Fair process and choice of mode of trial

In S(SC 36/2018) v R [2018] NZSC 124, (the Court of Appeal decision is noted here on 5 May 2018) the defendant had not been told that a judge-alone trial was available, and he was convicted following trial by jury.

The Supreme Court delivered two judgments: William Young, O’Regan and Ellen France JJ jointly (delivered by Ellen France J, paras [1]-[86]), and a concurring judgment by Glazebrook and Arnold JJ (delivered by Glazebrook J, paras [87]-[99]). The appeal was dismissed.

The error was not jurisdictional ([46], [91]), for the court had jurisdiction to try the charges by either mode, and the error did not render the jury trial a nullity. It was a procedural error, and the issue on appeal was whether it had rendered the jury trial unfair. Was it unfair to try the defendant by jury, when he had not been aware of his right to a judge-alone trial?

The jury trial had been conducted fairly ([34], [96]). The defendant would have been advised to elect trial by jury ([54], [98]). There was no reason to think this was unsound advice ([56]). He had not demonstrated that he would have rejected that advice at the time it was given. On these facts there was nothing to suggest that an unfair procedural course had been taken ([83], [98]).

On different facts, if a defendant had been unaware of the right to elect trial by jury, that would amount to loss of an important statutory right, and such an error might, depending on the circumstances, amount to an unfair process rendering the judge-alone trial unfair ([99]).

So there could be circumstances where absence of advice on election of mode of trial would result in unfair process, but those did not exist in the present appeal ([96]).

There are some areas of vagueness. As far as nullity is concerned, a threshold is mentioned ([45]-[46]). This suggests some flexibility in the concept of nullity, and the cases cited indicate differing approaches and various circumstances. Nothing was resolved about that in this appeal, so the references to some of the other cases could be called excessive and perhaps even confusing. Cases interpreting different legislation need to be shown to be relevant, and older references to the overlapping of nullity and miscarriage of justice, and to degrees of nullity, do not seem relevant to s 232 in which attention is confined to three alternative ways in which a miscarriage of justice may occur: where there is a real risk that the outcome of the trial was affected, or where the trial was unfair, or where the trial was a nullity. Too much discussion of authorities calls to mind the amusing confession of having heard, “second hand”, that “a former clerk once referred to one of my judgments as ‘over-researched as usual’”: see Justice Susan Glazebrook, “Academics and the Supreme Court” (2017) 48 VUWLR 237 at 239. In this case it's the other judgment that seems rather overwrought.

Case Note: Onus and standard of proof that evidence was improperly obtained: Kearns v R [2017] NZCA 51, [2017] 2 NZLR 835

Criminal lawyers in New Zealand are familiar with s 30 of the Evidence Act 2006 which concerns the admissibility of improperly obtained evidence. Its first two subsections are as follows, and this note focuses on (2)(a):

“(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if—

(a) the defendant or, if applicable, a co-defendant against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or

(b) the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.

(2)The Judge must—

(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and

(b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice.”

On the issue of whether the evidence in question was improperly obtained, is there an onus on any party, and is there a standard to which the issue must be decided? The distinction between the terms onus and standard must be borne in mind. An onus, or as it is also called, a burden, is on the party that has an obligation to prove something. A standard is the level of proof or satisfaction required to be established by the party having the onus. On the ultimate issue of guilt in criminal cases, the onus or burden is (usually) on the prosecution and the standard is beyond reasonable doubt. Where admissibility is in issue, the decision may involve both determination of facts – a matter of proof – and consideration of those facts to decide whether impropriety existed – a matter requiring an evaluative assessment.[1]While there have been dicta[2]that suggest that it is not appropriate to apply a standard to the exercise of judgement, subsection (2)(a) seems plainly to apply the standard of the balance of probabilities to whether, as a matter of judgement, proved facts establish impropriety. Both the determination of the facts, and the evaluation of them, are subject to this standard.

Ordinarily, the party that asks the court to do something has the onus of satisfying the judge that it should be done. And ordinarily, technical legal terms have their usual meaning. So on first blush it would seem that the defendant (or, if applicable, a co-defendant) who asks the court to exclude evidence which is otherwise admissible, on the grounds that it was improperly obtained, has the onus of persuading the court that the evidence was improperly obtained. The standard is said to be on the balance of probabilities.[3]Even if it is the judge who raises the issue, the onus and standard should not change.

