Rights consistent reading-down of the three strikes sentencing legislation

Our Supreme Court has allowed the appeal against sentence in the Fitzgerald case which I mentioned here on July 17, 2020: Fitzgerald v R [2021] NZSC 131 (7 October 2021).

The case required interpretation of (mainly) s 86D(2) of the Sentencing Act 2002:

(2) Despite any other enactment, if, on any occasion, an offender is convicted of 1 or more stage-3 offences other than murder, the High Court must sentence the offender to the maximum term of imprisonment prescribed for each offence.

It was universally acknowledged that in this case the result of application of a literal interpretation of this subsection was well beyond excessive punishment for the offence and it would shock the conscience of properly informed New Zealanders. This level of punishment was, in this case, a breach of s 9 of the New Zealand Bill of Rights Act 1990:

9 Right not to be subjected to torture or cruel treatment

Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.

Does the phrase in s 86D(2), “Despite any other enactment” include s 9 of the Bill of Rights?

Deciding this can require considering an interpretive provision of the Bill of Rights, s 6:

6 Interpretation consistent with Bill of Rights to be preferred

Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

Here, the phrase “can be given” is important. How big a stretch is permitted by this phrase?

The role of s 6 is not necessarily central to reasoning, because the common law has parallel interpretive tools, particularly the principle of legality (discussed here on 11 February 2021 in relation to D (SC 31/2019) v Police [2021] NZSC 2 ). These parallel tools may be used in combination, or separately.

In this appeal the majority judges were Winkelmann CJ, O’Regan and Arnold JJ jointly, and Glazebrook J.

Winkelmann CJ reasoned that s 6 goes beyond the principle of legality [57], describing it as a powerful interpretive obligation [73]. Noting that the common law permits, in appropriate circumstances, the reading-in and reading-down of legislation [59]-[62], and remembering that the result must not be a refusal to apply legislation [66], she concluded that an exception can be read-in to s 86D(2), [112]-[121]. This was consistent with the purpose of the provision [122] and it applied only where s 9 of the Bill of Rights would otherwise be breached [137]. Further, where the exception applies and ordinary sentencing principles come into play, these are supplemented by a principle requiring a stern sentencing response to such recidivism [138].

On the other hand, O’Regan and Arnold JJ relied primarily on the principle of legality as permission for reading-in the exception to s 86D(2). They pointed out [206] that it would have been easy for Parliament to have specified that the provision applied despite the Bill of Rights. Section 6 requires a similar approach to that adopted under the common law principle of legality [207]. After surveying decisions they concluded [215] that apparently unrestricted general words are not sufficient to displace presumptions reflecting core legal values. There are more such values than are included in the Bill of Rights, and in this sense the principle of legality is wider in scope than s 6 [217]. Explicit statutory language is required to override the right protected by s 9 [218]. A rights-consistent meaning of s 86D(2) can be given under s 6 without defeating Parliament’s purpose [219]. This conclusion is supported by another principle of interpretation: that legislation should be read, so far as possible, as being consistent with New Zealand’s relevant international obligations [225].

Glazebrook J, agreeing in the result reached by the other majority judges, was careful to say what she was not making any comment about. See footnote 337, para [243], [244] and footnote 348, [245] and footnote 351, footnote 352. She applied ordinary principles of interpretation, namely the purpose of the legislation [249], the need for reading-down in the light of the principle of consistency with international law and with fundamental human rights, and the constitutional status of the Bill of Rights [250], and the principle of legality [251]. She added in footnote 363: “I do not wish to comment on the relationship between s 6 of the Bill of Rights and the principle of legality, except to say that I agree with Winkelmann CJ that s 6 of the Bill of Rights may go further than the principle of legality.” At footnote 366 she did not agree with the Chief Justice’s comments regarding a stern sentencing principle being added because of s 86D(2).

The majority judges agreed that where the read-in exception resulted in the application of ordinary sentencing principles in a particular case (such as this), a discharge without conviction could be considered, although it might only rarely be appropriate. The question of sentence was remitted to the High Court.

The interpretation of s 6 is now delicately poised: Winkelmann CJ [67] appears to be willing to give it a strong meaning, consistent with Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557, while William Young J [294]-[302] (the dissenting judge in this appeal) is more conservative, requiring a rights-consistent interpretation to be reasonably available. The other judges appear to be reserving their positions on this issue.

Personally, and I just say this to get you thinking, my view at present is that the interpretation of s 6 is only a delicately poised issue because Lord Cooke refused to accept he had been wrong in Phillips.

Fair criticism?

Yesterday our media published an article critical of a judge who had repeatedly failed to direct juries correctly on the burden and standard of proof in criminal trials. The article gave me the impression that the judge was stubbornly refusing to follow Court of Appeal corrections of his approach.

I don’t know the judge, but I note that he has now retired.

Close inspection of the four cases shows that the Court of Appeal did not start dealing with these appeals until after the fourth trial. The same pattern applies to other cases alluded to in the article. This means the judge may not have been alerted to the errors as identified by the Court of Appeal.

It may even be that the judge had simply been following an out-dated (or what is now an out-dated) Bench Book model instruction set out for judicial guidance. I don’t know if that is so, because Bench Books are not available for inspection. The directions may have been toughened up after one of the Court of Appeal judgments, delivered on 8 October 2019.

The trials I am referring to were held in June 2016, December 2016, August 2017, and November 2017. The Appeal judgments were given in May 2018, April 2019, July 2019 and October 2019.

The media article linked above refers to the Court of Appeal's decision in R v Wanhalla [2006] NZCA 229, but the judgments in that case, delivered by three judges jointly and two judges each separately, can be read as not being expressed in mandatory terms; for example, from the joint judgment at [48] "something to be said ... at least in broad terms", [49] "inclined to the view that Judges should ...", [52] "there is no single formula which is required", "we are not to be taken as asserting that the formula just stated is mandatory", "It is sufficient to make it clear that the concept involves a high standard of proof which is discharged only if the jury is sure or feels sure of guilt."

And the Court in Wanhalla was not intending to change the way judges directed juries on the burden and standard of proof: [53] "It is most unwise for appellate courts to change course suddenly as to how trial Judges must sum up on the standard of proof."

Problems arising from departure from the Wanhalla direction were only becoming evident to the Court of Appeal by May of 2018, and on 8 September 2019 the Court said that such departure "is a perilous course." This firming-up of the status of the Wanhalla direction only occurred after the cases criticised in the article mentioned above.

The lengthy time it takes to get guidance from appellate courts could be blamed for the numbers of trials containing errors.

It is important to be fair when criticising anyone. It seems to me that the criticisms here may not have been soundly based.

My discussion of our leading case on the burden and standard of proof is here, and the Australian case is discussed here.

Update: You might like to look at a paper by Jason Anthony Aimone et al., "An Experimental Exploration of Reasonable Doubt" (14 September 2021), in which the results appear to suggest that jurors are influenced more by their own pre-conceived ideas of what a reasonable doubt is, than by directions from trial judges, and that differences in assessments of the standard of reasonable doubt correlate strongly with jurors' race.