Fairness in joint trials - exclusion of evidence improperly prejudicial to a co-defendant: McNamara v The King [2023] HCA 36

In McNamara v The King [2023] HCA 36 the appellant had been tried jointly with one other defendant, and each blamed the other for the offending. Mr McNamara wanted to include in his evidence allegations of previous criminality by his co-defendant, but the judge ruled that the proposed evidence was inadmissible. This ruling was on the footing that the prejudicial effect of the evidence on the co-defendant outweighed its probative value for the defendant’s case.

Such a basis for excluding evidence is commonly found in evidence laws, and it functions to assist the judge in ensuring that the trial is fair. [1]

Mr McNamara submitted through counsel on this appeal that the judge had no such power in a joint trial. This was rejected unanimously by the Court in two judgments.

Gageler CJ, Gleeson and JagotJJ considered in some detail the interesting  [2] history of joint trials [25]ff. Included in this is a period during which it was unclear whether the supposedly unfettered right of a defendant to adduce otherwise admissible evidence was limited by the probative value vs prejudicial effect discretion [49]. The issue was settled by legislation [52]. This came down to the interpretation of the section mentioned at [59] and described in more detail at [1]:

“Section 135(a) of the Evidence Act 1995 (NSW) ("the Evidence Act") empowers a court to refuse to admit evidence, that is relevant and otherwise admissible in "a proceeding", if the probative value of the evidence is substantially outweighed by the danger that it might be unfairly prejudicial to "a party". The question in this appeal is whether "a party" includes a co-accused in a joint criminal trial. The answer is that it does. The Court of Criminal Appeal of the Supreme Court of New South Wales was correct so to hold, and the appeal must be dismissed.”

A joint trial is a proceeding and each defendant is a party, as is the prosecutor [62], and the exclusionary discretion applies [64]-[69], consistently with the operation of other relevant provisions [72]-[75].

Gordon and Steward JJ similarly analysed the legislation, and considered the on-going relevance of common law principles [92]ff, concluding at [109] that, consistently with dicta in other cases, “The existence of the discretion at common law to refuse to admit evidence coheres with the duty of the trial judge to provide an accused with a fair trial.”

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[1] We have a similar provision in s 8 of the Evidence Act 2006 [NZ]. In this, “proceeding” includes joint trials, and “the right of the defendant to offer an effective defence” is taken to mean the right to a fair trial: R v Moffat [2009] NZCA 437, [2010] 1 NZLR 701, (2009) 24 CRNZ 242, Bracken v R [2016] NZCA 79 (leave refused Bracken v R  [2016] NZSC 124), Ambler v R [2018] NZCA 245 at [41].

[2] I say “interesting” because the following points are among those mentioned: during the eighteenth century criminal proceedings changed from being essentially inquisitorial to essentially adversarial [25]; at common law a defendant could not give sworn evidence, the right to do so being introduced in 1891 (NSW) and 1898 (England) [26]; the exclusionary rule for when probative value of evidence was outweighed by its prejudicial effect was only developed in 1914 ([27], and see my note here on 8 October 2019, particularly at footnotes 6 and 7); the requirement to acquit if there was a reasonable doubt about guilt was “discovered” only in 1935 [27]; the indictment is a foundational and constant feature of the criminal trial throughout the centuries [28]; in a criminal trial there is one indictment, which may include more than one defendant, and the jury can only determine issues in that indictment [29]. While it has been common to tell juries that where there is more than one defendant charged in the indictment there are separate trials for each of them, this should really be phrased as there are separate “cases” for the jury to consider (cf [36]).

Juror or jury misconduct and miscarriage of justice: HCF v The Queen [2023] HCA 35

Disobedience to the judge’s instructions by both a juror and the jury were the basis for the appeal in HCF v The Queen [2023] HCA 35.

The instructions were to not use the internet, and to inform the judge if the jury became aware that any of their number had contravened that instruction. A juror had investigated the meaning of the alleged offences and the relevant sentencing levels, and had then told his fellow jurors what he had found out. The jury had not informed the judge of this.

These irregularities were only discovered well after the verdicts had been returned and the defendant (appellant) had been convicted of some of the charges.

Had these irregularities constituted a miscarriage of justice? If they had, what should the result of the appeal be?

The Court divided 3 -2.

