To retry or not to retry, that is the question

A strong legal system will ensure a fair trial for a defendant who is obviously guilty of a serious crime. R v Maxwell [2010] UKSC 48 (judgment given on 20 July 2011) is centred on the tension between the court's need to have its proceedings untainted by police misconduct and the need to uphold the public interest in conviction of the guilty.

After the Criminal Cases Review Commission had exposed serious police misconduct in the collection of evidence against the accused, the Court of Appeal quashed his conviction for a particularly vile murder. However, while he was serving his sentence and when his conviction was being investigated the defendant made admissions which supported an inference of guilt. The Court of Appeal decided to order a retrial because of this new evidence. That decision was appealed to the Supreme Court.

Were the new admissions tainted by the police misconduct that had led to his conviction and sentence?

The Court split 3-2 on this.

The problem of when events have moved on sufficiently from police misconduct to leave untainted any evidence subsequently discovered often arises in the context of improperly conducted searches. See for examples, R v Wittwer, discussed here on 6 June 2008, Gafgen v Germany, discussed here on 3 July 2008 and again on 25 June 2010, R v Ogertschnig and Police v Chadwick both discussed here on 26 October 2008.

The difference between the judges in Maxwell turned on whether the "but for" test was conclusive: if the admissions would not have been obtained but for the impropriety, they are tainted. Or was this just one matter to be considered in the balance?

You might think it obvious that since Mr Maxwell was in prison serving a sentence that had been imposed as a result of a substantial miscarriage of justice which was of such a magnitude that a stay of proceedings could have been granted ([11]) to prevent an abuse of process, his admissions were tainted.

When judges are resisting coming to a conclusion that should be obvious, they tend to call the case a hard one. A cynic might say it wouldn't be hard if they got it right. Lord Dyson repeatedly referred to this case as difficult, and Lord Rodger also noted the Court of Appeal’s difficult decision, Lord Mance didn’t find it an easy case, but Lord Brown dissenting didn’t find it difficult at all ([105]). Lord Rodger acknowledged that he had changed his mind since the hearing; had he not done so, the result of this appeal would have been different.

From this you can guess that the majority held that the admissions were not tainted and that the Court of Appeal had rightly ordered a retrial. Lord Dyson delivered the leading judgment in which he reasoned that the admissions were voluntary and were made in what Mr Maxwell then perceived to be his own interests [26]. So, while they would not have been made but for the tainted proceedings, there were other relevant factors to take into account. Only one [31] was mentioned here: the seriousness of the offending (but Lord Brown at [104] adds the strength of the case against the defendant as another). Lord Dyson also accepted that the Court of Appeal was right to think that the admissions were untainted in the sense that the police did not intend to obtain them when they were indulging in the serious misconduct [32].

This reasoning seems a bit fragile. Lord Dyson also thought that there are two balancing exercises: a narrow one to decide whether there had been an abuse of process, and a wider one to decide whether to require a retrial [21]. But, you might think, a retrial would be pointless if the evidence was inadmissible on abuse of process grounds, and if the abuse was not sufficient to exclude the evidence, how could there be an objection to a retrial? Wasn't Lord Brown right to say [98] in his dissent that it is really all one question of balancing the conflicting public interests of convicting the guilty on the one hand and maintaining the rule of law and the integrity of the criminal justice system on the other?

The result is fact-specific, and Lord Brown recognised [103] that if Mr Maxwell had made his admissions after his conviction was overturned there would have been no objection to a retrial.

Lord Collins, also dissenting, added [115] that a retrial was inappropriate because of the seriousness of the police misconduct, the fact that the admissions would not have been made but for the conviction so procured, and Mr Maxwell had served a substantial sentence.

Well, you can't say it isn't an interesting case. There are some useful summaries of the law on stays of proceedings [13–14], abuse of process [15-16], and of course the interests of justice in relation to deciding whether to order a retrial. The Court did not find it necessary to consider whether the duty to stay proceedings to prevent abuse of process where evidence had been improperly obtained is rightly conceived as a balancing exercise involving the seriousness of the offending: see my discussion of Warren v Attorney-General of the Bailiwick of Jersey on 31 March 2011. Where a stay would, as here, have been appropriate at trial, the court is saying that regardless of whether the defendant is guilty, the official impropriety was so serious that mere exclusion of tainted evidence would be insufficient to uphold the administration of justice. The admissibility decision does take into account the seriousness of the offence, but here the court says the impropriety has outweighed that. In such circumstances, subsequent discovery of new evidence of guilt would be irrelevant. Existing statutory provisions empowering courts to permit retrials of acquitted persons do not apply where stays have been ordered, nor do they require the seriousness of the offence to be taken into account, partly because they only apply to serious offences or to all offences where an acquittal was obtained by the defendant's perversion of the course of justice (obviously I generalise here: check your own statutes).

The misconduct here was indeed something rotten in the state of England. Like the ghost it craved justice but the new day brought new concerns

" ... It lifted up its head and did address

Itself to motion like as it would speak;

But even then the morning cock crew loud,

And at the sound it shrunk in haste away

And vanish'd from our sight."

Substantive and procedural fairness

Procedure is the means by which the law is brought to life. It converts words to actions. The law recognises a right to a fair trial, and this is a substantive right. To convert fairness from a right to a reality, rules of procedural fairness have developed. These rules will be effective to the extent that they produce trials that are substantively fair.

We need to know what a fair trial is in substance, and by what procedure to get it. The scope of a court's inherent power to create procedures that have implications for trial fairness was considered in Al Rawi v The Security Service [2011] UKSC 34 (13 July 2011). Note the helpful summary provided in the link at the top of the judgment.

This case concerned an extension to the Public Interest Immunity procedures (as to which see R v Davis [2008] UKHL 36, noted here 19 June 2008) which is called the "closed material procedure". This would go beyond PII by allowing the judge to see - and to decide the case on - material not shown to a party, and by allowing judgments to be given that were similarly not disclosed. The Supreme Court held (I generalise here and so am a little inaccurate in the interests of brevity) by a majority that only the legislature could create procedures that departed from the fundamental principles of open justice and natural justice.

While the Court recognises the power of Parliament to make procedural laws that limit the open justice principle and the natural justice principle, does it concede that the courts would require proceedings to continue if those laws had the effect in a particular case of making the trial substantively unfair? Would there be a difference in this between criminal and civil cases?

(20 marks)

Changing perceptions of fairness

The law seems to move rather slowly for poor people in Trinidad and Tobago, if Krishna v The State (Trinidad and Tobago) [2011] UKPC 18 (6 July 2011) is anything to go by. The murder occurred on 26 May 1984, the conviction at trial was on 12 January 1988, the appeal to the Court of Appeal was dismissed on 5 October 1995, and the Privy Council quashed the conviction, refusing to order a retrial, just the other day.

The case is a lesson in how perceptions of trial fairness can change over time. The trial seems to have been conducted according to the law as it then was as far as a direction to the jury on the reason the judge had ruled a confession admissible was concerned. The judge told the jury that he had decided that the statement had been made voluntarily. The law on this changed subsequently, so that it is no longer proper for the judge to reveal to the jury a decision on admissibility: Mitchell v The Queen (Bahamas) [1998] UKPC 1; [1998] AC 695. This was therefore an error relevant to this appeal.

