufficient for this element of the actus reus.

Heydon J, dissenting, criticised the increasing vagueness of statutory criminal law. He referred to

" ... the proposition advanced by the responsible Minister, when the Code was introduced into the House of Representatives in 1995, that it would reflect Benthamite ideals of certainty in the criminal law [footnote: Australia, House of Representatives, Parliamentary Debates (Hansard), 1 March 1995 at 1331]. One does not often encounter a more striking illustration of the vanity of human wishes. That is because very many parts of the Code, including the parts debated in this appeal, are inconsistent with those ideals. They represent a significant regression from the condition of Commonwealth, State and Territory criminal law as it was before 1995. That criminal litigation under the Code is conducted with any semblance of ordered justice is a tribute to the Australian legal profession, not to the Commonwealth legislature."

So, legislatures, sharpen your Act(s). Ho ho.

Some errors of law in judicial fact finding

For a reminder of the kinds of things that can be errors of law arising out of a trial judge's treatment of the evidence, see R v J.M.H. 2011 SCC 45. The headnote summarises them from the judgment of the Court delivered by Cromwell J at [24] – [32]:

"The Crown's right of appeal from an acquittal of an indictable offence is limited to 'any ground of appeal that involves a question of law alone'. The jurisprudence currently recognizes at least four types of cases in which alleged mishandling of the evidence may constitute an error of law alone giving rise to a Crown appeal of an acquittal; this may not be an exhaustive list. First, it is an error of law to make a finding of fact for which there is no evidence. However, a conclusion that the trier of fact has a reasonable doubt is not a finding of fact for the purposes of this rule. Second, the legal effect of findings of fact or of undisputed facts may raise a question of law. Third, an assessment of the evidence based on a wrong legal principle is an error of law. Fourth, the trial judge's failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error of law, but this error will be found to have been committed only if the reasons demonstrate that this was not done. The trial judge's reasonable doubt did not have to be based on the evidence; it could arise from the absence of evidence or a simple failure of the evidence to persuade him to the requisite level of beyond reasonable doubt. It is only where that reasonable doubt is tainted by a legal error that appellate intervention in an acquittal is permitted."

That decision (maple) tree again

If evidence was wrongfully obtained, what is the relevance to its admissibility that it could have been obtained lawfully?

Sometimes failure to use lawful means would aggravate the wrongfulness. Other times the lawful alternative would diminish the wrongfulness. When?

The Supreme Court of Canada got to grips with this in R v Côté 2011 SCC 46 (14 October 2011). The context for this sort of decision in Canada is R v Grant 2009 SCC 32, which I had some fun with here on 18 July 2009 for its complex model of how admissibility of improperly obtained evidence is to be decided. Grant was referred to recently by the Supreme Court of New Zealand in Hamed v R, discussed here on 19 September 2011.

So to the vital bit of Côté. The term "discoverability" means the ability to discover the evidence lawfully. Two "branches" of the Grant model have to be addressed: the seriousness of the misconduct, and its impact on the defendant Cromwell J delivering the joint judgment):

"[71] I turn to the first branch of the Grant test which is concerned with the seriousness of the Charter-infringing state conduct. If the police officers could have conducted the search legally but failed to turn their minds to obtaining a warrant or proceeded under the view that they could not have demonstrated to a judicial officer that they had reasonable and probable grounds, the seriousness of the state conduct is heightened. As in Buhay, a casual attitude towards, or a deliberate flouting of, Charter rights will generally aggravate the seriousness of the Charter-infringing state conduct. On the other hand, the facts that the police exhibited good faith and/or had a legitimate reason for not seeking prior judicial authorization of the search will likely lessen the seriousness of the Charter-infringing state conduct.

"[72] We come now to the effect of discoverability on the second branch of the Grant test — the impact on the Charter-protected interests of the accused. Section 8 of the Charter protects an individual's reasonable expectation of privacy. That reasonable expectation of privacy must take account of the fact that searches may occur when a judicial officer is satisfied that there are reasonable and probable grounds and authorizes the search before it is carried out. If the search could not have occurred legally, it is considerably more intrusive of the individual's reasonable expectation of privacy. On the other hand, the fact that the police could have demonstrated to a judicial officer that they had reasonable and probable grounds to believe that an offence had been committed and that there was evidence to be found at the place of the search will tend to lessen the impact of the illegal search on the accused's privacy and dignity interests protected by the Charter."

Nothing controversial there.