The minority justices, Edelman and Steward JJ, decided that there had been a miscarriage of justice and that the issue of whether this had been “substantial” in terms of the proviso (allowing the appeal to be dismissed if the miscarriage was not substantial) should be remitted to the lower appeal court as it had not been argued on this appeal.

The majority, Gageler CJ, Gleeson and Jagot JJ, held, after close examination of the circumstances of the trial, that there had been no miscarriage of justice and therefore that the appeal should be dismissed.

The decision criterion for whether jury or juror misconduct amounts to a miscarriage of justice is set out in the majority judgment. Significantly, the majority held that if this sort of error had occurred it would of itself, without further inquiry, require that the appeal against conviction be allowed [7]. The test for identifying this sort of error is described as a “double might” test [6]:

“ … the test should be understood in terms of whether a fair-minded lay observer might reasonably apprehend that the jury (or juror) might not have discharged or might not discharge its function of deciding an accused's guilt according to law (which includes but is not limited to the requirement of impartiality), on the evidence, and in accordance with the directions of the judge. …”

Descriptions of the consequences of this test being met are set out at 11:

“… If the jury or juror misconduct would give rise to such a reasonable apprehension then, for that reason, the misconduct will involve a "failure to observe the requirements of the criminal process in a fundamental respect". In such a case, satisfaction of the reasonable apprehension test means that the "shadow of injustice over the verdict" cannot be dispelled, that the trial is "incurably flawed", that there has been a "serious breach of the presuppositions of the trial", and that "the irregularity [is] so material that of itself it constitutes a miscarriage of justice without the need to consider its effect on the verdict". [footnotes omitted]

The inquiry is not as to what might reasonably have been the effect of the misconduct on the actual jury that convicted the appellant ([12], referring to Weiss v The Queen (2005) 224 CLR 300 at 313-315 [34]-[38]). Rather, the inquiry is (my terminology here) objective. The perspective is that of a fair-minded and informed member of the public [13]. The facts that “inform” this fair-minded person are facts that are determined on the balance of probabilities [14]:

“On the facts to be found on the balance of probabilities, might a fair-minded and informed member of the public reasonably apprehend that the jury or a juror might not have discharged the function of deciding the appellant's guilt according to law, on the evidence, and in accordance with the directions of the judge?”

Mere disobedience by a juror or jury to a judge’s instruction is not in and of itself sufficient to give rise to a miscarriage of justice [48]. On close inspection of the facts here it could not be concluded that the disobedience was wilful [49]-[57], rather it was properly described as misconduct and irregular [59]. Further considerations, including the verdicts, took the issue no further. Speculation would not amount to a reasonable apprehension that the jury might not have discharged its function according to law and in accordance with the directions of the judge [69].

One can see that this fair-minded and reasonable observer is very well informed about the trial, and is not just some casual visitor to the public gallery in the courtroom. Really, I suggest, this person is an appeal judge, but in any event the focus is on the objectively assessed effect of the irregularity on the actual jury in the trial (the ‘this jury’ test [12]). Here, on the majority analysis, the convictions had not been demonstrated to have involved a miscarriage of justice, and therefore there was no occasion to consider the application of the proviso.

By what course of reasoning did the minority conclude that there had been a miscarriage of justice? Following Weiss, the occurrence of “any departure from trial according to law, regardless of the nature or importance of that departure” is a miscarriage of justice ([75], citing Weiss at [52] with emphasis in the original). The only qualification on this should be that the departure must be capable of affecting the result of the trial [78]. Other qualifications have been stated, as reviewed at [76]-[77], but reconciliation of them did not need to be attempted in the present case [79], as here a failure to ensure that the rules of procedure and evidence were strictly followed amounted to a miscarriage of justice [82]. While there is a range of irregular behaviour, from the trivial and inconsequential to the serious kind that will always constitute a substantial miscarriage of justice (such as proof of  apprehended bias), the present case is one of the many where irregular behaviour or misbehaviour will have the capacity to prejudice the jury’s consideration of the defendant’s case and where the Crown therefore has the burden of satisfying the appellate court that there was no substantial miscarriage of justice [84].