Another ground of appeal was the failure of the judge to give a proper accomplice direction. The Court of Appeal had applied the proviso on this point, but the Board considered this to be a material irregularity in the context of the judge's positive comments about that witness. The law on accomplice directions had been established in Davies v Director of Public Prosecutions [1954] AC 378, so this is not a point about changing perceptions of fairness. 

A third ground of appeal was that the judge had not given an adequate good character direction. The Board considered that on its own this would not have been sufficient to shake the safety of the conviction, and that because this was not a case where the defendant had given evidence and put his credibility against that of other witnesses, it would ignore this ground. But significant for my point about changing perceptions of fairness is the increased importance of good character directions that was established in developments in the law after this trial: R v Aziz [1996] AC 41. Had the trial occurred after Aziz, a stronger good character direction would have been required, although in this case its absence may not have been decisive (compare Brown v R (Jamaica) noted here 21 April 2005; Gilbert v R (Grenada) noted here 29 March 2006).

Mr Krishna was ordered, after 23 years in custody as a sentenced prisoner, to be immediately released:

"Strong though the evidence against the appellant was, the Board is unable to conclude that the jury would have inevitably convicted the appellant if these irregularities had not occurred."

Will there be an award of compensation? Better not to hold one's breath. Clearly the trial had been unfair, because it could not be said that the jury was impartial: the judge's comments on voluntariness indicated a preference for the police witness's credibility, and lack of an accomplice warning also told against impartiality. Given that the trial had not been fair, the conviction could not stand. The Board's comments on the strength of the case against the appellant were made in the context of whether to order a new trial, and as one was not ordered, compensation would be appropriate even under the meanest regimes; see my discussion of compensation here on 15 May 2011.

When time is broke ...

"What is dawn in the city to an elderly man standing in the street looking up rather dizzily at the sky?"

This sentence from the penultimate paragraph of Virginia Woolf's work of consummate genius, "The Waves", has been with me since I first read it in the '70s. So has Shakespeare's wonderful

"I wasted time, and now doth time waste me."

Time's measurement has in the last six weeks caused ructions in the United Kingdom, where the legislature is set to uphold a practice which was based on a misconception about time. An interpretation of provisions allowing the police to detain suspects for questioning for no longer than a specified period, which could be extended, had been followed without judicial consideration for over 20 years. Then someone said, just a minute, is this legal, what does the statute mean? It did not mean what it had been assumed to mean: R (On the Application of the Chief Constable of Greater Manchester Police) v Salford Magistrates' Court [2011] EWHC 1578 (Admin).

The legislature seems eager to establish the position as what the police had thought it to have been rather than what it probably seemed to the original enactors to have been. The police snap their fingers, and the legislature obeys.

In a general sense, the interpretative dispute was over whether time should be measured as if it flows continuously from a specified moment, or as if it is a series of discrete periods which are to be considered in their aggregate.

The kind of people who are reminded by this of passages from Virginia Woolf and Shakespeare will also remember that Zeno's arrow paradox cautions us against the perils of dividing time, while his tortoise paradox shows that division of events can also be problematic.

Don’t let me spoil this one by quoting ...

There are rare moments when a brilliant judgment makes others look vapid and pathetic. So it is with Judge Bonello's roasting of the House of Lords and of the United Kingdom government's arguments in Al-Skeini v United Kingdom [2011] ECtHR 1093 (7 July 2011). Even the Grand Chamber judgments with which he concurred seem inept by comparison, fumbling with a subject which he has firmly in his grasp. Compulsory reading for anyone who would be an advocate or a judge.

Sorts of fairness: abuse of process, plea bargaining and the stay of proceedings

There is something unsettling about R v Nixon, 2011 SCC 34 (24 June 2011). It is the possibility that an issue of trial fairness may be determined by a balance between societal interests and individual concerns.

The conceptual scheme that allows this possibility was set out in the Court's judgment, delivered by Charron J, at [33-42]. The first point is unexceptional: there are two categories of abuse of process – those which concern trial fairness, and those which raise the integrity of judicial process [36]. The unsettling thing comes next [38]:

" ... Achieving the appropriate balance between societal and individual concerns defines the essential character of abuse of process."

Nixon had nothing to do with trial fairness (this was hesitantly – because of lack of clarity in the submissions - recognised at [55]). It was about what can be called public policy fairness: whether in this case a plea bargain could be rejected by a more senior prosecutor. That sort of fairness does indeed involve a balance between societal interests and individual concerns. Instead of calling it public policy fairness, you could call it "the proper and fair administration of criminal justice" as Charron J does at [63]. My impression is that the conceptual framework that emerged from the precedents relied on in Nixon wrongly equates substantial fairness with administrative fairness.

The placing of trial fairness (that is, not public policy fairness) in the first category of abuse of process and within the balancing exercise was purportedly illustrated at [39-40] by reference to a case concerning whether requiring the defendant to undergo a third trial after two juries had failed to agree was an abuse of process. That case, R v Keyowski, 1988 CanLII 74 (SCC), [1988] 1 S.C.R. 657, was really about public policy fairness. There was no suggestion that a third trial there would not itself be a fair trial.

It is easy to confuse trial fairness with public policy fairness. I suggested that the Privy Council did this in Boolell v The State (Mauritius) [2006] UKPC 46, noted here on 18 October 2006.

Canada recognises that the defendant's right to a fair trial is an absolute right, not subject to balancing: for example R v Ahmad, 2011 SCC 6, discussed here on 22 February 2011. This makes the framework of analysis set out in Nixon rather misleading.

Aside from that difficulty, Nixon makes some useful points about the scope of prosecutorial discretion and its relationship with the court's duty to prevent an abuse of process.

I should add that while a balancing of competing interests will determine whether public policy supports a finding of abuse of process, a balancing of competing interests will not determine whether a trial was or would be fair. Yes, balancing of subsidiary rights may be required in order to resolve an issue, but once that balancing is done the result must be assessed for compliance with the defendant's right to a fair trial. An illustration is R v H [2004] UKHL 3, at [36], concerning whether a trial could be fair without disclosure of the identity of a witness.

Furthermore, abuse of process as originally conceived was thought to cover a relatively narrow field of wrongs, but it has since been recognised that it is a more general concept. Once one adds within its scope the issue of trial fairness, this extended application is evident. Any substantial miscarriage of justice can be said to have caused trial unfairness and so be an abuse of process. That includes anything that would give rise to a successful appeal against conviction. More interesting is the choice of remedy once such an error has been identified. Can it be put right by a warning to the jury? Should it result in exclusion of evidence that otherwise would have been admissible? Or, most drastically, should the proceedings be stayed? Different forms of decision process apply to the choices. When a judge has to decide whether to warn a jury, or to exclude evidence, the decision is reached by the well known weighing of probative value against risk of illegitimate prejudice. When the choice is between warning the jury and staying the proceedings, the decision turns on whether there would be an unacceptable risk of an unfair trial, and that is not a balancing exercise. When the choice is between excluding tainted evidence and staying the proceedings, the decision is one of public policy balancing. I have discussed this in more detail in "The Duty to Prevent an Abuse of Process by Staying Criminal Proceedings".

What price access to justice?

Today our new Legal Services Act 2011 comes into force, just as we are digesting Lady Hale's Sir Henry Hodge Memorial Lecture, "Equal Access to Justice in the Big Society". There is thoughtful comment on this lecture at UKSCblog on 30 June 2011 by Anita Davies.

