When the right hand unfairly finds out what the left has been doing

If something can go wrong, it will, and there can't be many criminal defence lawyers who will be surprised that there has been a glitch in relation to compulsory interviews concerning proceeds of crime.

See the discussion of X7 v Australian Crime Commission [2013] HCA 29 here on 27 June 2013, and Lee v New South Wales Crime Commission [2013] HCA 39 here on 10 October 2013.

By oversight, transcripts in relation to which there had been a suppression order were released to the prosecution before a criminal trial in Lee v The Queen [2014] HCA 20 (21 May 2014).

This went to the fairness of the trial, because the prosecutor obtained information about how the defence might be conducted and was put in a position to prepare cross-examination in the event that the defendant gave evidence. This was a forensic advantage to the prosecutor for which there was no legislative authority and which undermined the fundamental premise of a criminal trial, namely that the prosecutor is not entitled to the assistance of the defendant in pursuing a conviction.

There was no occasion here for a policy balancing of interests, such as occurs when evidence is improperly obtained [51]. Here the issue was not admissibility, but abuse of process. There could be no thought of applying the proviso, as it were, and saying that there was no substantial miscarriage of justice, because here the trial had been unfair. This was an example [48] of the kind of "serious breach of the presuppositions of the trial" referred to in Weiss v The Queen [2005] HCA 81 (discussed here on, for example, 25 June 2007). 

A retrial was ordered.

Was the trial unfair? Not in terms of the definition that emerges from case law: a trial where the law is accurately applied to facts determined impartially. The case was not concerned with whether the legal elements of an offence were accurately applied to facts determined without bias or without improper weight being given to particular items of evidence. The issue was not substantive fairness, but procedural fairness.

Procedural unfairness can be thought of as a kind of abuse of process. Here it concerned a breach of a fundamental right. Attention is on what the officials did, not on what the defendant did.

Harmless lawbreaking by judges

There are times when judges fail to obey the law, in the conduct of trials, but that failure doesn't matter. For example, in Stout v R (British Virgin Islands) [2014] UKPC 14 (13 May 2014) the judge had not properly warned the jury about the dangers of reliance on hearsay evidence, yet, in the context of the trial, this did not affect the verdict and did not result in unfairness, and the Board upheld the conviction.

This does not mean that trial judges can ignore the law when they feel sure that the defendant is guilty and will be found guilty. The judicial oath requires of judges that they will administer and apply the law. The formal phrasing of the oath varies but typically contains the essential phrase "I will do right to all manner of people after the laws and usages of ... without fear or favour, affection or ill will".

So a judge who has failed to follow the law, but whose trial has survived an appeal, cannot simply relax in the coffee room and boast about getting away with it. The judge should feel a sense of shame and resolve to learn more about the law. And I don't know any judge who wouldn't.

The trial judge in Stout will learn that it is always necessary to explain to the jury that the absence of an opportunity to test the accuracy of the maker of a hearsay statement can be a significant disadvantage for a defendant [17]: 

"Hearsay evidence is indeed admissible, providing the necessary statutory conditions are met, and this evidence was admitted without objection. But it always suffers from the disadvantage that the jury cannot see the source of it and cannot see his accuracy tested. Of course, how far this disadvantage may affect the reliability of the evidence varies considerably from case to case, but it is important that the jury be confronted with the need to think about it."

And here there were two possible sources of error that the jury needed to be made aware of: the possibility that the original maker of the statement was wrong, and the possibility that the reporter of the statement was wrong.

"[17] ... The explanation or warning required is not of great complexity. In a case where the jury has seen other witnesses challenged and tested in their evidence it is usually simple to remind them of the process, to observe that a witness does not always leave the witness box with his evidence as secure as when he started and to invite them to remember that the hearsay evidence cannot be subjected to the same kind of examination."

There can be very good reasons why counsel in a trial may not object to the admission of hearsay evidence, as no doubt there were here - for example by using it to bring out inconsistencies in the prosecutor's case - but that does not absolve the judge of the responsibility to instruct the jury on the dangers and disadvantages of evidence of that kind.

Given that, as the Board concluded, the trial result was not affected by the judge's error, why was the trial fair if it was not conducted according to law? The answer is that none of the requirements of trial fairness were absent: the law (the elements of the offence of murder) was accurately applied to facts that were determined impartially. There was nothing in the trial that caused the jury to give inappropriate weight to any item of evidence to the extent that the jury could be called partial. Even if the jury had, as a result of not being adequately instructed on the dangers of hearsay evidence, given more weight than it otherwise would have to what the victim had reportedly said, there was sufficient other evidence in the case to make that error immaterial, in the sense that the same weight would have been given to the victim's statements in the light of other evidence.

Assessing reasonableness of suspicion

When can a tip-off provide the police with reasonable grounds to suspect that an offence has been committed? 

If the informant is not known to the police, what circumstances can provide sufficient assurance of reliability to establish reasonable grounds for this suspicion?

General rules providing for criteria of reliability may be difficult to apply uniformly in actual cases, and judges may differ in the same case, as is illustrated by the 5-4 split in Navarette v California, USSC No 12-9490, 22April 2014.

Thomas J and Scalia J differed here, the former giving the opinion of the Court and the latter the dissent. The central issue here was the grounds upon which the police stopped a vehicle on a road, which must be borne in mind in jurisdictions where the police can stop without grounds any vehicle for a routine licensing and roadworthiness check.

But more generally, Navarette illustrates how descriptions of requirements for reliability (was the informant an eyewitness, had there been time for fabrication of the report, would a false report carry risks that the informant would be called to account, did the reported facts indicate criminal activity, did subsequent police activity dispel the inference of reasonable suspicion?) can undermine the protection against unreasonable search when the facts are assessed.

Scalia J cogently reasoned that the police activity - following a suspected drunken driver for five minutes without observing anything irregular about the driving - dispelled suspicion. On his evaluation of the evidence there had been time for fabrication - "Plenty of time to dissemble or embellish" - and there was no evidence that the informant knew of any difficulties there may have been in locating her, and there could have been many innocent explanations for the driving behaviour she reported. Further, the driving was observed by the police to have been irreproachable and it gave rise to no suspicion of any criminal activity. A drunk driver cannot (necessarily) decide to drive carefully when he sees that he is under police observation.