Here, on the minority view, there was capacity for the misconduct to affect the jury’s consideration of the defendant’s case [113]-[123]: the acts of disobedience could not be described as merely trivial or of no moment, their effect on the jury’s reasoning could not be known, the Crown had correctly conceded that if the misconduct had been known before the verdicts were returned the judge would almost inevitably have discharged the whole jury (but see the majority judgment at [45]-[46]), the disobedience of the jury was capable of casting a shadow of injustice over the whole verdict, and the discussion of the potential sentences for the alleged offending was a denial of procedural fairness to both the defendant and the Crown. Consequently, in the judgment of the minority, the existence of the miscarriage required consideration of the application of the proviso, and the matter should have been remitted to the Court of Appeal for determination of that issue.

The minority’s need, upon concluding that there had been a miscarriage of justice, to consider the application of the proviso (that is, to decide whether the miscarriage of justice had been substantial) is in contrast to the majority’s view of the consequence if it had found that there had been a material miscarriage of justice. The majority would have regarded the misbehaviour, had it had an objectively perceived effect on the verdicts of guilty, as of itself requiring the convictions to be quashed. The difference emerges from differing treatments of Weiss.

Luring, minimum sentences and constitutionality in Canada: R v Bertrand Marchand, 2023 SCC 26

The Canadian offence of luring has been analysed in R v Bertrand Marchand, 2023 SCC 26 (3 November 2023). See s 172.1 of the Criminal Code, reproduced at [9] of the joint judgment. Additionally, the mandatory minium sentences which the legislature had applied to it were held to be unconstitutional as they were in breach of s 12 of the Canadian Charter of Rights and Freedoms.

In deciding the constitutional point, the Court applied the method it used in its decision in R v Hills, 2023 SCC 2 (noted here on 31 January 2023). The essential fault in the legislation was that it applied minimum sentences to conduct that was only remotely related to the heart of the offence [108] so that when reasonably foreseeable scenarios that would come within the defintion of the offence were considered the result would be sentences that were so excessive as to outrage standards of decency [109].

In essence, the luring offences defined in s 172 involve using telecommunication to communicate with persons who are or who are believed to be under ages specified in three categories, for the purpose of facilitating the commission of offences with respect to those people as specified for each age category. These are what can be called grooming offences although without any need for sustained contact [13].

Comparable offences are in s 131AB of the Crimes Act 1961 (NZ), and they carry a maximum, but not a minimum, sentence.

The discussion in Bertrand Marchand of the wrongfulness of luring ([34]ff) will be relevant for sentencing purposes in similar jurisdictions. Both gravity of the offending and the moral blameworthiness of the offender - an assessment of the personal aggravating and mitigating features - are relevant ([71]ff). In the absence of direct proof of actual harm, harm can be inferred [76]. Grooming is one aggravating factor, and others (listed non-exhaustively) are the character of the communication [77], deceit [80], abuse of a position or relationship of trust [82], and the age of the victim [85]. Since luring will often be accompanied by other offending, sentencing will have to address whether to impose concurrent or cumulative sentences, and the totality principle ([89]ff).

JFK - 4 bullets fired in Dealey Plaza?

Allow me to wander a bit from the main concern of this site, out of respect for the sixtieth anniversary of the famous and infamous assassination ...

In a plain, elegant prose, of a kind that is sometimes written by the best graduates of the greatest universities, the Warren Commission summarised the reason for its own existence:

“   The President’s car which had been going north made a sharp turn toward the southwest onto Elm Street. At a speed of about 11 miles per hour, it started down the gradual descent toward a railway overpass under which the motorcade would proceed before reaching the Stemmons Freeway. The front of the Texas School Book Depository was now on the President’s right, and he waved to the crowd assembled there as he passed the building. Dealey Plaza - an open, landscaped area marking the western end of downtown Dallas - stretched out to the President’s left. A Secret Service agent riding in the motorcade radioed the Trade Mart that the President would arrive in 5 minutes.

“   Seconds later shots resounded in rapid succession. The President’s hands moved to his neck. He appeared to stiffen momentarily and lurch slightly forward in his seat. A bullet had entered the base of the back of his neck slightly to the right of the spine. It travelled downward and exited from the front of the neck, causing a nick in the left lower portion of the knot in the President’s necktie. Before the shooting started, Governor Connally had been facing toward the crowd on the right. He started to turn toward the left and suddenly felt a blow on his back. The Governor had been hit by a bullet which entered at the extreme right side of his back at a point below his right armpit. The bullet traveled through his chest in a downward and forward direction, exited below his right nipple, passed through his right wrist which had been in his lap, and then caused a wound to his left thigh. The force of the bullet’s impact appeared to spin the Governor to his right, and Mrs. Connally pulled him down into her lap. Another bullet then struck President Kennedy in the rear portion of his head, causing a massive and fatal wound. The President fell into Mrs. Kennedy’s lap.”