Our legal aid system is said to cost too much, and the government seeks to reduce what it calls a "$402 million dollar gap in the legal aid budget".

Of course this "gap" is the difference between what provision of legal aid has actually cost and what the government would like it to cost. It is, if you like, a budgeting aspiration. If we were a wealthier country, the cost of legal aid would be of no concern. I state that truism to emphasise that the government's concern is fiscal.

I am just focusing on the money here because it is singled out as a government goal. Other goals have been addressed in the new legislation, and these concern the quality of legal representation. There is nothing wrong with that. One of the ways by which the government intends to improve the quality of legal representation is by increasing the quantity of criminal work handled by officers of the Public Defence Service. Again, I see nothing wrong with that. In fact I think it is a miracle that someone persuaded the previous government that public money should be spent on training lawyers.

One of the sources of legal aid costs in criminal cases is, as Lady Hale points out, the large amount of work that is required of lawyers at the early stages of even cases that are not particularly serious. Case management and its associated workloads have not proven to have saved money.

On the other hand (this is me again, not Lady Hale) there seems to be no shortage of lawyers who are willing to do legal aid work. The obvious cost-saving strategy would be to decrease legal aid rates of pay. This would deter some lawyers from any involvement with legal aid, but new lawyers would step in to fill this "gap". They would, thanks to the quality of representation safeguards, be fit for the job. Theoretically anyway.

That would satisfy people who think lawyers earn too much money. Perceptions of lawyers' pay are probably exaggerated by the publicity given to some extreme examples. But even those lawyers who have received large legal aid remuneration have worked very hard for it. Against the median pay received by legal aid lawyers, once outliers are ignored, one would have to weigh the time spent, the stress of the work, the office overheads, and the risks of complaints of negligence made by disaffected former clients, before deciding whether lawyers are paid too much.

The real problem may be that the government has an unrealistic expectation of how small the budget for legal aid can be.

Deterrence or rights protection: why exclude improperly obtained evidence?

Davis v United States (2011) USSC No 09-11328, 16 June 2011 emphasises the rationale for declining to exclude evidence obtained by unreasonable search that had been established in Herring v United States (discussed here 15 January 2009). This is that evidence should be excluded if doing so would have a deterrent effect against police misconduct. At the time of the search in Davis, the search was lawful, but afterwards the law was changed by Arizona v Gant (noted here 22 April 2009). That meant that there was, at the time of the search in Davis, nothing to deter, and the evidence was admissible notwithstanding the later change in the law.

What this sort of deterrence aims at is police conduct that is in flagrant, deliberate or reckless disregard for the Fourth Amendment rights. Where the police act in good faith, or where they are merely negligent, and they violate the defendant's rights, deterrence is not called for and exclusion of the evidence would not "pay its way".

A more rights-centred approach to exclusion of improperly obtained evidence pertains elsewhere, but you knew that.

Public Defence Service costs and private bar legal aid costs

A spat looms on whether the Public Defence Service is more expensive than having legally aided criminal cases dealt with by the private bar:

Wellington, June 24 NZPA - The Government wants to save money by expanding the Public Defence Service (PDS) but Labour says the United Kingdom experience shows it is more costly.

The Government intends to increase the PDS' share of the criminal caseload from 33 percent to 50 percent.

Criminal lawyers have argued the PDS was incapable of delivering a competent and independent service, lawyers would be less experienced, clients would be pressured into pleading guilty and that it would be more costly.

Justice Minister Simon Power and the PDS disagree, saying it was working well.

Labour MP Charles Chauvel said today that the latest review of the PDS in England and Wales showed costs between 41 percent and 58 percent higher than independent lawyers providing the same services.

It also raised concerns about how PDS costs were calculated.

Mr Chauvel called for Mr Power to release full costs of the PDS.

"The Justice Minister hopes to cut legal aid costs by significantly expanding the Public Defence Service (PDS) — a public service entity — at the expense of independent lawyers providing legal aid," Mr Chauvel said.

"Labour created the PDS and continues to support its existence. But we never intended to expand it as Simon Power wants to. It was always our view, and it remains our view, that independent lawyers should provide the bulk of criminal defence work, for efficiency and equity reasons."

Mr Power said the UK report was published in 2007 and Mr Chauvel was not comparing apples with apples.

"The criminal legal market in the UK is quite different to that in New Zealand," Mr Power said.

"In the UK there is already an extensive network of private firms providing criminal services, making it difficult for their PDS to build market share.

"In New Zealand rotational case assignment will see the PDS receive cases on a regular basis."

Mr Power said expanding the PDS was not just about addressing the cost of legal aid funding.

"It was also recommended by Dame Margaret Bazley in 2009 to improve the quality of legal aid services," he said.

I emphasise the "apples with apples" bit because it raises an interesting point about how to compare the costs of the PDS with those of the private bar.

The idea used by Mr Chauvel in this media report seems to be that the relevant costs will decrease as more work is done. This supposes that the relevant calculation is costs per case.

I think that the better calculation is costs per funded hour in court by counsel appearing in a case. So, for a year, take the total costs that are publically funded for the practice, and divide it by the total publically funded hours spent by counsel from that office in court. For the private bar, average those costs per hour to get costs per hour per firm, and then compare that average to the costs per hour for the PDS office.

This way of looking at it asks how much does it cost to put a PDS lawyer in court compared to putting a publicly-funded private lawyer in court. The "apples" are court-hours. This is a neutral basis for comparison. If the "apples" were cases the comparison would be complicated by the various kinds of cases and whether the best legally available outcome for the client was achieved in each.

Bring on the holidays!

Grown-ups will remember when we used to use the pejorative term Kafkaesque. This word comes to mind on reading R v EMW 2011 SCC 31 (17 June 2011). To call the opinions "reasons for judgment" is an exaggeration. They read more like an inadequate headnote. Perhaps the unsuccessful appellant will be wondering if the judges really earned their pay on this one. It is impossible to evaluate the strength of Fish J's dissent. And while we must accept the majority's conclusions there seems to be no discernable lesson to the Court of Appeal, whose majority decision was overruled. Just a difference of opinions. I think a court of final appeal has a duty to explain itself more clearly.

The majority disagreed with the  Nova Scotia Court of Appeal majority (and apparently too with the dissenting judge in that court who seems to have accepted this point) as to whether Crown questioning of the complainant had been leading. The questioning is set out at para 80 of the NSCA majority judgment and more extensively at [118] of the dissenting judgment of Fichaud JA. At trial, after a stick drawing of a female person had been drawn by the prosecutor and the complainant had drawn a circle in the general vicinity of where the defendant had been touching her inappropriately, the questioning continued (I insert numbers for the questions):
"1. Q. Yes. What’s that part of the body on a female called?
A. Vagina.
2. Q. Vagina. And was your dad touching you on the vagina? 
A. Yes.
3. Q. And when he touched you on the vagina, was it outside of your vagina or inside of your vagina?
A. Inside.
4. Q. What part of his body was he using to touch the inside of your vagina?
 A. His fingers.
 5. Q. Was he on the inside or the outside of your clothes when he was doing this?
A. Inside.
6. Q. So you would wake up and your dad’s hand would be down your pants, and his fingers would be in your vagina?
A. Yes."