I still think the Canadian model in Grant is absurdly complex: who can visualise a 3-branch balancing exercise? The third branch is the public interest in admission of the evidence. It would be better to think of the first two as being one "branch", or arm of the balance, with a weight moving one way or the other along it according to the first two considerations.

In Grant the model was called a "decision tree". Draw it for us. I had a go, but couldn't say it would make comparison of cases easy.

Previous acquittals as propensity evidence

In Fenemor v R [2011] NZSC 127, the Supreme Court declined to establish a rule excluding, as propensity evidence, evidence of facts on which the defendant had previously been acquitted ("acquittal evidence"). The Court held that in each case admissibility of acquittal evidence will depend on its qualifying under s 40(1) of the Evidence Act 2006 as propensity evidence and then on its surviving the weighing of probative value against risk of unfair prejudice required by s 43.

The Court declined to give examples of when unfairness might make such evidence inadmissible, beyond that mentioned in Degnan [2000] NZCA 321, [2001] 1 NZLR 280 (CA) of an alibi having been the basis for the earlier acquittal. It was preferable that the case law should develop over time as questions of unfairness are very case-specific.

A challenge addressed to the acquittal dimension of the propensity evidence must demonstrate a logical connection between the acquittal and the claimed unfairness.In Fenemor it was argued unsuccessfully that the defendant would have to give evidence if the evidence was ruled admissible and that this was unfair. The Court, upholding the reasoning of the Court of Appeal, held that he would be in the same position if the evidence had led to a conviction, or if no earlier charge had been brought, so there was no logical connection between the acquittal and the claimed unfairness. Similar reasoning applied to a submission that the prior acquittal evidence would lead the jury to reason wrongly. Nor was it correct to argue that it would be unfair to adduce the similar facts that the previous jury had rejected, because that jury had only seen "one frame of what was now known to be a bigger picture" [22].

Assessment of the probative value of the evidence in relation to the present charge is different from assessing its value as proof of the earlier charge, and a priori there is no basis for a general conclusion that acquittal evidence has different probative value from propensity evidence that has not led to any charge [23].

Fruit of the poisoned tree

When may evidence obtained 'downstream' from improperly obtained evidence be admissible? By downstream I mean that the finding of the challenged evidence occurred as a consequence of the improper obtaining of the other evidence.

For example, if the defendant, under improper questioning, gives information to the police about a witness who could vouch for him, and the police consequently question that witness and obtain evidence incriminating the defendant, how should the court decide whether the incriminating evidence is admissible? Facts like this were considered in HM Advocate v P (Scotland) [2011] UKSC 44 (6 October 2011). This is a companion case to that considered in my note yesterday.

The position in domestic Scots law is that if the evidence could be led without reference to the improperly obtained evidence it would not be treated as inadmissible by reason of it having been found as a consequence of the improperly obtained evidence: Lord Hope at 17, citing Lawrie v Muir 1950 JC 19. Similarly, in England and Wales under s 76(4) and 78(1) of PACE 1978 all the circumstances must be considered and the consequential evidence is not invariably excluded: at 18.

As far as Strasbourg jurisprudence went, there was no definitive decision but guidance could be obtained from Gäfgen v Germany (2011) 52 ECHR 1 (noted here on 3 July 2008, Chamber, and Grand Chamber on 25 June 2010): Lord Hope at 22. No rule of automatic exclusion of such consequential evidence has been established 23.

The Supreme Court found some assistance from Canada: Thomson Newspapers Ltd v Canada (Director of Investigation and Research) [1990] 1 SCR 425, where the distinction was made between evidence created by impropriety, and evidence that may have gone undetected but for the impropriety but which nevertheless existed independently.

This was consistent with the conclusion Lord Brown reached 27:

" ... there is no absolute rule that the fruits of questioning of an accused without access to a lawyer must always be held to be a violation of his rights under article 6(1) and 6(3)(c) of the Convention. It is one thing if the impugned evidence was created by answers given in reply to such impermissible questioning. The leading of such evidence will be a breach of the accused's Convention rights unless there are compelling reasons to restrict the right of access: Cadder [v HM Advocate [2010] UKSC 43], para 55. It is another thing if the evidence existed independently of those answers, so that those answers do not have to be relied upon to show how it bears upon the question whether the accused is guilty of the offence with which he has been charged. So far as the accused's Convention rights are concerned, there is no rule that declares that evidence of that kind must always be held to be inadmissible. The question whether it should be admitted has to be tested, as in domestic law, by considering whether the accused's right to a fair trial would be violated by the leading of the evidence."