- Report of the President’s Commission on the Assassination of President John F. Kennedy (“the Warren Commission”, or “the Commission”), U.S. Government Printing Office, Washington, 1964, p 3.

(Note: Governor Connally’s evidence is more detailed concerning his body position when hit: upon hearing a rifle shot he instinctively turned to his right because he thought it came from over his right shoulder, and as he could not see the President he started to turn to the left but didn’t complete this turn as he felt “something strike him in the back”, Warren Commission p 49).

That happened on 22 November 1963 in Dallas, Texas at about 12.30pm. It was 5.30am on the 23rd in New Zealand, and those horrible events were reported on our morning radio news bulletins. We still claim to remember what we were doing when we heard the news.

The Warren Commission’s Report was reviewed in 1979 by the House of Representatives Select Committee on Assassinations (the Committee). The Committee came to the same conclusion as had the Commission about the shots, except that in the light of additional information from accoustics experts it added that there was a high probability that there were four shots in all.

The Commission’s Report had been doubted by many people, indeed currently a majority of Americans, for the amount of damage it required one bullet to have caused. The Commission decided that the bullet that struck the President in the back and exited near his necktie was the same bullet that struck the Governor in the back. This bullet has been sarcastically dubbed the magic bullet. So the Committee’s fourth shot made room for a division of labour: one shot hit President Kennedy in the neck, exiting by the knot of his tie, and the other hit Governor Connally.

This possible - or “highly probable” - fourth shot raised questions about where it was fired from, and what sort of conspiracy was involved.

Nowadays we can all inspect Dealey Plaza through Google Earth or Apple Maps. We can speculate about where a second gunman might have been, and whether the shot he fired hit anything.

At first glance it would be natural to think that the large hole in the back of the President’s head was an exit wound, and the shot was fired from in front of him. But, if that happened, where was the entrance wound? And careful reading of the medical evidence is convincing: the shot entered the lower part of the back of his skull just to the right of his spine, and, being angled acutely because at this point the President had his hands up by his throat and was leaning forwards and sideways towards the left, the bullet largely (it was fragmented after entry) exited approximately above the President’s right ear. The force of this tore out a large part of the back of his head, spraying a plume of blood forwards.

The Zapruder film, with the camera operating at a speed of 18.3 frames per second (Warren Commission, p 49) suggests that the large wound was in the front of the President’s head, but it was not. Modern television is transmitted at approximately 60 images per second, so it is necessary to make some allowance for misleading appearances in the older format. The Commission used the Zapruder film mainly to determine time intervals between shots.

If I had to place a second gunman I would have said he was just inside the entrance to the pedestrian walkway next to the Commerce Street underpass. The first open bay in the wall between the walkway and the road (best viewed in Apple Maps) should have given an ideal view of the presidential car, which would have appeared to have had minimal lateral movement as it was approaching the shooter directly. This corresponds to the view from the “snipers nest”in the Book Depository, from which the car would have been retreating in a straight line.

But there are difficulties with that. Traffic was slow or stationery, and occupants of cars would have seen the gunman. And Mr Tague, who stopped his car partly on the grass between Commerce Street and Main and got out to see what people were waiting for, would have been standing very close to the gunman’s line of sight. Indeed, Mr Tague was so close to a line between the Book Depository and the pedestrian underpass that he was struck in the face by a chip dislodged from the Main Street curb either by a bullet fired from the Book Depository that missed both the President and the Governor, or by something else that was dislodged by such a bullet.

Supporting the second gunman theory is information onlly published this year (2023) by Paul Landis (“The Final Witness”, Chicago Review Press, 2023) who had been a security officer behind the presidential car. He says that when the cars arrived at the hospital he saw a bullet on the top of the back of the seat where the President had been sitting, where the seat meets the body of the car. He put it in his pocket so that it would not be souvenired by approaching people, and took it in to the emergency room where he put it on to the stretcher which still, at that point, contained the President. Previously, this bullet was thought to have been retrieved from the stretcher used for Governor Connally after it had been put, with the President’s, in the corridor outside the emergency rooms. If this new information is accurate it is consistent with the throat wound being an entrance wound, exiting in the upper back and landing in the position it was allegedly found.