But in this context the phrase “on the balance of probabilities” could mean “on the preponderance of probabilities”. Here, preponderance means one scenario is more likely than the other, including where one reaches the balance of probabilities fixed standard, but also including cases where the more likely scenario is nevertheless below the balance of probabilities standard. This extended meaning of preponderance can be relevant because the judge is forced to make a decision. Whichever of the alternative scenarios is the most probable wins, even if both are less likely than not. In cases that may occur only relatively rarely there is another problem: what should the decision be if there is no reason to prefer one version of the facts to the other? Both versions may appear reliable, or they may seem equally unreliable. Here there is no preponderance of probabilities, and commentators have called this the equilibrium problem. A sensible solution to such a problem would be to refer to the onus of proof: equilibrium means the party with the onus has failed to persuade the judge to rule in its favour. So, does the absence of reference in s 30(2) to an onus mean there is no onus, or is an onus implied? And if an onus can be implied, is it always on one party, or can it shift depending on what the judge perceives as the justice of the case?

At an early stage commentators thought there was no onus, and that therefore equilibrium was a problem.[4] Priestley J recognised this in R v Hanford,[5]a case where the witnesses on each side seemed equally credible. The obligation to make a decision without an onus to resolve the equilibrium led his Honour to observe that this legislative framework infringed “the constitutional right of a judge, in rare cases, to be unsure”. If one respectfully doubts that there is such a constitutional right, preferring to say that litigants have a right to have judges decide their issues, it could still be said that a legislated requirement for a finding, in the absence of an onus, is an interference with the independence of the judiciary, even, in cases of equilibrium, to the extent of potentially requiring dishonesty. Certainly it is acceptable, and common, for the legislature to tell judges what matters to take into account, and even what matters are important, but what Priestley J found objectionable was the forcing of a judge to make a decision, in circumstances where a decision couldn’t be made.

In the light of this difficulty it would be worth re-considering the interpretation of these subsections. This is not to say that these issues matter in most cases, where decisions are relatively easy and outcomes would be the same regardless of onus, balance, and the imperative to decide. Many cases almost decide themselves, at least on the issue of impropriety, and it is not unusual for prosecutors to concede the point as a preliminary to contesting the balancing decision of admissibility.

In Kearns v R[6]the appeal against a ruling that evidence obtained in a vehicle search was admissible was allowed to the extent that the issue of admissibility was remitted to the District Court for further examination of the evidence and further findings of fact. This was necessary because the judge had failed to fully examine the lawfulness of the search and the extent of impropriety. The Court of Appeal’s mention of the issue of onus was therefore cursory, particularly because the Court was discussing the rather more interesting issue of the risk that the initial approach by the police was racially motivated. It was noted at [40] that, “Once a foundation is established, subs (2)(a) obliges the court, ideally with the assistance of counsel, to elicit the evidence necessary for a finding to be made.” At [37] the Court rejected a submission that it was for the prosecutor to prove that the search was lawful, once the issue was raised:

“The legislative history of s 30 demonstrates that Parliament specifically rejected imposing the burden of proving propriety on the prosecution. Parliament chose not to follow the Law Commission’s proposed draft in that respect ... . The correct approach is that neither party carries the onus. Onus of proof language does not make sense where the judge has a duty to make a positive finding. The judge must choose, as best he or she can on the evidence, which of the scenarios (proper or improper) is the most probable and make a finding accordingly. ....” [footnote omitted]

In the context of ordinary principles of interpretation, and of Hanford and similar cases, it is not controversial that the prosecution does not (always) have the onus of proving propriety. What stands out, however, is the claim that “Onus of proof language does not make sense where the judge has a duty to make a positive finding.” One would have thought, with respect, that an onus is particularly relevant where a finding has to be made, especially in those difficult cases of equilibrium. Perhaps the Court meant to say, “Standard of proof language does not make sense where the judge has a duty to make a positive finding”, which would be true but this revision does not fit the context. Be that as it may, the Court went on to emphasise that a choice must be made, as best as it can be, between the scenarios. One alternative must be more probable than the other, regardless of any standard. This seems to amount, in those difficult cases, to forcing a fiction of unequal likelihoods on the judge. Further, it requires the judge to conclude that evidence was improperly obtained just because that is the more probable scenario, even if the probabilities of each scenario are well below the standard of the balance of probabilities. The Court may have been taking the phrase in (2)(a), “on the balance of probabilities” to mean “on the preponderance of probabilities”.