The case focuses on the lawfulness of the stopping of the vehicle. A subsequent smelling of marijuana led to search and discovery of 30 pounds of that drug in the vehicle. The case is not concerned with the question of whether the evidence would be admissible if the search had been illegal. Here there was no police misconduct, but on the other hand the police should be deterred from relying on inadequate grounds for a search. Problematically, the distinction between belief and suspicion is difficult to apply in practice, and an erroneous belief that a suspicion is reasonably based can be a slight error compared to the public interest in detecting serious crime. Still, expansion of what is considered to be reasonable grounds for suspicion makes it less necessary to consider the admissibility consequences of police actions in good faith (Illinois v. Rodriguez, 497 U.S. 177 (1990), cited in Findlaw, Annotation 6 - Fourth Amendment, fn 224).

Dangerous indifference

Recklessness as to whether a complainant is consenting to sexual activity is not the same as recklessness as to why the complainant isn't consenting. The latter is not an element of the offence, whereas the former is, for offences defined in statutory provisions the same as or similar to those considered in Gillard v The Queen [2014] HCA 16 (14 May 2014).

Broadly, the legislation defined sexual offences that are committed in the absence of consent, and specified occasions where consent is deemed not to have existed, for example where consent has been caused by abuse by the defendant of authority over the complainant. Knowledge of the complainant's non-consent is sufficient for liability, as is recklessness as to whether the complainant consents.

In this context the High Court held that recklessness means indifference to the complainant's consent (applying Banditt v The Queen [2005] HCA 80). Here, indifference to whether the complainant consented was not to be equated to indifference as to whether an exercise of authority over the complainant may have caused a consent which the statute deemed not to be consent. Of course the existence of such authority could be evidence of the defendant's indifference as to whether the complainant consented, but that would depend on the circumstances.

Here the prosecutor, with the judge's apparent approval, had invited the jury to conclude that the defendant was reckless as to consent because he was reckless as to the cause of any apparent consent. That was incorrect reasoning and a new trial on the relevant counts was ordered.

Indifference here is not simply an emotional attitude. It is a state of mind warranting criminal liability when it causes harm. It is not merely being rash or lacking caution (see my comment on Banditt here on 24 January 2006, referring to Lord Bingham's dictum in R v G). It is a determination to have one's way regardless of the other person's wishes.

Paying for doing harm

For discussion of how to determine the amount of restitution (often in criminal law called reparation) a defendant should pay a victim whose online pornographic images he possessed, see Paroline v United States USSC No 12-8561, 23 April 2014.

The majority held that defendants should only be liable for the consequences of their own conduct, not the conduct of others. Courts must use discretion and sound judgment in fashioning restitution orders.

Roberts CJ, joined by Scalia and Thomas JJ, held that restitution could not be ordered here because the legislated standard for restitution left, in this case, the amount to be determined arbitrarily. Sotomayor J also dissented, holding that the legislation applied the tortious concept of liability of an individual defendant on a jointly and severable basis for the full amount of the victim's loss, and that accordingly an order for the full amount should have been made.

Article by Lord Phillips: Closed Material

As a special favour to yourself – a reward for a virtuous life – read the article by Lord Phillips on the way courts accommodate the need that some evidence be kept secret: Nicholas Phillips, “Closed Material” London Review of Books, Vol 36, No 8, 17 April 2014 (currently available here but don’t rely on this link surviving in perpetuity).

As the editor notes, “Nicholas Phillips retired in 2012 after three years as the first president of the UK Supreme Court. ‘Closed Material’ is a version of last year’s Blackstone Lecture, delivered at Pembroke College, Oxford.”

Many of the cases he mentions have been noted here: Chalal, Secretary of State for the Home Department v AF [2009] UKHL 28, and Secretary of State for the Home Department v MB [2008] 1 AC 440 here on 11 June 2009, AF again briefly here on 12 June 2009; A & Ors v. Secretary of State for the Home Department [2004] UKHL 56 here on 17 December 2004 (a case which Lord Phillips rates “as [the House of Lords’] most impressive decision in my lifetime”) and which moved me to quote, with rather spooky prescience, Montaigne; W (Algeria) & Anor v Secretary of State for the Home Department [2012] UKSC 8, here on 20 March 2012; Al Rawi v The Security Service [2011] UKSC 34, here on 14 July 2011; Roberts v Parole Board [2005] UKHL 45, here on 11 July 2005.

The case law led to the Justice and Security Act 2013 [UK], and Lord Phillips describes its passage through both Houses of Parliament from his perspective, focusing on disputes as to the criteria which should apply to any decision to permit the use of the closed material procedure (see now, ss 6(5) and 8(1)(c); it seems that efforts to impose more restrictive conditions on the use of the closed material procedure were unsuccessful). The enacted requirement is (broadly, and with qualifications) that “it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration” that a closed material application may be made, and an application must be granted if the court “considers that the disclosure of the material would be damaging to the interests of national security”.

Lord Phillips concludes,

“There is a danger that familiarity with the use of such a procedure will sedate those who use it against the abhorrence that the need to resort to such means should provoke. I would have been happier had the bill stated that it could be used only as a last resort.”

Fairness and contempt proceedings

Procedural fairness in contempt proceedings is the topic of general interest in Dhooharika v The Director of Public Prosecutions (Mauritius) [2014] UKPC 11 (16 April 2014). Of subsidiary interest is the analysis of the common law offence of scandalising the court.

The appellant, a newspaper editor, had published comments that were subsequently held by the Supreme Court of Mauritius to have undermined public confidence in the independence of the judiciary and the administration of justice.

This offence of contempt requires that, as an actus reus, the act or writing published must carry a real risk that public confidence in the administration of justice will be undermined, and the mens rea is intentionally, or subjectively recklessly, undermining public confidence in the administration of justice [42], [48] – [49].