There were many eye witnesses, or at least people present, and the murder was captured on film. The Commission was not acting as a court, so was not limited to admissible evidence, but rather was  functioning “as a factfinding agency committed to the ascertainment of the truth” (p xiv). So much information, so much uncertainty, or, more realistically, so much information and a bit of uncertainty. But enough of the “how”, and let’s not get started on “who” any conspirators might have been.

Expert opinion evidence - applying specialised knowledge: Lang v The Queen [2023] HCA 29

We all know how irritating philosophers can be. What would they make of this: “Expert evidence need not be opinion evidence”?

Most statements about the world outside our own bodies are opinions. We can only opine about the reality that casts the shadows on the wall of Plato’s cave. But law is not philosophy.

The sentence quoted above is from Lang v The Queen [2023] HCA 29, per Kiefel CJ and Gageler J at [5]. The case is partly about the sufficiency of proof of guilt, and partly about the admissibility of expert opinion evidence. It is on the latter point that Kiefel CJ and Gageler J wrote, “to elaborate on the common law principles” [4]. Perhaps these judges read the judgments of their colleagues (Gordon and Edelman JJ, who jointly dissented on the application of the law to the evidence in this case, and Jagot J who wrote separately agreeing with the conclusion of Kiefel CJ and Gageler J that the challenged evidence here was admissible) and decided that a bit more was needed.

Principles developed under Australia’s uniform evidence legislation apply also where the law on the admissibility of expert opinion evidence is common law [11]-13]: [1]

“Those principles require that, in order to satisfy the condition of admissibility that the opinion of an expert be demonstrated to be based on specialised knowledge or experience, the inference drawn by the expert which constitutes the opinion be supported by reasoning on the part of the expert sufficient to demonstrate that the opinion is the product of the application of the specialised knowledge of the expert to facts which the expert has observed or assumed. … it is enough that the opinion be demonstrated to be based substantially on that specialised knowledge … Reasoning sufficient to demonstrate that the opinion formed by an expert is the product of the application of his or her specialised knowledge need not be limited to formal induction or deduction. Speculation, however, is not reasoning … Nor is intuition. [The expert’s judgement] requires the justification of reasoned explanation when its conclusions are controverted.” 

The utility or value of an opinion can be addressed in two separate ways, reflecting respectively admissibility and weight: the sufficiency of the demonstration that the opinion is the product of the application of specialised knowledge, and the extent to which the expert’s reasoning is clear and convincing. [15] On the admissibility question, lack of cogency (persuasiveness) is beside the point, [16] or at least it is unless a separate challenge to admissibility is made on the grounds that the probative value of the evidence is exceded by its illegitimately prejudicial effect [17]. Such a separate challenge was not made in this case [18], [25].

Here, the issue was whether the expert had drawn substantially on his specialised knowledge in engaging in the process of reasoning that led to the formation of his opinion.

The majority held that he had. His evidence was a process of inferential reasoning, throughout which he had compared what he had seen - a single stab wound with indicia of multiple thrusts and a turning of the blade in the wound - with what he had previously seen and read of the features of relevant but not identical cases involving suicide and assault [24], [469]. 

In dissent, Gordon and Edelman JJ held that the expert had not shown how his expertise provided a substantial basis for any connection between the facts and the opinion that he expressed [242]. Instead, the asserted connection was speculative [239].

A key difference in the interpretation of the expert’s evidence here is that while the dissenters attached significance to the witness’s description of the wound as “odd”, indicating that the witness was therefore forced to speculate, the majority understood the witness to have used the word “odd” in the sense of not fitting a standard pattern, and the witness was properly applying what he had previously seen and read about to what he observed [23].

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[1] We can expect the reverse to apply in New Zealand: principles developed at common law will inform the case law under the Evidence Act 2006, s 25.

When due process fails - the importance of legal representation: Watson v R (Bahamas) [2023] UKPC 32

A cluster of embarrassing errors in the Court of Appeal of the Commonwealth of The Bahamas led to a successful appeal by the offender in Watson v R (Bahamas) [2023] UKPC 32. I say “embarrassing” because the errors were so fundamental. But, strange to say, oversights of this nature can easily occur.