It is respectfully suggested that the ordinary interpretation, mentioned earlier in this note, is to be preferred. It conforms with common sense as to onus, it applies the usual meaning of the balance of probabilities as a standard rather than a preponderance, it does not involve an equilibrium problem, it does not impose a fiction on judges, it does not compromise judicial independence, and it does not require highly unlikely allegations of impropriety to be accepted. If, however, a permanent onus on the defendant who seeks to have evidence excluded is thought to go too far, it can still be noted that the legislature’s refusal to place a universally applicable onus on the prosecutor, coupled with the silence of the provisions on the question of onus, does not exclude the use of an onus as the judge sees fit in the circumstances of a particular case.[7] 

[Update:] A shifting onus is consistent with the phrase in (2)(a), “whether or not”, which allows for the possibility that the prosecutor may succeed in satisfying the judge on the balance of probabilities that the evidence was not improperly obtained. The Law Commission has noted opinions to the effect that s 30 is biased towards holding improperly obtained evidence to be admissible, and has referred in this context to the equilibrium problem as illustrating that the party with the burden of proof (assumed to be the defendant) may fail to meet the standard of the balance of probabilities[8]. This appears to overlook the argument presented here.

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[1] The phrase “evaluative assessment”, is used in Marwood v Commissioner of Police [2016] NZSC 139, [2017] 1 NZLR 260 at [46] to describe the process of assessing the appropriateness of a remedy for unreasonable searches, distinguishing it from the exercise of a discretion. Illustrations of the use of evaluation include assessing whether rights have been waived in the context of police interviews: Perry v R [2015] NZCA 530 at [32], the decision by a jury on the significance of propensity evidence: R(CA477/2014) v R [2015] NZCA 394at [23], [29], and the choice of an appropriate sentence: R v Cunnard [2014] NZCA 138 at [13]. An appeal against an evaluative assessment may involve the appellate court substituting its assessment for that of the court below. Where the basis for alleged impropriety is unfairness in the way the challenged evidence was obtained (s 30(5)(c)), an evaluative assessment will be required, as is illustrated on appeal in King v Police [2018] NZHC 1213 at [27]-[34] concerning a breach of the rules for taking statements, and in R v Alsford [2017] NZSC 42, [2017] 1 NZLR 710 at [38] as to breach of privacy.

[2] For example, R v Leitch [1998] 1 NZLR 420, 428, (1997) 15 CRNZ 321, 327 (CA) referred to in Simon France (ed) Adams on Criminal Law – Evidence (online looseleaf ed, Thomson Reuters) at ED2.02(2). The evaluation for impropriety can be straightforward, for example evidence obtained in an unlawful search will usually be obtained improperly, except where the unlawfulness is minor or technical: R v Williams [2007] NZCA 52, [2007] 3 NZLR 207, (2007) 23 CRNZ 1 at [21]-[23]. Often, a breach of the law can be established by proof of facts and without a further process of evaluation, but where reasonableness has to be assessed, for example in considering the adequacy of grounds for an action, evaluation will be necessary.

[3] The expression “the balance of probabilities” is discussed extensively in Z v Dental Complaints Assessment Authority [2008] NZSC 55. It is not a flexible standard (per Elias CJ at [28], Blanchard, Tipping and McGrath JJ at [101], Anderson J “largely in agreement” with the joint judgment [146]), and it means more likely than not (per Elias CJ at [28], joint judgment at [102]).

[4] 
     Mahoney et al, The Evidence Act 2006: Act and Analysis (2007, Brookers Ltd) at EV 30.06(1). The passage in Adams on Criminal Law – Evidence, above note 2, at EA30.06(1) has been to similar effect.

[5] R v Hanford HC Auckland CRI-2007-057-1922, 24 July 2008 at [8].

[6] 
     Kearns v R [2017] NZCA 51.

[7] Flexibility is apparent in pre-Kearns dicta. In R v Follas HC Rotorua CRI-2009-077-1516, 22 November 2010, at [37] Wylie J noted and agreed with Priestley J in Hanford at [82]-[84] (including the observation that s 30(2) is ambiguous on whether the defendant, or neither party, bears an onus), and considered that the onus should be on the prosecutor (at [38]). This was noted in, and is inconsistent with, Kearns (at [37]). It may be that in Kearns it would be easier for the prosecutor, than for the defendant, to establish why the police approached the car.

[8] 
     NZLC R142 The Second Review of the Evidence Act 2006 (28 February 2019), p 134 at [7.52] and footnote 43.