The Supreme Court majority held [9] that this was not leading questioning. But did it suggest answers or assume a state of facts that was in dispute? Q2 leads; it should be "Where was your dad touching you?" Q3 should be "Which part of your vagina was he touching?" Q5 should be "Were you wearing anything?" then, "Where was his hand compared to your clothing?" Q6 should be "When did you notice that?"

An interesting point concerns Fichaud JA's treatment of the defence cross-examination on these matters. Fichaud JA regarded the defence tactic of getting the complainant to repeat this evidence (by questions which in cross-examination are not, of course, objectionable for being leading) as defeating any objection that could have been made at trial to the Crown's leading of the same evidence. I should say that the defence cross-examination technique was flawed: it was wrong to get the complainant to repeat her evidence in chief; counsel should merely have led the inconsistent statement and then put the proposition that both were lies. But, given that counsel chose to repeat what in the hands of a prosecutor was objectionable, did this create a sort of estoppel on appeal against objection to the prosecutor's leading? I think not, because if the questions had not been allowed in chief they would not have been repeated in cross-examination.

The Supreme Court did not address this. Nor did it explain why the questions were not leading, except to say that binary questions (giving the complainant a choice between two alternatives, as in Q3 and Q5 above) did not here suggest an answer. Well, in the context of this case those questions were peripheral: the point was the allegation that the defendant was touching her vagina. Inside or outside vagina, or inside or outside of clothing, was of secondary importance. But in any event, binary questions are not necessarily acceptable, as they serve to reinforce the preceding answer, here that the vagina was touched, and that clothing was worn.

Oddly McLaughlin CJ for the majority said, on the issue of whether the questions suggested answers or assumed facts that were in dispute, that they "did not cross this threshold". There is a threshold? They were sort of leading but not quite? Is there a category of questions that are acceptably leading in a context where leading is prohibited? The majority did not say, yes, these were leading questions, but in this case the complainant was young and the prosecutor was having difficulty getting her evidence, so the judge was right to allow these questions. If that was what the majority intended, it would be controversial. Compare the remarks of the New Zealand Court of Appeal in R v E (CA308/06) [2007] NZCA 404, [2008] 3 NZLR 145 at [25]:
" We are conscious that there are some cases and commentators which suggest that leading questions may be allowable where young children are concerned . . . Given what is now known about the importance of using open-ended questions when interviewing children, these authorities should be treated with caution. We note, in any event, that under s 89 of the Evidence Act 2006, there is no exception to the prohibition of leading questions where a child is being questioned."

Risks, aversions, coercion, and provocation

A clutch of recent Privy Council decisions: the risks of dock identification, the Board's aversion to the death penalty, jury perception of coerced confessions, and puzzling over provocation.

R v Tido (Bahamas) [2011] UKPC 16 (15 June 2011) has some useful dicta on dock identification, application of the proviso where inadmissible evidence had been before the jury, and on the discretion to impose the death penalty in the worst cases of murder.

In Miguel v The State (Trinidad and Tobago) [2011] UKPC 14 (15 June 2011) there is an interesting point reiterated about the Mushtaq direction ([2005] UKHL 25, discussed here on 22 April 2005 and also, in the context of Wizzard [2007] UKPC 21 here on 6 April 2007). This is that there is a distinction between on the one hand denial that a statement was made at all, as where the defendant says the police coerced him to sign a confession they concocted, in which case the Mushtaq direction does not apply, and on the other hand acknowledgement that the confession was his but that it was coerced. In the latter case, where the question concerns the voluntariness of an acknowledged confession, Mushtaq does apply so that the jury must be directed to ignore it if they think it may have been obtained by coercion. This was the explanation of Mushtaq that had been given in Wizzard.

Although Mushtaq is discussed as if voluntariness were an issue on which the jury had to be unanimous, it seems obvious that unanimity is not required because each juror may find his own route to a decision on guilt, and it is only on the verdict that the members must be unanimous. So if a juror relies on the confession, that juror must be satisfied (beyond reasonable doubt - the standard applying to voluntariness here) that it was made voluntarily.

In Miguel the Board, once again, found a way to avoid upholding the death penalty. This time the reasoning focused on the interpretation of constitutional legislation.

The third decision of the Privy Council addresses provocation and fresh evidence that could be relevant to that defence: Lewis v The State (Trinidad and Tobago) [2011] UKPC 15 (15 June 2011). Provocation has been replaced in England and Wales by the partial defence of loss of control: ss 54-56 of the Coroners and Justice Act 2009[UK], and Lord Brown for the Board commented [28]:

"...whatever difficulties may arise in England and Wales from the introduction last October of the new defence of loss of control in place of provocation, at least there will be fewer problems of the kind discussed above. The courts in Trinidad and Tobago however, must soldier on. It will now be for the Court of Appeal there to consider the question of provocation in the present case. We have no alternative but to remit the matter to them."

In Lewis the problems concerned identifying conduct by the victim that could qualify as provoking the defendant to lose self-control. Mere causing loss of self-control is insufficient, because then provocation would need to be considered whenever self-defence was raised (R v van Dongen (Anthony Gerrard) [2005] EWCA Crim 1728; [2005] 2 Cr App R 632 at para 42, quoted in Lewis at [16]). In Lewis the judge had decided not to leave provocation to the jury, and the Board upheld that (although because of fresh evidence the case was remitted to the Court of Appeal). This reflects a view that what is sufficient evidence of provocation is not a question of law but is best left to the common sense of the trial judge [13, 21]. It is necessary to distinguish killing as revenge from killing as a result of loss of self-control, but the Board felt it unhelpful to try to separate out the evidence of provocation from evidence of loss of self-control [15]; they are closely connected aspects of the first limb of provocation (the subjective requirement that the defendant was provoked into losing his self-control). This first limb is regarded as "a single composite" [16], and the judge will refuse to leave provocation to the jury if he concludes that it would be perverse for a jury to find that a reasonable person would do what the defendant did.

An illustration of a controversial reliance on provocation is Weatherston v R [2011] NZCA 276 (17 June 2011), a case which was a major motivation for the repeal of this partial defence in New Zealand. Our national sense of horror is such that we have yet to replace it with anything like loss of control. The difference between Lewis and Weatherston is small (I mean here that in each the defendant claimed to have lost self-control as a result of his sensitivity to the consequences of a terminated sexual relationship), and it is likely that if the judge in Weatherston had refused to leave provocation with the jury the Court of Appeal would have upheld that decision, and, in that event, our crisis over the existence of this partial defence may well not have occurred.


Although the best barristers say very little, I, by way of contrast, can add a bit about provocation. Earlier I mentioned Attorney-General for Jersey v Holley [2005] UKPC 23 (see the entry for 5 July 2005), and it is worth calling to mind the two-stage inquiry by which courts address issues of provocation. First, what level of provocation can the defendant properly claim to have experienced? This requires considering how a reasonable person with the defendant's characteristics would have felt the provocative words or conduct. It is a mix of objective and subjective considerations. No doubt one could fairly say it requires a considerable exercise of imagination to assess. Second, given the level of provocation assessed in that way, does it exceed the level that a reasonable person ought to be able to tolerate without losing self-control? This is an objective question. These questions  can be modified when the issue is whether provocation is a live issue in the case:  is there evidence of acts or words that could reasonably be taken as requiring an exercise of self-control by the defendant, and, if so, could it reasonably be concluded that the exercise of self-control so required was beyond the ability of a reasonable person to exercise? This latter question determines whether a loss of self-control could have been through provocation as opposed to being the result of malice.