The appeal Court had quashed a conviction for murder, substituted manslaughter, and in place of the original sentence of death imposed 50 years’ imprisonment. This sentence was imposed without hearing submissions on what the appropriate sentence should be.

There was, therefore, a breach of natural justice amounting to a serious breach of procedural fairness [19]. This was compounded by the Court’s failure to give reasons for the 50-year sentence  [39]. The Court had not accounted for the difference in the law of The Bahamas between murder (for which recklessness as to death is not sufficient for liability) and manslaughter [30]-[31], [35]. Additionaly, the Court had failed to give the offender credit for time spent in custody [44]. Essentially, the Court had acted on too little information.

But confidence in the Court of Appeal’s integrity is reflected by the Privy Council referring back to the Court of Appeal the sentencing determination. In a sense this allows the Court of Appeal to assess the effects of its own error.

The ease with which a court can slip into fundamental error is also illustrated by an appeal (now of historical interest) from New Zealand: Taito v R (New Zealand) [2002] UKPC 15 . Essentially, the Court of Appeal had been over-burdened with administrative tasks, and these seem to have got in the way of the Court’s perception of justice. Legislation - since repealed and replaced [1] - had required the appeal court, through its Registrar, to determine the legal aid applications of prospective appellants in criminal cases. This requirement was accommodated by the practice of the Registrar referring the issue to three judges of the Court who would assess the merits of a proposed appeal and, if no arguable ground upon which the appeal might succeed could be discerned, the Registrar would be directed to refuse legal aid and the appeal would be dismissed without a hearing. This was felt to be most unsatisfactory by many judges, and the complex policy considerations that had come into play in the environment of fiscal constraint were mentioned by Sir Ivor Richardson in “The Courts and Access to Justice” (2000) 31 Victoria University of Wellington Law Review 163. [2] The practice that had been adopted is described in Taito. Although pragmatic, the adopted procedure did not comply with statutory requirements for the hearing of appeals. In none of the 12 consolidated appeals in Taito had the Court heard argument, the appellants were not present or represented, and the judge delivering the determination either had no knowledge of the available information or had previously concluded that legal aid should not be granted as there was no arguable case. There was no exercise of judicial judgement in the disposal of the appeals. Where applicants for legal aid had sought review of their refusal, review was refused without reasons and without requests to be present being met.

The procedure that had been used by the Court of Appeal in Taito was a well-intentioned attempt to find a practical way of dealing with unmeritorious appeals, but as the Board observed, decisions as to merit could only be made after observance of procedural due process. Further, failure to supply some of the appellants with copies of the documents considered by the Court was also a source of discrimination because such an error could not have occurred had the appellants been represented by counsel. This, said the Board, was “contrary to fundamental conceptions of fairness and justice.”

Unrepresented litigants take up a disproportionate amount of the courts’ time, a point noted by Sir Ivor in his article published in 2000 and referred to above, and he added that refusal of legal aid can be a false economy. Representation by counsel is a way of promoting procedural fairness, and absence of representation can result in rights being rendered meaningless. It is easy enough for courts to make fundamental errors, as is illustrated by Watson, above, and representation by counsel cannot be regarded as an indulgence: it is a protection, although not a guarantee of compliance with due process.

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[1] See the Legal Services Act 2011.

[2] Preliminary screening of cases where an appellant sought legal aid by a panel of three judges of the Court of Appeal was a long standing practice, referred to in an earlier article by Sir Ivor: “The Role of an Appellate Judge” (1981) 5 Otago Law Review 1 at 5: “Coming next to criminal cases, because there are so few that involve only matters of law, leave to appeal is ordinarily required. In most cases, too, legal aid is sought and there is a preliminary screening by three of the judges to determine that. If any of the three has any reservations about any of the matters raised, for example, as to the directions given in the summing up, or as to the admission or rejection of evidence, or as to the sentence, then legal aid is granted and the appeal is set down for hearing. If not, legal aid is refused and the application for leave to appeal is called and dismissed without a hearing, unless in the meantime, for example, because of matters raised in further written submissions, the Court decides to hear full argument.” Plainly, unrepresented defendants were expected to know a lot of law.