As to fairness [50]:

“ ... The Board understands that it may be necessary for the DPP in an appropriate case to take summary action and that a classic form of trial may not always be necessary, but the Board is of the clear view that the alleged contemnor is always entitled to a fair trial and that, depending upon the circumstances, he will almost certainly be entitled to call oral evidence on his behalf, including his own evidence. In the instant case the Board has formed the view that the appellant was, as a matter of practical fact, deprived of his right to give evidence on his own behalf.”

Since the trial was unfair the conviction could not stand [54], but independently of the fairness difficulty, the published comments were not proved to have been made in bad faith [57] (meaning that mens rea was not proved).

The conviction was quashed, but the Judicial Committee observed that the procedure at sentencing had been unfair [60]:

“[The Board] ... would have allowed the appeal against sentence on the simple ground that the appellant should have been afforded an opportunity to make submissions in mitigation before a conclusion as to the correct sentence was reached. The transcript shows that the court proceeded to sentence immediately after delivering its judgment on the merits. There were a number of points which could have been advanced on his behalf in support of the conclusion that a custodial sentence was not necessary. The experience of this case shows that the prosecuting authorities should be careful to remind the trial court of the need to hear and consider submissions that go to possible mitigation of the sentence before sentence is pronounced.”

The Board surveys the history of contempt by scandalising the court [21] – [26], and considers its continuing existence, particularly in Mauritius but also elsewhere in the Commonwealth [29] – [41] (especially at [38] and Annex 1 to the judgment).

And (this is me now, not the UKPC) aspects of the law of contempt remain uncertain. Perhaps because flexibility in procedure may be essential if contempt has to be dealt with urgently, statutory procedures leave some areas untouched. Are there occasions when a charging document should be filed and the usual criminal procedures utilised, even though dealing with the alleged contempt may fall only within the court’s inherent power (see O’Brien v R [2014] UKSC 23 (2 April 2014), noted here on 4 April 2014)? How can a charging document be filed if there is no enactment against which the contempt is alleged? If there is no charging document, how should the court record its orders? If civil procedures are adopted to initiate proceedings, to what extend do they colour subsequent steps?

Some points can be stated with confidence because they have been established by case law. As Finn, Mathias and Mansfield say in Criminal Procedure in New Zealand (Thomson Reuters, Westlaw NZ online) at [1.3.3]:

“Both common law and enacted contempt require the criminal standard of proof [footnote: Newman (t/a Mantella Publishing) v Modern Bookbinders Ltd [2000] 1 WLR 2559, [2000] 2 All ER 814  (CA)]  and the alleged contemnor has the rights of a person charged. [footnote: Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [53]–[56] per Blanchard, Wilson and Anderson JJ]  Neither form of contempt carries a right to elect jury trial and all offences of contempt are subject to maximum penalties which are less than the level at which jury trial could be elected. [footnote: Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [60], [62]–[65] and [67] per Blanchard, Wilson and Anderson JJ, decided under the former law which gave the right to elect jury trial whenever (with a few exceptions, such as those which were mentioned in the Summary Offences Act 1981, s 43, with due respect to Tutu v R [2012] NZCA 294 at [19]) the maximum penalty was imprisonment for more than three months. Now all contempts are category 2 offences.]  The judge must identify the act or acts giving rise to the alleged contempt with sufficient particularity to ensure the defendant understands what is alleged, and must give the defendant the opportunity to take legal advice.”

Whether there is still a need for the common law offence of scandalising the court may be debatable, as is illustrated by the points made by Lord Pannick and referred to in Dhooharika at [28].

Our Law Commission is currently reviewing the law of contempt. And there is a particularly interesting paper by Professor ATH Smith, Reforming the New Zealand Law of Contempt of Court – An Issues/Discussion Paper available at Crown Law.

Points to file away ...

To do an act “with” the defendant

Policy was an important consideration in interpreting the phrase “to do an indecent act with or upon” the defendant in s 2(1B) of the Crimes Act 1961 [NZ], where the defendant, an adult, induced young people to masturbate in his presence but without any physical contact or overt participation by him: Y (SC40/2013) v R [2014] NZSC 34 (3 April 2014). The policy point is apparent at [16].

Equally interesting is the submission made for the appellant that the interpretation imposing liability on the defendant would amount to retrospective criminalisation, in view of decisions that appeared to suggest he would not be liable. At [27] the Court noted that the earlier decisions did not deal with situations where young people had performed the indecent acts, so this was not retrospective criminalisation.

Civil but contemptuous

The distinction between civil and criminal contempt of court was the basis for holding that extradition on a criminal matter did not operate to bar proceedings for an earlier civil contempt, in O’Brien v R [2014] UKSC 23 (2 April 2014). The distinction between civil and criminal contempt is mentioned at [37] – [40], [42]. It is the nature of the defendant’s conduct that determines the category of the contempt.

They say we can't, but we say we can! Fairness trumps logic in the Privy Council.

Every judge dislikes constraints on jurisdiction that impede justice. One can be confident about that.

In our legal system – and perhaps in yours too – the greatest jurisdiction is given to the senior trial court, the High Court, while the appeal courts, the Court of Appeal and the Supreme Court, have jurisdiction that is limited by statute.

You might think that it would be sensible to give the final appeal court the greatest jurisdiction. But no, that is not the way that the legislature has decided to distribute jurisdiction. Admittedly, an appeal court should not need original jurisdiction, so that difference is understandable. But once an appeal court has a case before it, it should be able to do anything that another court could lawfully do.

Yesterday the Privy Council riled against a jurisdictional constraint and turned its face, by a majority, against a logically irrefutable limitation on its jurisdiction to order commutation of a death sentence to life imprisonment: Ramdeen v The State (Trinidad and Tobago) [2014] UKPC 7 (27 March 2014).

Justice overrode logic. The appeal was against conviction, and after lengthy delays during the course of judicial process [conviction 29 July 2008, appeals dismissed in T&T 26 February 2010, leave to appeal to the Board granted 18 March 2013, this appeal heard 23 January 2014], it was dismissed by this Board. Should the death sentence stand, notwithstanding that it had not been appealed? The prosecutor indicated no enthusiasm for its imposition.