How do the new "loss of control" provisions applicable to England and Wales, referred to above, deal with these issues? On the first question, the s 55 definition of "qualifying trigger" sets the objective standards for the nature of the provocative act or words (serious violence, extremely grave circumstances, justifiable sense of being seriously wronged), and the subjective requirements are in s 54 (loss of self-control caused by a qualifying trigger). The second question, whether a reasonable person would have lost self-control if subjected to the level of provocation experienced by the defendant, appears in s 54(1)(c), which sets the standard as that of a person of the defendant's age and sex and who has "a normal degree of tolerance and self-restraint". Overall, and I only generalise because there will be a lot of interpretative issues, this legislation has the important effect of ensuring that only seriously provocative acts or words can be the basis for this qualified defence.

The unsaid unchartable universe

The more one says, the more one does not say. The universe of discourse is infinite. This is why attacks on reasoned judge-alone decisions must be constrained: a judge cannot anticipate every possible attack that might be made by imaginative appeal counsel.

It is necessary to avoid creating an "unchartable universe of appellate review", as Abella J so picturesquely put it in R v O'Brien 2011 SCC 29 (9 June 2011), writing for herself, McLaughlin CJ, Deschamps, Rothstein, and Cromwell JJ.

So, if a judge says he relies "entirely" on particular evidence, this is not to be taken to mean he was unconsciously influenced by other, inadmissible, evidence. It means the opposite: he deliberately ignored what was inadmissible.

"17. A trial judge has an obligation to demonstrate through his or her reasons how the result was arrived at. This does not create a requirement to itemize every conceivable issue, argument or thought process. Trial judges are entitled to have their reasons reviewed based on what they say, not on the speculative imagination of reviewing courts. As Binnie J. noted in R. v. Sheppard, 2002 SCC 26 (CanLII), 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55, trial judges should not be held to some "abstract standard of perfection"."

Even so, there can be room for disagreement on appeal about what the judge meant, as occurred in this case. The way to avoid this is for judges to be specific about their treatment of inadmissible evidence, even if counsel had not objected to that evidence at the trial.

Raising the bar

For a collection of articles illustrating brilliant scholarship in our areas of interest, see the Journal of Commonwealth Criminal Law, available at the website of the Association of Commonwealth Criminal Lawyers.

New complications for old

Mahomed v R [2011] NZSC 52 (19 May 2011) shows that the law of similar fact evidence is still contentious. It has recently been reformed, by calling it propensity evidence and by enacting it. Sections 40-43 of the Evidence Act 2006 [NZ] replace the common law on this topic.

In Mahomed the Supreme Court split 3-2 over what items of evidence were included as propensity evidence. The majority focused narrowly on one incident, and the minority said it was artificial to take an "atomistic" approach [73] and instead the overall pattern of events had to be looked at. The same split occurred on whether the propensity evidence was admissible: the majority said the one incident was only admissible on one of the four counts, whereas the minority said the overall pattern of events was admissible on all counts.

Further, the judges split into the same groups on whether it was appropriate to consider in detail the kinds of directions that juries should be given. The majority chose not to go into this, whereas the minority analysed the use and risks of propensity evidence, when a direction should be given and what it should say.

Conveniently, the consistency of the split between the members of the Court made it only necessary to deliver two judgments. The majority judgment of Elias CJ, Blanchard and Tipping JJ was delivered by Tipping J, and for the minority William Young J delivered the judgment of himself and McGrath J.

As the majority found there had been a miscarriage of justice arising from the way the judge had instructed the jury (he had followed a Court of Appeal ruling in this case – R v Mahomed [2009] NZCA 477 - which had held that the evidence was admissible on all counts), it had to consider whether to apply the proviso. As it happened, doing this by applying R v Matenga [2009] NZSC 18 (an approach I have criticised here, for example on 20 July 2009 and 1 January 2010) involved no greater discussion of the prosecution case that would the more conventional method for deciding conviction appeals which asks whether there was a real possibility that the error at trial affected the verdict (see Fraser v HM Advocate [2011] UKSC 24, discussed here on 26 May 2011).

The Mahomed minority's analysis of types of propensity evidence, identifying categories and sub-categories, and allowing that some instances may require swapping between categories depending on the strength of the evidence, leaves one wondering if the subject is set to become, once more, over-academicised. Complications arising from "coincidence" reasoning (eg at [51]) tend to confuse rhetoric with substance. When a prosecutor argues that either the defendant is guilty or that he is the victim of an amazing coincidence through being falsely accused by independent complainants, that rhetoric is really a reflection of the denominator of the Bayesian likelihood ratio: the low probability of getting the accusations on the assumption that the defendant is innocent.

The prosecutor's argument is sound, but it does not generate a new category of propensity evidence (see [85(a)], and [87] where Hudson v R [2011] NZSC 51 is said in footnote 50 not to be an appropriate case for coincidence reasoning). But coincidence is just another word for "low probability" and as para [59] of Hudson points out coincidence reasoning there was unnecessary as it would have duplicated ("elaborated") what the judge had told the jury. The prosecution would have said there that as the defendant had a motive, commission of the offence by someone else would by an unlikely coincidence. It comes down to the low probability of getting the evidence of motive on the assumption of innocence, and the high probability of getting it on the assumption of guilt.

There was unanimity on the relationship between the balancing exercises in s 8 and s 43 which both address probative value and prejudicial effect. In the context of propensity evidence, s 43 is the sole balancing exercise: majority at [5], minority at [66-67]. The minority do, however, accept a theoretical case of equal balance, but I think that is a misconception. The balancing metaphor in both sections does not work like a weighing of commodities. What needs to be avoided is a real risk of unfairness to the defendant, and probative evidence can "outweigh" that risk if admission of the evidence does not give rise to that risk. The Court of Appeal recognised this in  Vuletich v R [2010] NZCA 102 per Glazebrook J at [27] and Randerson J at [96], rejecting a suggestion that had been made in Stewart (Peter) v R [2008] NZCA 429 by Baragwanath J to the effect that highly probative evidence could only be inadmissible if it gave rise to a level of illegitimate prejudice that was even greater. It would have been useful for the Supreme Court to have addressed this fundamental issue in Mohamed.

Non-disclosure and trial fairness

An appellate court often has to ask whether a trial was fair. Statutory requirements for allowing conviction appeals usually include "a miscarriage of justice". What does that phrase mean for the purposes of assessing whether the trial was fair? The United Kingdom Supreme Court addressed this in Fraser v HM Advocate [2011] UKSC 24 (25 May 2011).

In this case information had not been disclosed to the defence, and had it been disclosed the conduct of the case for each side would have been different. Therefore, non-disclosure here went to the question of trial fairness [32].

