Reflections on Lundy

Good to see the Court of Appeal’s judgment in Lundy v R [2018] NZCA  410 (9 October 2018) delivered at last.

It’s one of those “world-famous-in-New Zealand” things: a double homicide that was always a whodunit. I don’t comment on the decision, because the case may not be over.

Some points do occur to me, however.

The appeal was determined under the old criteria for deciding conviction appeals (the new ones are here). Would the decision have been the same under the new law? Are the approaches in Bain and Matenga the same? See my notes of 11 May 2007  here and here, 9 July 2009 here, 20 July 2009 here.

To what extent would this illustration of the way conviction appeals are decided influence the future Criminal Cases Review Commission (CCRC) in its decision whether to refer cases to an appeal court? The current Bill proposing the establishment of the CCRC is here, and the referral criteria are in clause 17.

How appellate courts should approach conviction appeals is surprisingly unclear. Today the High Court of Australia corrected the Supreme Court of Western Australia on this: Rodi v Western Australia [2018] HCA 44 at [37], and, also today, the New Zealand Supreme Court granted leave to appeal on whether a conviction appeal after a judge-alone trial requires the appellate court to adopt a review approach or to substitute its view of the evidence for that of the trial judge: Sena v Police [2018] NZSC 92 (leave granted).

[Update: On 6 May 2019 the Supreme Court granted Mr Lundy leave to appeal: [2019] NZSC 45. Leave was limited to the proviso issue. We will have to wait to see whether there was an error made by the Court of Appeal insofar as it may have failed to consider the cumulative effect of the - admittedly, individually weak - inferences that could have supported the defence case. Could they, in combination, have raised a reasonable doubt? On this point we may recall how the reasoning of Ian Binnie in the Bain compensation case was criticised for (allegedly) not considering in combination points that supported the Crown's case. Place your bets. As any Bayesian bookie will tell us, if - for the sake of argument - a reasonable doubt exists when P(G) = 0.94 or less, then to move from a prosecution case that established guilt to P(G) = 0.99 to get to a reasonable doubt, you would have to accept defence evidence which, taken overall, was at least 6 times more consistent with innocence than with guilt. On the fairness side of the coin, broadly speaking, the issue would be whether there was a real risk that the wrongly admitted scientific evidence affected assessment of the probative value of the other evidence in a more than trivial way, by causing the jury to over-estimate the probative value of the evidence against the defendant or to under-estimate the probative value of the evidence that favoured the defendant.]

[Another update: after the Supreme Court delivered its judgment, I discuss the outcome here.]

When "must" a jury find a defendant guilty?

It is wrong for judges to compose, for use by juries in reaching verdicts, question trails that include directions that a verdict of guilty must be returned. For example, a question might take the form, “if [this question is answered “yes”] find the defendant guilty.”

Why is this wrong? A jury may be told when they must acquit, but never that they must convict. This is a safeguard against unconscionable prosecutions, where, although strictly speaking, the jury might be satisfied that the prosecutor has proved all the necessary elements to establish guilt, nevertheless it would be morally wrong to find the defendant guilty. The safeguard is so important that it is sometimes described as having constitutional importance. I have discussed this on 20 December 2013, here, and see also my note of 27 October 2006, here.

Yet it is wrong, at common law, to mention this option to the jury. Counsel cannot ask the jury to ignore the law. The law allows, but does not refer to, conscience verdicts. The subject belongs to jury-room discussion, into which a court will not inquire (as distinct from some aspects of jury-room discussion that might be the subject of judicial inquiry, for example to ascertain whether the jury has been improperly influenced).

Little appears to be known at the bar about conscience verdicts. [Update: see the references in S (SC 36/2018) v R [2018] NZSC 124 at [76], noted here on 22 December 2018.] For example, in De Soto v R [2018] NZCA 366, where the appeals were properly dismissed, no one raised the issue about the form that the question trail had taken. I do not suggest that any consequence followed from this in the circumstances of this case, as there does not appear to be anything about it that would raise a moral question about the appropriateness of findings of guilt. So the omission was not an error, and counsel may well have considered the point but correctly decided not to raise it in this particular appeal.

I just have a niggle with the question numbered 8 in [15] of De Soto: why is the instruction, in the event of an affirmative answer, to go on to question 9? The questions follow those set out in Ahsin v R [2014] NZSC 153 at [140], but they are put in the way designed to emphasise the Crown's burden and standard of proof. Ahsin requires a reasonable possibility that each of the following exist: demonstration of withdrawal, steps to undo encouragement, those steps being all that reasonably could have been done, and those reasonable steps having been taken in a timely way. Absence of a reasonable possibility that any one of these requirements has been met is sufficient for the defence to fail.

Also of interest in De Soto is the availability of the defence of withdrawal when a defendant is charged with importation of a drug, notwithstanding that the defendant may have been a principal offender through instigating the importation by placing an order with an overseas supplier.