Lord Toulson, with Lord Kerr [49], [58], [59] and, separately, Lord Neuberger [68], agreeing, held that the Board was seised of the criminal proceedings as a whole once it granted leave to appeal against conviction, and that as it was satisfied that carrying out the sentence would be unlawful in view of the inhumanity caused by the delay, it had the power to order commutation instead of requiring further proceedings to be brought on that issue. Fairness and convenience both pointed to this conclusion [69].

Lord Mance, with whom Lord Sumption agreed, dissented on logical grounds. They had no doubt that the appellant’s ordinary remedies in Trinidad and Tobago would be forthcoming.

Can technology make extradition for trial unnecessary?

If you need clarification of disclosure obligations in the context of extradition proceedings involving the “record of case” procedure, Dotcom v United States of America [2014] NZSC 24 (21 March 2014) should be of assistance.

The decision of the Court is in the joint judgment of McGrath and Blanchard JJ (delivered by McGrath J), the concurring judgment of William Young J, and the partially concurring judgment of Glazebrook J. See [153], [172], [177], [191], [194]; [213] – [217], [221] – [223], [228].

Where legislation permits a slightly more relaxed approach to treaty obligations, so that there is more room for fairness, the dissent of Elias CJ, and the partial dissent of Glazebrook J deserve consideration.

The central concept is the “duty of candour”, pursuant to which a requesting state must disclose to the defendant any information that [152] “destroys or very seriously undermines the evidence” on which the requesting state relies (adopting Lord Bingham in Knowles v Government of the United States of America [2006] UKPC 38, [2007] 1 WLR 47 at [35]).

Enforcing this duty of candour, in the absence of judicial powers to make orders, requires the court to rely on the candour of a party that may well not want to be candid. Of course the judges didn’t put it like that [177]:

“We accept that there will be exceptional cases where an extradition judge might want further information to be sought from the requesting state. Such concerns will usually be resolved through dialogue between the Court and counsel. In cases where that does not meet the perceived need, we also accept the view expressed in [Norris v Government of the United States [2008] UKHL 16, [2008] AC 920 at [107]] by Lord Bingham that where the relevant extradition treaty provides for government-to-government requests to be made for additional information or evidence, as art 12 of the Treaty does, that formal procedure may be availed of. The Court should inform counsel for the requesting party that the Court wishes to receive further information from the requesting state. Counsel must then bring the matter to the attention of the appropriate New Zealand Ministers so that a decision on whether to request the further information through diplomatic channels is made and given due effect.”

The weakness in this legislated scheme is obvious. The “state” seeking extradition is really a group of people whose jobs are to be prosecutors. They have allegiance to their country. They believe they have right on their side. So-called “states” do not treat each other with candour: if they did there would be a lot of unemployed spies.

Is the meaning of a “fair” extradition hearing different from the meaning of a “fair” trial? Fairness in extradition hearings requires impartial determination of the facts – in the sense of giving the evidence appropriate weight and determining issues without bias – in deciding whether a prima facie case has been established by the requesting state. There must be evidence, summarised in the record of case (where that procedure applies), on every element that the prosecutor would have to prove at trial. None of that evidence can be so unreliable that no fact-finder would accept it. The defendant must be able to challenge the reliability of the evidence, and that may require access to information that only the prosecutor may have. The prosecutor may be unaware of weaknesses in the case for extradition, or may not appreciate the magnitude of a possible weakness.

There is a point on which one might have reservations about the reasoning at [161] of the joint judgment (and concurred by William Young J at [228]). Disclosure, the judges seem to be saying, is not required when the defendant has independent knowledge of the facts. But the difficulty with this is that disclosure enables the defendant to know how the prosecutor intends to prove the facts needed to establish a prima facie case. It doesn't matter what the defendant knows, it's what the prosecutor knows, and how that knowledge was obtained, and whether it is admissible as evidence, that the defendant needs disclosure of, to challenge the assertion that there is a prima facie case.

It seems obvious that the statutory scheme for extradition where the record of case procedure is used does not meet the requirements of a fair hearing, because of constraints on disclosure of the prosecutor's case and the requirement that courts accept - although on a supposedly "rebuttable" basis - the candour of the prosecutor. You could hardly get a clearer example of the legislature requiring the court to take a biased stance. Yet the majority judges don't accept this. In considering whether the scheme complies with the requirements of natural justice [193], [229], [239] they - in effect - explain why it doesn't then they say that it does.

If there are questions about the power of the legislature to require courts of justice to act unjustly, resort will be had to the inherent powers of the court to act in the interests of justice. Elias CJ and Glazebrook J seek to advance this principle. The majority refer [181] to the court's ability to refuse extradition after a "meaningful judicial assessment of whether the evidence is sufficient to meet the threshold of a prima facie case", and the word "meaningful" may, one may speculate, encompass cases where there is a judicial sense that unacceptable unfairness has occurred.

Lord Devlin said something sensible in Connelly v DPP [1964] AC 1254, 1354, which I quoted in an article that, for reasons that now nearly escape me, I called "Criminal Equity" [2000] New Zealand Law Journal 427, a copy of which is available here.

In these times of technological sophistication, when trials do not really require the presence of defendants, or often even of witnesses, because they can participate remotely by audio visual links, extradition may only be necessary when a person is required to be present in court for sentencing.

Have you tried marine biology?

I’m told that there are some people who need to use little untruths to advance their chance of romantic success.

The most famous example I can think of is George Kostanza in Seinfeld, 5^th season, episode 14: “The Marine Biologist”. Being thought of as a marine biologist did indeed enhance George’s prospects, but it also led to a call to action of another sort.

In R v Hutchinson, 2014 SCC 19 (7 March 2014) Mr Hutchinson’s untruth was of a more mundane kind: it came down to saying, “This is a really good condom.”

In fact he had put pin pricks in it, hoping to make his partner pregnant but knowing she did not want that. The result was she did become pregnant.

Had the complainant consented to the sexual activity?