The question of trial fairness is not answered by considering what verdict the appellate judges would have reached at a hypothetical trial [38]:

"One cannot, of course, avoid making some assumptions as how the trial might have been conducted if the material had been disclosed to the defence. It will always be a question of degree as to how far it is proper to go in carrying out that exercise. But the purpose of doing this is to assess the extent to which, having regard to the way the case was conducted by the Crown, the material would have weakened the Crown case or strengthened the case for the defence. It is on the case as presented at the trial that the court must concentrate, rather than the case as it might have been presented. It is not for us to speculate as to what the case might have been, much less how the jury would have reacted to it. What the Crown asks us to do, and what it persuaded the Appeal Court to do, was to consider the case on the basis that the discovery of the rings on 7 May was indicative of the appellant's guilt for completely different reasons from those advanced at the trial. In effect we were being asked to deal with the case as if we were a new jury trying the case for the first time. This is not permissible. Our task is quite different but entirely clear. As the Appeal Court said in McCreight v H M Advocate [2009] HCJAC 69, 2009 SCCR 743, para 95, it is not the court's task to decide what the outcome of the trial would have been if the trial had been conducted on an entirely different basis. We must ask ourselves whether, in the light of the undisclosed evidence, there is a real possibility that the jury at this trial would have arrived at a different verdict."

The trial would have been unfair if there was a real possibility that had the error not occurred the jury would have reached a different verdict.

The case illustrates how an appellate court should apply this test. At trial the prosecution had alleged that the defendant's guilt of his wife's murder was demonstrated by her rings that could only have been found where they were if he had removed them from her corpse. The non-disclosed evidence was that the rings had been at that location before she died.

"[39] The proposition that the appellant had returned the rings to the bathroom on 7 May was, as the Advocate Depute said in his address to the jury, the cornerstone of the Crown's case. It is clear, in view of the direction that was then given to them by the trial judge, that the jury must have concluded that the appellant put the rings in the bathroom on 7 May. This was the basis for the Crown's theory that he had obtained the rings from the deceased's dead body and had placed them in the bathroom to create the impression that she had left the matrimonial home with the intention of turning her back on the life that she had had there. This theory would have been undermined by the evidence of PC Lynch and WPC Clark. It would have been challenged by lines of cross-examination of the Crown witnesses that were never developed at the trial, and by questions that were never put to the appellant in chief or in re-examination. The point could have been made that it was improbable that, if the rings were in the bathroom on 28 and 29 April when the police visited the house, the appellant would have removed them and then chosen to return them on 7 May. The theory that he removed them from the dead body would, if the evidence of PC Lynch and WPC Clark were to be accepted, have been untenable. These and other arguments that the defence would have been able to develop would have struck at the heart of the case that the Crown presented. The trial would have been significantly different had the material that was not disclosed been available. There is a real possibility that this would have been sufficient to raise a reasonable doubt about the Crown's case that the appellant returned the rings to the bathroom on 7 May. If that were so, the jury's verdict would be bound in view of the trial judge's direction to have been different."

It was the real possibility of a different verdict that made the trial unfair.

Non-disclosure significantly affected the course of the trial. This was not a case of freshly discovered evidence, although I think the difference should be immaterial because the ultimate question is whether there is a real possibility that the omission affected the verdict.

I have suggested that all conviction appeals raise issues of trial fairness. This is because a fair trial is one where the law is properly applied to facts that are determined impartially. "Impartially" is used in a wide sense to include actual and apparent bias as well as inaccuracy. Even appeals challenging jurisdiction raise fairness in this sense, as without jurisdiction the law is not properly applied. Fresh evidence appeals also concern fairness, as the newly discovered evidence may demonstrate a real possibility that the verdict was wrong. There can be unfairness even if the verdict was not affected, where the law was not properly applied, but this was not that sort of appeal.

I have recently (7 April 2011) mentioned misuse of hypotheticals by appellate courts, and have also criticised the usurpation of the jury role by appeal judges, for example here (9 July 2009) and here (25 June 2007), and here (16 January 2006).

Writing for judges

Do not even consider living a day longer without reading these interviews with the Justices of the United States Supreme Court: The Scribes Journal of Legal Writing (2010) vol 13, available here.

Because brevity wins, I leave it at that, except to mention this teaser by Roberts CJ:

"What the academy is doing, as far as I can tell, is largely of no use or interest to people who actually practice law."

Avoiding the paperwork

The United States Supreme Court has handed police what may seem to be a legal way of searching homes without the need to obtain warrants: Kentucky v King USSC No 09-1272 (16 May 2011). When should a defendant's suspicious behaviour be ignored when the adequacy of grounds for a warrantless search is being assessed by a court?

The fundamental requirement is that there should be reasonable grounds for a search. The police need not apply for a search warrant, even if they have grounds to obtain one. The opinion of the Court, delivered by Alito J and joined by Roberts CJ, Scalia, Thomas, Kennedy, Breyer, Sotomayor and Kagan JJ (Ginsburg J delivered a dissenting opinion), mentioned five reasons for not requiring a warrant. They are set out at p 12 of the slip opinion. I summarise:

1. The police may wish to speak to the occupier to see if it is worth getting a warrant.
   
2. The police may want to ask the occupier for consent because that would be easier.
   
3. They may want more evidence before submitting a marginal application for a warrant.
   
4. They may want evidence to justify a broader warrant than they currently have grounds for.
   
5. They may not want to disclose that they have grounds for a warrant because that might alert other suspects.
   

These were held to be legitimate law enforcement strategies. There will, I acknowledge, be occasions when resort to them is reasonable. It may be absurd to require the police to hold off conducting a search while they apply for a warrant, as indeed it would have been on the facts of the present case. However, the danger is that the safeguards involved in the warrant procedure will be cast aside in favour of expedience on the basis of an imagined urgency. It would be easy for the police to claim that they heard what seemed to be an attempt to destroy evidence, and a citizen subject to warrantless search of his home would be unlikely to be able credibly to challenge its legality. It would be inappropriate for a judge to take any but a very cautious approach to evaluating the credibility of police claims of such urgency.


Nor is it appropriate to pretend that the police may always behave as if they were private citizens as far as door-knocking is concerned, as the majority do at p 16. Private citizens are not state agents collecting evidence to prosecute suspected offenders. It is disingenuous for the Court to hold that occupiers may "stand on their constitutional rights" and not answer the door or allow police entry, but if they "elect to attempt to destroy evidence [they] have only themselves to blame for the warrantless exigent-circumstances search that may ensue."

One would think that, on this approach, a refusal by an occupier to allow police entry would be understood by the police to be an attempt to preserve an opportunity to destroy evidence, and would therefore be justification for a warrantless entry and search.

The opportunities for abuse of powers in this context are such that, for people who regard the Fourth Amendment as a proper restraint on executive power, Ginsburg J's dissent may be considered the sole voice of reason in this case.

But the case is not about random door-knocking by the police. The police believed that the smell of cannabis was coming from a specific apartment. 

The ratio of this case is that in deciding whether a warrantless search was reasonable the court will need to consider all the circumstances, and unreasonable police conduct does not give rise to reasonable grounds. This is unobjectionable as a legal rule. If it had been unreasonable for the police to knock on the door in this case, the police would not have been able to rely on subsequent inferences they drew as to risk of destruction of evidence (the exigency). There was no evidence here (pp 17-18) that the police had acted unreasonably prior to entry, so (p 19) the exigency justified the warrantless entry. This was on the Court's assumption, for the purposes of argument (p 17), that there was in fact an exigency here. This assumption was only necessary if, without the exigency, there would have been inadequate grounds for entry. So the police here had reasonable grounds for knocking on the door but, at that point, not for entry, but when (if) the exigency occurred they had (would have had) reasonable grounds for entry. The case was remanded to the Kentucky Supreme Court for further proceedings not inconsistent with the Court's opinion.

