Posner gives us some holiday reading

It is impossible to have more fun than to spend a little time in the holidays reading Richard A Posner, Divergent Paths: The Academy and the Judiciary (Harvard University Press, Cambridge Mass., and London, 2016). Here is a snippet (p 13):

“Law schools will do almost anything to boost their ranking in U.S. News & World Report, which treats faculty-student ratio and number of library books as plus factors in the ranking, though they have little (library books virtually nothing) to do with the quality of legal education.”

And on the topic of judicial embrace of multifactor tests as aids to judicial decision making, which Judge Posner calls a common pretense of analytical rigour in adjudication, (p 117):

“Not only is the list of factors usually open-ended and therefore incomplete, but the factors are rarely given weights, and so unless all line up on one side of the dispute no decision can be derived from them; they are window dressing.”

And as a federal appellate judge, Posner has this to say about judicial disagreements (p 235):

“The problem of feuding federal judges would be solved in a trice if the Chief Justice summoned them to his office in Washington and told them to stop behaving like children.”

Well, I’m not trying to summarise what Posner says in this endlessly interesting book. We who are not Americans can easily see its relevance to our own legal environment.

Posner, who, to put it mildly, is one of the more intelligent judges, embraces Bayesian reasoning with conditional probabilities. A small glitch – surprising and ironic - occurs on pp 338-339 (if my Kindle's pagination is correct) in his illustration of why lawyers need to be able to understand DNA evidence. But never mind.

I have, over the years of writing this blog, referred to Posner on several occasions. His fearless brilliance is an inspiration for jurists, and his enthusiasm brings both joy and outrage. And laughter.

Provoking thought - a new issue of NZCLR

You can, on reading a new issue of a law journal, be provoked into thought. Not always, but the latest New Zealand Criminal Law Review, [2017] NZCLR 152-313 (freely available at the New Zealand Criminal Bar Association website) is a positive example.

I have found myself wondering about the following things:

Ink molecules stuck in paper fibres, bits and bytes: is the medium the message?

Is an electronic file a document? Why shouldn’t it be? Should the word “document” in a statute be construed electronically or functionally? In Dixon v R [2015] NZSC 147 the Supreme Court took a functional approach. It seems significant to me that the Court applied s 6 of the Interpretation Act 1999, which simply provides: “An enactment applies to circumstances as they arise.” This is the “always speaking” quality of enactments, discussed from an Australian perspective in a case note on Aubrey v The Queen [2017] HCA 18, by Dan Meagher. It matters not that at the time legislation came into force there were no electronic documents, because the question is whether in the relevant statutory context and in the light of its purpose, the word “document” should include an electronic file. This is the functional approach. Whether an electronic file actually exists in a determinable location is irrelevant to a functional approach. If the file can be read, saved, shared, and in some cases edited or annotated, it functions as a document. [Update: the functional approach is consistent with Ortmann v United States of America [2018] NZCA 233 (5 July 2018).]

The habit that lawyers have of finding difficulties where there are none can impede the social utility of legislation. In seeking to give effect to legislative intent the courts will try to keep the law as simple as possible. There is a risk that scholarship in a new area of law will, in anticipating judicial decisions, needlessly divert attention to irrelevancies. I am not saying that it has here, just that it might have. [And another update: the Supreme Court takes a functional approach: Ortmann v United States of America [2020] NZSC 120.]

We can’t be wrong about ourselves (can we?)

Another thing I have been provoked into wondering about is the inherent jurisdiction of courts. If the highest court in a hierarchy rules that inherent jurisdiction on a particular point exists, then that must necessarily be correct, unless the court failed to notice legislation that expressly excluded such jurisdiction. Where the highest court considers relevant legislation and interprets it as being consistent with the existence of an independent inherent jurisdiction, then that is the law. What point is there in arguing that the court was wrong?

This arose in discussion of Marwood v Commissioner of Police [2016] NZSC 139. There, the Supreme Court held that in a civil action for forfeiture of criminal proceeds a court has an inherent jurisdiction to exclude improperly obtained evidence. Prior to that it had been conventionally thought that in a civil case there is no jurisdiction to exclude improperly obtained evidence except in extreme cases. Central to the issue was the implications of s 30 of the Evidence Act 2006, which provides for when improperly obtained evidence may be excluded in criminal cases. The critical words are “This section applies to a criminal proceeding”. Does that mean there is no exclusion in civil cases, or is s 30 just setting out the method for the decision in criminal proceedings and being silent as to civil proceedings? The Supreme Court effectively answered those questions in Marwood.

Arguments about whether there should continue to be the inherent jurisdiction recognised in Marwood should now be addressed to the legislature, not to the courts. They will be policy arguments, not fine-grained arguments about statutory interpretation. And they would probably end up by concluding that a total prohibition on exclusion of improperly obtained evidence in this sort of civil case would be wrong, but that a statutory framework for the decision process, analogous to s 30, might be appropriate. It may not be, because the inherent jurisdiction gives the courts flexibility to develop a process appropriate to the needs of cases as they arise.

Are good people better than ordinary people?

This issue of the journal includes a clear and comprehensive summary of an important case on when recklessness is a component of mens rea. There are suppression orders still in place, so I don’t give the citation. But I would be more confident than the author of the case note seems to be that the decision applies generally, wherever an offence is not of absolute or strict liability but where liability is not expressly limited to intent or belief. I would also wonder why the court needed to say that a person is not reckless if they are honestly doing their best to comply with the law. Just unreasonably taking a known risk is the conventional way of describing recklessness. Has the threshold for recklessness been lowered by requiring people to do “their best” to comply with the law? Why is compliance with the law mentioned at all, when the traditional definition of recklessness simply asks whether the defendant's action in taking the known risk was reasonable? Don’t ask. Is "doing one's best" to comply with the law compatible with the taking of any risk of breaking the law? There is potential for jury confusion and requests for further explanations of the relationship between what it was reasonable for the defendant to have done and what a reasonable person doing their best to comply with the law would have done.

A good book about bad things

The journal includes book reviews, and I was pleased to favourably review Robert J Frater QC’s Prosecutorial Misconduct (2^nd ed, Thomson Reuters, Toronto, 2017). Editing has its perils: why did the editors changed my correct reference in footnote 19 to the ONSC to make it an incorrect reference to the ONCJ?