The Court was unanimous in dismissing the appeal, but for differing reasons. The majority said yes, she had consented but her consent was vitiated by the dishonesty. Consent had been given to the sexual activity in question, and consent does not have to extend to the conditions or qualities of the act, such as birth control measures. However there was dishonesty which resulted in serious bodily harm [67] – [70], and this constituted the fraud that vitiated consent.

The minority said no, there was no consent ab initio, because use of the condom was part of the sexual activity and the complainant had the right to determine how she was touched, how the sexual activity she engaged in was carried out. It was not necessary to look for a vitiating factor such as fraud, as there was no consent from the beginning.

The majority found some difficulties with the minority reasoning [45] – [53]. How are the boundaries of the sexual activity, the nature and quality of the act, defined?

If a complainant had thought she was being propositioned by a marine biologist (this is my example, not the Court’s), and if she wouldn’t have had sex with the real George, would she be consenting to the ensuing sexual activity? If so, would her consent be vitiated by fraud?

My goodness! Is that a gun?

For what would be accepted in the common law world as a conventional analysis of secondary liability insofar as it applied to the facts of Rosemond v United States, USSC No 12-895, 5 March 2014, see the judgment of the Court delivered by Kagan J (with significant agreement by Alito J, joined by Thomas J, in dissent).

It is the point over which the dissent occurred that is of interest to you and me.

The relevant offence was double-barrelled: committing a drug dealing offence, while in possession of a firearm. Does the secondary party, who assists or encourages the offence, have to help with both the dealing and the firearm possession? No disagreement here: it is only necessary that the defendant provides assistance or encouragement with some part of the offence. Does the secondary party have to know of all the circumstances – both the dealing and the firearm? Again, no disagreement: the defendant must know of all the circumstances of the offending.

But what if the defendant, present during the commission of the drug dealing, only becomes aware of the firearm after it is too late to withdraw from participation? The defendant may not be able realistically to say, “Everyone stop! No guns!” because that might risk the safety of other people or even of the defendant himself.

Here the dissenters say this is like the affirmative defences of duress or necessity: the defendant is saying he can’t withdraw because of forces beyond his control. He should, according to the relevant law (not universally applicable), have to prove those defences. They do not negate an element of the offence.

The majority disagreed with that (slip op, p 10 footnote 10). The question is one of fact: what did the defendant intend to assist or encourage? Evidence that he only learn’t of the firearm after the drug deal had commenced would be relevant to whether he intended to assist or encourage the firearm possession. His continuation with his participation could be consistent with him encouraging the gun element, or not: that is a matter the fact-finder would have to determine (see slip op, p 13, footnote 9). The prosecutor must, when such issues are raised, prove the necessary intent without a burden of proof passing to the defendant.

Defences like duress or necessity could, on relevant facts and subject to local law, be available, and again, subject to local law, may only require the defendant to raise them as live issues by pointing to some supporting evidence.

Normally, aside from in offences that include a proscribed purpose, the law does not concern itself with the motive behind an intention; Robin Hood was a thief. Where an intention existed because the defendant faced circumstances that it would be beyond normal human fortitude to endure, a defence of necessity might be available. But not necessarily. This is where policy limits on justifications and excuses operate. In Rosemond the Supreme Court majority lowered the moral hurdle for defendants by allowing a motive for an intention to limit responsibility even though the stricter requirements of an affirmative defence would not be satisfied.

I doubt that this would be a universally acceptable recognition of human frailty.

Hidden defences and concealed charges

Defence lawyers are familiar with the difficulty of deciding how to make the best of one defence while not losing a fall-back defence in the event that the first is unsuccessful. You can’t credibly build a case that “My client didn’t do it, but if he did he was forced to, but if he wasn’t he did it in self defence, but if he didn’t it was an accident.” Plainly the defence case is that the defendant didn’t do it. The judge, on the other hand, may have to consider evidence that if the defendant did do it, he acted in self defence, or that some other defence appears on the evidence to require to be considered.

“Discharge of the trial judge's role in ensuring fairness to the accused requires that the jury receives instruction on any defence or partial defence, provided there is material raising it, regardless of the tactical decisions of counsel [Footnote: Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 at 117-118 per Barwick CJ.]. Among other things, this recognises the forensic difficulty of relying on inconsistent defences. The tactical decision not to rely on a defence or partial defence, whether objectively sound or otherwise, does not relieve the trial judge of the obligation to instruct the jury on how on a view of the facts a defence or partial defence arises.”

James v The Queen [2014] HCA 6 (5 March 2014) joint judgment at [31], and see Gageler J at [69].

Another aspect of the judge’s duty to ensure a fair trial for the defendant comes into play when a separate issue arises: should the judge leave open the opportunity for a conviction on another offence that may, on the evidence adduced at trial, have been committed? That is, by way of an alternative verdict. For example, a defendant may argue on an appeal against conviction that the trial court did not have the opportunity to consider a lesser offence in respect of which it may have preferred to find the defendant guilty.

In James the jury had found the defendant guilty of intentionally causing serious injury. There had been an alternative count of recklessly causing serious injury. On appeal he argued that the jury should have had the opportunity to consider the lesser offence of intentionally causing injury (that is, ordinary old injury). The defence case at trial had been that the defendant had caused the injury accidentally.

A tactical decision had been made at trial not to seek the alternative verdict of intentionally causing injury.

The defendant was understandably not, at trial, saying “It was an accident, but if it wasn’t I didn’t appreciate the risk of injury, but if I did, I didn’t mean to cause injury, but if I did, I didn’t mean it to be serious injury.” He wanted the jury to reject the serious allegation and to acquit him outright, without bothering itself over whether he may have committed the lesser offence.

On the facts of this case, where a car had allegedly been used to cause the injury, the majority, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ, held that there had been no unfairness because it would be artificially subtle [47] to expect the jury to distinguish between an intent to cause serious, as opposed to ordinary, injury, and that the defendant could not have been prejudiced by the omission an alternative verdict [48]. Gageler J dissented on this issue. He regarded the distinctions between the degrees of injury as something that the jury could have considered when determining the defendant’s state of mind [88]. Since the defendant could have been convicted of the lesser offence, he concluded that there had been a substantial miscarriage of justice in not leaving it for the jury’s decision [89].