A strange thing about this case is why exigent circumstances were relevant. If the police smell cannabis ("marijuana") smoke and establish that it is coming from private property, they would have reasonable grounds to believe that an offence was being committed and so could search without warrant:  for example, R v Gurnick [1999] NZCA 19, (1999) 16 CRNZ 513 (CA). But the position is different in the US, where there is a stronger preference for grounds to be assessed by a neutral official: Johnson v United States, 333 U.S. 10 (1948). In that case the smell of opium from a hotel room, without the risk of a suspect fleeing, or of destruction of evidence, was not grounds for a warrantless search.

Counter-intuitive evidence: should neutrality be sought?

Correction of wrong intuitions is important to prevent jury bias. Commonly held assumptions about the way a complainant should behave may unfairly affect the jury's assessment of that person's credibility.

Delay in complaining, or the continuation of a relationship between the complainant and the defendant, might be thought to undermine the credibility of the complainant. They may indeed undermine credibility on the facts of a particular case, but it would be wrong for the jury to apply a rule of thumb when assessing the evidence.

In M (CA23/2009) v R [2011] NZCA 191 (18 May 2011) the New Zealand Court of Appeal considered ways of countering the wrong intuitions that jurors may have about the significance of such circumstances to credibility. It referred in particular to decisions of the Supreme Court of Canada, R v DD 2000 SCC 43, [2000] 2 SCR 275, and the Court of Appeal of England and Wales, R v Miller [2010] EWCA Crim 1578. Expert witnesses may give evidence on the counter-intuitive significance of such circumstances, the judge may direct the jury on the dangers of making assumptions, or counsel may agree on a statement to the jury on the point.

Those techniques of countering wrong intuitions are aimed, said the Court in M(CA23/2009) at [25], adopting a comment by the New Zealand Law Commission, at restoring a complainant's credibility from a debit balance because of jury misapprehension, back to a zero or neutral balance. It needs to be added that the defendant should also be allowed to use these techniques to prevent wrong intuitions being used against him.

We might wonder whether the aim of setting the credibility balance back to neutral is necessarily correct. Some kinds of behaviour may well indicate reliability in general. Not everything is neutral. Delay may be neutral, but a quick complaint may in the generality of cases indicate reliability. The continuation of an apparently good relationship between the complainant and the defendant may be neutral, but a sudden breakdown of a relationship may in general indicate that the complaint is true. Or in turn those intuitions may prove to be false. What do the scientific studies show?

There is no reference in M(CA23/2009) to statistical data on the significance of types of behaviour to the truth or falsity of complaints. But at least we can say that logically it is necessary to compare the occurrence of the behaviour in the cases of true complaints, to its occurrence in the cases of false complaints.

The jury must not be left in the impossible position of having to use their collective common sense while at the same time treating as neutral behaviour that may well be useful in assessing credibility. How can a jury decide the significance of such behaviour in the particular case without putting it in a more general context?

Compensation for wrongful convictions

When should a person whose conviction has been quashed receive compensation? This question of entitlement is different from the question of quantum of compensation. Although it is arguable that the two questions should be considered together, they were not in Adams, R (on the application of) v Secretary of State for Justice [2011] UKSC 18 (11 May 2011).

Two poles are identifiable: one is that people who are actually innocent should receive compensation after erroneous conviction, and the other is that no one who is actually guilty should receive compensation after erroneous conviction. By "erroneous" conviction I mean not in accordance with the law.

The problem is to navigate between these poles when interpreting the criteria for compensation. In this case it was the interpretation of s 133 of the Criminal Justice Act 1988[UK] that governed the issue, in particular the phrase "a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice". The Court split 5-4 on what this should mean.

The dissenters were particularly revolted by the thought that a person who was in fact guilty might receive compensation after erroneous conviction. Lord Brown (with whom Lord Rodger agreed without delivering a separate judgment) said at [281]:

"Why should the state not have a scheme which compensates only the comparatively few who plainly can demonstrate their innocence – and, as I have shown, compensate them generously – rather than a larger number who may or may not be innocent?"

The minority would accept that some people who really were innocent should be denied compensation in the interests of avoiding giving compensation to the actually guilty. Other minority judges were Lord Judge and Lord Walker.

Lady Hale succinctly addressed Lord Brown's "palpable sense of outrage" [116]:

"Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty. A person is only guilty if the state can prove his guilt beyond reasonable doubt. This is, as Viscount Sankey LC so famously put it in Woolmington v Director of Public Prosecutions [1935] AC 462, at p 481, the "golden thread" which is always to be seen "throughout the web of the English criminal law". Only then is the state entitled to punish him. Otherwise he is not guilty, irrespective of whether he is in fact innocent. If it can be conclusively shown that the state was not entitled to punish a person, it seems to me that he should be entitled to compensation for having been punished. He does not have to prove his innocence at his trial and it seems wrong in principle that he should be required to prove his innocence now."

She agreed (as did Lords Hope, Kerr, and Clarke) with the test formulated by Lord Phillips at [55]:

"A new fact will show that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it."

The person does not have to show his innocence beyond reasonable doubt.

Under this test there will be occasions where people who are in fact guilty are entitled to compensation. Such cases may occur where, as Lord Brown mentioned at [280] a person against whom there is inadmissible intercept evidence that unequivocally demonstrates his guilt, could not on admissible evidence be convicted.

The answer to that difficulty is that compensation in such cases should be derisory only. An award of contemptuously small compensation would show society that the person was in fact guilty, and it would deter such people from seeking compensation.

It should be stressed that this case does not establish a meaning for "miscarriage of justice" beyond its specific statutory context. As Lord Phillips observed at [9], this phrase is capable of having a number of different meanings.

Although there are 284 paragraphs in the case, it is easy to read because the judgments are divided into consistent headings, and the dissenters are left to the end under their own heading. Other topics dealt with are the meaning in this context of the phrase "a new or newly discovered fact" and the relationship between the presumption of innocence and a claim for compensation.

In New Zealand this sort of compensation is governed by Cabinet Guidelines introduced in 1998. Claimants have to be alive at the time of the application, have served all or part of a term of imprisonment, had their convictions quashed on appeal without an order for retrial (or have received a free pardon), and must be able to prove on the balance of probabilities that they are innocent of the crime for which they were convicted. This is a more restrictive entitlement than in the UK. There is, however, a "residual discretion" that allows the Crown to consider claims falling outside the guidelines in "extraordinary circumstances" where it is in the interests of justice to do so. So, where a person is acquitted following a retrial he is outside the guidelines, so he must show "extraordinary circumstances" to demonstrate that it is in the interests of justice to award him compensation. This may well mean that if such a person is able to show to a standard higher than the balance of probabilities that he is in fact innocent, it would be in the interests of justice to award him compensation. The guidelines are not, therefore, unduly concerned with failure to compensate people who are really innocent, and they are arguably over-concerned with avoiding compensating people who are really guilty. Some flexibility in the quanta of awards could be a way of making the scheme more just.