Lords Dyson, Kerr and Matthew Clarke agreed with Lord Hope, as did Lord Brown in a separate judgment. Lord Brown drew attention to how the admissibility balancing decision would be made in England and Wales under s 78(1) of PACE.

See also the attenuation approach in R v Wittwer (discussed here 6 June 2008), and occasions where a consequential link may be dispensed with but evidence nevertheless excluded: R v Ogertschnig (discussed here 26 October 2008). Improprieties may taint evidence without there being a consequential link, and as the present case shows, improprieties may be irrelevant notwithstanding such a link.

The right to legal advice

When does a person who is questioned by the police have the right to legal advice?

There was a tussle over this in Ambrose v Harris, Procurator Fiscal, Oban (Scotland) [2011] UKSC 43 (6 October 2011), and it turned on whether the UKSC should merely keep pace with Strasbourg jurisprudence or whether it should do more. By doing more it would extend a rule excluding evidence beyond the extent currently recognised. The majority were of the conservative view: Lord Hope at 17-20, Lord Brown agreeing 73, Lord Dyson agreeing 88, 105, Lord Matthew Clarke agreeing 116. Lord Kerr dissented on this point, referring to the Ullah-type reticence 126 of the majority and to the duties of courts to resolve issues 129 [see R v Special Adjudicator, ex parte Ullah [2004] UKHL 26]. He also mentioned 126 the "characteristically stylish twist" given to Lord Bingham's oft-cited dictum in Ullah in Al-Skeini [2007] UKHL 26 by Lord Brown (and see my note on the dissent in this case in the Grand Chamber [2011] ECtHR 1093).

So that's settled: the UKSC follows Strasbourg jurisprudence and does not extend it. The relevant Strasbourg rule excludes all confessional statements made under detention in police stations before the suspect had an opportunity to obtain legal advice. Here there were, in addition to the settled approach, policy reasons for not extending this rule: Lord Hope at 15, 58, 60; Lord Brown at 78, 87; Lord Dyson at 99-105; Lord Matthew Clarke at 120. Strictly, I shouldn't say the rule "excludes" the evidence, because Strasbourg leaves admissibility to national courts, but the finding of a breach of the fair trial right through use of the evidence will inevitably lead to a ruling of exclusion to avoid that unfairness, so it comes down to the same thing.

In Ambrose incriminating answers to police questions had been given in three cases at times before detention in police stations and when the defendants had not been given an opportunity to obtain legal advice.

The three cases concerned respectively (Ambrose) roadside questioning before breath alcohol procedures were undertaken, (M) questions at the defendant's home aimed at obtaining admissions to a serious assault, and (G) the questioning of a handcuffed defendant during execution of a search warrant at his flat. The Art 6(3) rights apply to a person "charged", and this has been held to mean when the person's situation was substantially affected, when suspicion was being seriously investigated and the prosecution case was being compiled (Lord Brown at 62).

The Court unanimously held that although none of the statements were inadmissible by virtue of a rule, admission of G's statements would be a breach of his Convention rights because he was detained in coercive circumstances within the concept of "charged" in Art 6(3). The majority held there was no breach of Art 6 in admission of Ambrose and M's statements but that the admissibility issue should be referred back for determination because there was arguably an issue of fairness.

Lord Kerr, dissenting on Ambrose and M, held that admission of all the confessional statements would be in breach of an extended application of Art 6 because the police believed each defendant had committed an offence and the answers would be given in evidence, and in also in relation to G, he was in custody.

The Supreme Court referred, in addition to Strasbourg jurisprudence, to cases from Canada (R v Grant [2009] SCC 32, noted here on 18 July 2009 – Lord Brown calling its judgments "immensely long" (81)) – and the USA (Miranda v Arizona 384 US 436 (1966)), and of course to its own decision in Cadder v HM Advocate [2010] UKSC 43 (noted here 27 October 2010) concerning persons detained in a police station.

Just as people in Scotland may feel a little irked at having the UKSC decide points of their criminal law, so too – we might reasonably suspect – may the UKSC feel irked at having the Strasbourg Court decide points of UK law. Lord Brown at 86: "...whatever else one may say about the Strasbourg jurisprudence ...". Humpf. And in furtherance of that attitude there was a marvelous sneakiness at play here: G got the evidence excluded and so received the benefit of what was effectively an extension of the very rule the Court majority was professing not to be allowed to extend.