The judicial approach to alternative verdicts is summarised by the majority [37]:

“ ... At a trial at which neither party seeks to rely on an included offence, the trial judge may rightly assess that proof of the accused's guilt of that offence is not a real issue. In such an event, it would be contrary to basic principle for the trial judge to embark on instruction respecting proof of guilt of the included offence ... .”

But Gageler J considered [71] that the relevant statutory environment required the judge to direct the jury on alternative offences

“ ... whenever it was open on the evidence for the jury to find the accused not guilty of the offence charged but guilty of the alternative offence, unless the giving of the direction would be unfair to the accused in the particular circumstances of the case.”

He observed that this was consistent with the common law as stated by Lord Bingham in R v Coutts, discussed here on 21 July 2006.

The majority, however, put the focus on the real issues in the trial, assessed in the light of the prosecutorial decision as to what charges to prefer:

“[33] ... Where the prosecution does not seek the jury's verdict for an offence not charged, the circumstance that in law the evidence may support conviction for a lesser offence does not without more make guilt of that lesser offence an issue in the trial. Fairness in such a case may favour that the accused's chances of outright acquittal on the issues joined not be jeopardised by the trial judge's decision to leave an alternative verdict.”

And

“[37] ... The view that it is the duty of the trial judge to invite the jury to determine the accused's guilt of an included offence at a trial at which the prosecution has elected not to do so is incompatible with the separation of [the judicial and prosecutorial] functions. It is not the function of the trial judge to prevent the acquittal of the accused should the prosecution fail to prove guilt of the offence, or offences, upon which it seeks the jury's verdict. ...”

That is to say, judges shouldn’t be surrogate prosecutors. It is for the prosecutor to say at trial, and at a stage of the trial when it is fair to do so, whether conviction is sought for any included offence.

The power to consent to search: a question of law or of fact?

One occasionally wonders how those who wrote the Fourth Amendment to the “Constitution for the United States of America” would have decided issues that currently come before the Supreme Court relating to the right of the people to be secure against unreasonable searches and seizures.

Minute examination by the Supreme Court of the implications of the facts of individual cases has reduced the extent to which people in the United States are protected by the Fourth Amendment.

This week the reduction in protection continued: Fernandez v California USSC No 12-7822, 25 February 2014. The issue was whether a co-tenant could give the police consent to the search of the residence she shared with the defendant. The defendant had been lawfully arrested and removed, but he had maintained his objection to the search. The police could have obtained a warrant but did not, and in giving consent to the search when the police returned to the residence about an hour after removing the defendant, she may have felt pressured (Ginsburg J dissenting, joined by Sotomayor and Kagan JJ, p 9 slip op, footnote 5; but compare footnote 2 of the opinion of the Court delivered by Alito J). The majority held that her oral and signed consent gave the police authority to search the premises, and evidence linking the defendant to a robbery was admissible.

The legal question was whether the co-tenant could give “effective” consent to the search. This – the “could” part - is a question of law. Hence the subtle jurisprudence discussing whether particular facts give rise to an occupier’s power to give consent despite the objection or absence of another occupier.

Would it be simpler – in those jurisdictions where it is still possible to do so - to treat the existence of a power to give consent as a question of fact?

For example, s 94(c) of the Search and Surveillance Act 2012 [NZ] reads:

“A search by consent is unlawful if— ... (c) the search is undertaken in reliance on a consent given by a person who does not have authority to give that consent.”

Currently it is regarded as “arguable” that a tenant is unable to consent to the search of the part of the premises (such as a bedroom) solely occupied by another tenant: Adams on Criminal Law, at [SS94.02]. I would go further and say that the argument would be about the facts only: whether the facts show that one co-tenant had given another the power to give consent to the search of that part of the premises.

By what can only be a happy coincidence, the requirement for "authority" in s 94(c) resonates with a remark by Roberts CJ in Georgia v Randolph, 547 US 103 (2006) (dissenting, joined by Scalia J): "A warrantless search is reasonable if police obtain the voluntary consent of a person authorized to give it." But the court's jurisprudence illustrates how this simple idea has been clogged with legal rules. For example Chief Justice Roberts, in the passage immediately preceding the sentence just quoted, summarised the precedents as including the proposition of law that " ... someone who shares a place with another cannot interpose an objection when that person decides to grant access to the police ...". I would argue that this should not be a proposition of law, but rather it should be a question of fact in each case whether a relevant occupier (the defendant) has given authority to another occupier to give consent to the search that actually occurred.

In Fernandez there was no such consent and the absence of the defendant, who was in police custody, did not  result in him constructively giving his authority to consent to the co-tenant, and obviously, as there was then no urgency, the police should have obtained a warrant; the search was illegal and the admissibility of the seized evidence should be determined taking that illegality into account.

Evaluating opinions

R v Sekhon, 2014 SCC 15 (20 February 2014) is interesting on when an expert’s opinion has no probative value, and on the appellate court’s approach to assessing the inevitability of a guilty verdict.

An expert witness said that in his extensive experience drug couriers always know that they are in possession of a drug. They are not “blind” couriers. The material issue was the defendant’s knowledge of the presence of a drug in the vehicle he drove at the Canadian border.

The expert’s evidence here cannot readily be reduced to the necessary logical proposition that constitutes the likelihood ratio that expresses probative value.

To determine probative value it is necessary to know whether the evidence is more consistent with the defendant’s guilt than with the defendant’s innocence.

At first blush it seems that this evidence is indeed of that kind: it carries the implication that the defendant must have known of the presence of the drug. But that, without more, is fallacious, for it is simply saying that other defendants in other cases have known of the presence of the drug, so this defendant must have known too.

To determine whether the evidence is more consistent with the defendant’s guilt than with the defendant’s innocence, one asks how likely it is to have been obtained on the assumption that the defendant is guilty, compared to how likely it is to have been obtained on the assumption that the defendant is innocent.

Here the expert’s opinion doesn’t fit into that formula. If the opinion comes down to saying “the defendant knew the drug was present”, it is conclusory not probative.

This sort of analysis is important, for at trial there was no objection to the evidence being given. Not only did counsel not object to it, but at this judge-alone trial the judge accepted it, and the British Columbia Court of Appeal majority (Newbury JA dissenting) also thought it was admissible. But all the Supreme Court judges in Sekhon held that the expert’s opinion was not admissible [49] – [50], [61], [75] – [76], [79] – [80].

The other interesting aspect of Sekhon is the split in the Supreme Court over whether this was a case in which the conviction could be upheld by application of the proviso. This sort of split arises from different evaluations of the strength of the prosecution case as it would have been if the inadmissible evidence hadn’t been given. Here the trial judge gave a reasoned decision, so it should have been relatively easy to evaluate the strength of the case without the impugned evidence. Jury trial convictions are, broadly speaking, more easily overturned when inadmissible evidence was led at trial, because the appellate court cannot examine the reasoning of the jury and there are more live possibilities for how the reasoning may have proceeded in the absence of the error. Differences in appellate perceptions of the significance of such errors at trial point to a weakness in the criteria for deciding conviction appeals.

The Canadian slant on trial fairness and the stay of proceedings

When prosecution misconduct imperils the fairness of a trial, and no other remedy can be found to eliminate any real risk that the trial will be unfair, it is the duty of the judge to stay the proceedings.

This is a corollary of the defendant’s absolute right to a fair trial. If there is a real risk that the trial will be unfair, there is no next-step of balancing the public interest in proceeding against the defendant’s interest in trial fairness.

There are two sorts of relevant prejudice that can arise from the misconduct of officials. In Canada they are described as follows. The first, the main category, is prejudice to the defendant’s right to a fair trial. The second or residual category is prejudice to the integrity of the judicial process, and here it is necessary for the judge to consider whether allowing the proceedings to continue would lend judicial condonation to the impugned conduct.

One may wonder whether the Supreme Court of Canada thinks that the defendant’s right to a fair trial is an absolute right (and see R v NS, discussed here on 20 December 2012). In an obiter error it has said that, if it is uncertain that a stay of proceedings is warranted as a response to prejudice to trial fairness that cannot be remedied in any other way, the judge must balance the interests of the defendant against the interests of society in proceeding with the prosecution: R v Babos, 2014 SCC 16 (21 February 2014), at [32] – [33] (and subject to [40] quoted below), purporting to follow R v Regan, 2002 SCC 12 (14 February 2002) at [54], [57].

I say “error” and “purporting” because in Regan, where the Court split 5 – 4 on the facts, the majority attached the balancing exercise as a final consideration in relation to prejudice in the “residual” category, that is, the category that does not include trial unfairness. No balancing was required in relation to the main category, trial unfairness. That was a correct application of Canada (Minister of Citizenship and Immigration) v Tobiass, 1997 CanLII 322 (SCC) at [91] – [92], which plainly concerned the residual category of occasions where impropriety by officials may give rise to prejudice to the integrity of the judicial process. There was no authority for applying balancing to the main, trial fairness, category of prejudice.

This point could be overlooked, for the majority in Babos said at [40]:

“ ... When the main category [trial fairness] is invoked, it will often be clear by the time the balancing stage has been reached that trial fairness has not been prejudiced or, if it has, that another remedy short of a stay is available to address the concern.  In those cases, no balancing is required.  In rare cases, it will be evident that state conduct has permanently prevented a fair trial from taking place.  In these “clearest of cases”, the third and final balancing step will often add little to the inquiry, as society has no interest in unfair trials.”

Requiring the “clearest of cases” before dispensing with the balancing exercise is hardly a protection of the defendant against a real risk of an unfair trial. The embarrassment could be avoided if one were to pretend that a “real risk” is the same thing as “the clearest of cases”. But it isn’t. Does society have an interest in proceeding with trials that may well be unfair, and only staying those which must be unfair?

In Babos Abella J dissented on the assessment of the prejudice to the integrity of the judicial process in this case. She did not mention the trial fairness category of prejudice.

The critical misconduct in Babos was threats by a prosecutor that the defendant would face more charges if a guilty plea was not entered [10], [59] – [71]. The level of residual prejudice that these gave rise to must be assessed in the circumstances of the case. It was significant here that a threat had occurred before the defendant had obtained sufficient disclosure to make an informed decision as to plea. Even so, there were circumstances that reduced the prejudice, and on balance the majority concluded that a stay was not warranted.

Two occasions for caution: dock identification, and witnesses who may have an improper motive

Where a witness has had an opportunity at an identification parade to identify the defendant but has failed to do so, the prosecutor should not invite the witness to identify the defendant in the dock at trial, and should be at pains to avoid a dock identification: Lawrence v The Queen (Jamaica) [2014] UKPC 2 (11 February 2014) at [11].

The Board summarised its dicta in previous cases on dock identification and the warnings that must be given by a trial judge when they are permitted, applying in particular Holland v HM Advocate [2005] UKPC D1, mentioned here on 26 February 2008 in relation to Pipersburgh v R (Belize) [2008] UKPC 11, and again here on 26 April 2006 in relation to Edwards v R (Jamaica) [2006] UKPC 23.

There is also in Lawrence a summary of the law on when the judge should warn the jury that a witness’s evidence may be tainted by an improper motive. These warnings need to be tailored to the circumstances of the case and the overriding rule is that the defence must be put fairly and adequately [15] – [18].

Provocation and law

For an interesting authoritative – subject to statutory variation - survey of the law of provocation, see Daniel v The State (Trinidad and Tobago) [2014] UKPC 3 (13 February 2014).

The partial defence of provocation has been repealed in some jurisdictions, including mine, making it difficult for me to get up enthusiasm for a detailed discussion. This mental sluggishness might also be found in students who no longer encounter what was an intellectually stimulating part of the criminal law course. Still, law wasn’t invented to amuse lawyers, was it?

What would be interesting to discover, in places where there is no longer a partial defence of provocation, is whether juries are nevertheless instinctively applying something similar – perhaps a commonsense feeling for justice? – and returning verdicts of guilty of manslaughter instead of murder in cases where the result would have been the same if the law of provocation had applied.

There is, in Daniel, the generally important point that [13], [56] the judge must leave defences to the jury if they are available on the evidence, even if the defendant has not relied on them. See also Holt, discussed here on 21 February 2014.

Harmony was found [33] with the Supreme Court of Canada’s conclusion on self-induced provocation in Cairney v The Queen [2013] SCC 55, mentioned briefly here on 1 November 2013.

Is a partial defence of provocation inconsistent with the so-called felony murder rule whereby a killing in the course of the commission of certain offences is automatically murder regardless of the defendant’s intention? The answer [46] is yes, the felony murder rule (again, in jurisdictions where it or its equivalent applies) makes the defendant’s state of mind irrelevant and there is no room for the defendant to say he acted under provocation.

The Board in Daniel swept away [57] the Camplin rule which had required provocation to be left to a jury if there was evidence of loss of self-control regardless of whether any reasonable jury could possibly find that a reasonable person with the defendant’s characteristics would have responded as the defendant did. In enacting the legislation under which Camplin was decided, “it was not the intention of Parliament to legitimise a perverse verdict.”

This sort of perversity – acquitting where there is insufficient evidence to support a defence – is different from the sort of perversity where the jury recognises a defence which the law has purported to remove. In the latter, the jury is applying social norms that it considers to be morally right. These norms it regards as morally binding and therefore justly applied, although one may doubt whether that is an application of law (see generally, John Gardner, Law as a Leap of Faith, 2012 OUP, reviewed here on 6 July 2013). Arguably it is, because it is permitted by the law; through the concept of reasonableness natural laws are incorporated into positive law.

And what are our fees from crime?

What does a judge need to consider at trial if a defendant’s evidence is not accepted?

“The case in which a defendant advances a defence which may well be disbelieved imposes a particularly acute duty on the trial judge. It is essential that he consider carefully what the position will be if the defendant's account is indeed rejected. Sometimes the result will be that the only proper verdict will be guilty, and indeed sometimes this may be expressly conceded on the defendant's behalf. But very often it will be necessary for the jury to be required to apply its mind to the remaining steps to conviction, and it is especially important that it be reminded that it must do so because defence counsel will normally not have addressed other possible obstacles to conviction which are inconsistent with the case being advanced by the defendant in evidence. A simple instance is the defendant accused of murder who advances an alibi which is seriously damaged in cross examination of the several witnesses, but whose actions, assuming that he was indeed the culprit, may not amount to murder, for example because there is a genuine decision to be made about intent. There are many other examples.”

Holt v Her Majesty’s Attorney General on behalf of the Queen (Isle of Man) [2014] UKPC 4 (19 February 2014) at [24]. Compare Huynh v The Queen [2013] HCA 6 discussed here on 15 March 2013 for situations where getting to the real issues in a complex case is appropriate. And on considering defences not expressly relied on, see R v Pickton 2010 SCC 32, discussed here on 6 August 2010.

Holt will be of interest to all lawyers who receive funds or property from clients. A cynic might say that the creation of money laundering and proceeds of crime offences gives the Crown an unfair advantage in the scramble for revenue. But we who take a more balanced view would agree that it would not be possible to prevent offenders from benefiting from their offences if lawyers were exempt from proceeds of crime laws.

In Holt the key issue was whether the defendant, a lawyer, had known or suspected that funds were the proceeds of crime. This requirement of knowing or suspecting is commonly found in proceeds of crime legislation.

“[25] ... It would not be necessary for the appellant to know that the law labelled what occurred a crime, still less which crime, if she knew or suspected facts which amounted to a crime of some kind. But it was necessary for the prosecution to prove that she had applied her mind to the circumstances in which the money had been produced. Actual knowledge or suspicion that there was criminal conduct of some kind involved is an essential element of the offence. It was not enough to show that she ought to have realised that some crime, such as theft or obtaining by deception, might well have been involved. Knowledge or suspicion that to receive the money ... would be irregular, in the sense of a breach of trust, is not automatically the same as knowledge or suspicion that a crime is involved.”

And in the circumstances here, even agreeing in cross-examination that she knew the money couldn’t have “honestly” been obtained by the client, did not necessarily amount to admitting knowledge of more than an irregularity that was less than a crime. The issue of knowledge or suspicion that the money was proceeds of crime had not been left to the jury in this trial, the defence having been absence of knowledge of the source of the money rather than its quality as proceeds of crime.

“[26] It is no answer to this defect [omission of a direction on the need to prove knowledge or suspicion that the money was proceeds of crime] that the appellant was not advancing this defence, either in her evidence or in counsel's speech on her behalf. It is precisely because she was advancing a different, and as the jury found untruthful, version of events, that neither she nor counsel did so. It is precisely in these circumstances that the duty falls upon the judge to address the elements of the offence if, as can be seen to be at least possible, the jury rejects her evidence.”

In the circumstances it was not inevitable that the jury would have found the defendant guilty if it had been properly directed, and an acquittal on the main charge could have led to acquittals on other charges. There had also been some unfortunate remarks from the judge (who on the Isle of Man is called the Deemster) which could have given the jury the impression that the judge thought the defendant was guilty. All convictions were quashed, and the question of retrial ([32] “the public interest is most unlikely to call for a re-trial”) reserved for submissions to be made to the Board.

The view from above

Just as cirrocumulus stratiformis clouds are broadly similar to cirrus spissatus undulatus clouds, and most of us don’t really pay much heed to the difference between them, so too is Milne v The Queen [2014] HCA 4 (14 February 2014) broadly similar to Richardson v DPP [2014] UKSC 8, discussed here on 7 February 2014.

Both cases take a purposive interpretation of specific legislation. In Milne an exchange of property with intent to conceal the profit to avoid paying tax did not make the property an “instrument of crime” for the purposes of s 400.3(1) of the Criminal Code (Cth). The property disposed of was not thereafter “used” in the commission of a relevant offence.

Not too far removed from a hypothetical considered in Richardson: the shop’s lawful activity of selling soap would not have been made unlawful if a sales assistant were being paid below the minimum wage.

But we lawyers, whose heads are definitely not in the cirrus, can see the difference as well as the similarity.