The New Zealand Law Commission had recommended the requirement of proof of innocence and para 127 of its 1998 Report No 49 "Compensating the Wrongly Convicted" received citation in Adams, R (on the application of) v Secretary of State for Justice: [47] Lord Phillips, [173, 175] Lord Kerr. The Commission proceeded on the basis that actual innocence is the justification for compensation, but the majority of the United Kingdom Supreme Court held that excluding from entitlement people who no longer seemed to be guilty but whose innocence could not be established was a heavy price to pay for ensuring that no guilty person ever gets compensation (Lord Phillips at [50]).

The NZLC Report starts with a controversial assertion, saying in para 1 "The essence of a free society is the freedom of a law-abiding citizen to act without interference by the state." That begs the very question the state has been unable to answer lawfully. In view of the Report's conclusions, it is a tyrant's assertion, requiring the citizen to prove he is law-abiding. Instead, the essence of a free society is the freedom of all people, whether law-abiding or not, to act without unlawful interference by the state. The rule of law requires the state to prove that interference with the citizen's liberty is justified. The United Kingdom Supreme Court's majority approach survives the moral analysis advocated by Dworkin (see my review of "Justice for Hedgehogs" 25 April 2011), whereas the New Zealand one does not.

To put or not to put?

I suppose the most general lesson that can be learnt from the fact-specific decision of the High Court of Australia in Braysich v R [2011] HCA 14 (11 May 2011) is that rulings on whether there is sufficient evidence, at the conclusion of the case for the defence, for a defence to be put to the jury should not be based on narrow assumptions about how the evidence in the case is to be analysed.

Again, in the most general of terms, where it is an offence to do X but there is a statutory defence of absence of intention to do Y, and where the defendant has denied doing X, evidence about X might also be relevant to Y.

So, where a sharebroker facilitates the transfer of legal ownership of shares, when in fact the beneficial ownership does not change, he is deemed to have committed the offence of creating a false appearance of active trading in those shares, but he has a defence if he proves he did not have the purpose of creating that appearance (see para [5-8] of Braysich for the relevant legislation). The circumstances in which he transferred the shares may be relevant to whether he had the proscribed purpose. When he denies knowing that the beneficial ownership did not change, evidence of his good character will be relevant to that, and it will also be relevant to whether he had the proscribed purpose.

Obvious though this may be in retrospect, the Court split 3-2 on whether the defence case was sufficient to raise the defence of absence of the proscribed purpose. Heydon J agreed with Bell J and added [54] that all the defendant had done at trial was to point to evidence which, although not inconsistent with the absence of purpose did not actually support absence of purpose. Bell J [116] considered that there was no evidence of any purpose other than the impugned purpose. Although the defendant had acted for fees for valued clients, that could not, without more, establish that it was probable that he did not have that purpose. The majority, French CJ, Crennan and Kiefel JJ, held that on the view most favourable to the defendant the jury could well have asked whether it was really likely that an honest man who is acting on instructions from reputable people, who he has no reason to believe have a dishonest purpose, would himself have that dishonest purpose when he is aware of the business rules and the law [47], and that therefore the defence should have been put to the jury.

There was no disagreement about what the law is on whether a defence should be put to the jury. The relevant question in this case was [36]:

"In a case in which both the legal burden and the evidential burden rest upon the accused – is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to conclude on the balance of probabilities that the defence had been established?"

Why the big difference between the majority and the minority? I suspect the minority have taken the stance that unless an individual item of evidence gives rise to a probability of innocence greater than 0.5, it does not support the defence. This approach allows the minority to say that evidence that is merely consistent with absence of purpose does not support absence of purpose. The correct way to look at this, as Bayesian logicians tell us, is to ask what is the probability of getting the evidence, assuming the defendant is innocent, compared to the probability of getting it, assuming that he is guilty. Comparison of those probabilities, assessed intuitively, would indicate that each of the items of evidence relied on by the defendant was more likely to exist if he was innocent than if he was guilty, so they individually and in combination support the defence.

Offensive or disorderly behaviour

"Offensive or disorderly" behaviour in terms of s 4(1)(a) of the Summary Offences Act 1981 are

"two sides of the same coin, both directed at the preservation of public order. On this view, "offensive" behaviour is behaviour productive of disorder. It is not sufficient that others present are offended if public order is not disrupted. On the other hand, it is not necessary that the conduct be violent or likely to lead to violence since behaviour with that effect constitutes the more serious offence described by s 3 of the Summary Offences Act. The behaviour must however be such as to interfere with use of public space by any member of the public, as through intimidation, bullying, or the creation of alarm or unease at a level that inhibits recourse to the place."

Per Elias CJ in Morse v Police [2011] NZSC 45 (6 May 2011) at [2] and [33]. The other members of the Court agreed: Blanchard J at [62-65] (offensive behaviour may produce actual disorder or it may indirectly affect public order by wounding the feelings of or arousing anger resentment or disgust or outrage in a reasonable person who takes a balanced rights-sensitive view tolerant of the rights of the defendant); Tipping J at [69-71] (although ordinary notions of causing offence must be relevant so that those affected are substantially inhibited in carrying out the purpose of their presence at the place where the impugned behaviour occurred); McGrath J at [102-103,117] (ordinary notions of causing offence are relevant, but the interference must be beyond what a democratic society is expected to tolerate, it must be a serious interference with the standards reflected in community expectations); Anderson J at [124] (the legislation is concerned with public circumstances of more significance than discourtesy or private upset).


So that's the behaviour and the person it must affect. I don't agree with the Court's media release which states that Elias CJ dissented, perhaps with Anderson J, on the description of the impugned behaviour. One must not read a case as if it were a statute, and here the required minimum for liability is the ratio. Differences in diction should not distract from the core of agreement. Tipping J expresses his disagreement with Elias CJ at [69], stressing at [70] that conduct is not offensive just because someone who is unduly sensitive to it reacts in a way that threatens public order. But Elias CJ would not have used the standard of the reaction of anyone, instead at [40] she requires tolerance of expressive behaviour by people using public places, and holds that a disproportionate reaction would make a conviction substantively unreasonable. In short, although Elias CJ is concerned to avoid subjective things like mere annoyance without disorder counting as offensive behaviour [30-31], her definition of public disorder, quoted above, includes "the creation of alarm or unease at a level that inhibits recourse to the place" which, if you accept than an annoyed person may well wish not to have been there to see the offensive behaviour, is not significantly different from applying the standard of the tolerance of the reasonable person who is conscious of the defendant's rights. If there is a difference between the judges, it is superficial and hardly warrants being called a dissent.

The next matter is how to apply the criteria for the behaviour and the person it must affect to the facts of the case.

In Brooker v Police [2007] NZSC 30 (discussed here on 4 May 2007) there was a difference between the judges on whether a rights limitation or a rights balancing approach to this was appropriate, and the same difference is echoed by two of the judges in Morse. Elias CJ at [13-16] considered that the criminal law and limitations on rights must be capable of ascertainment in advance, and that balancing would be contrary to the need to give the legislation a meaning consistent with rights if it can (citing s 6 New Zealand Bill of Rights Act 1990), and that the first responsibility of the courts is interpretive. Her point is that the legislature carried out the only necessary balancing when it formulated the offence to require an impact on public order. McGrath J, on the other hand, held that balancing is appropriate when applying the criteria to the facts, so it must be carried out in the circumstances of each case [106-107]. A different metaphor, the reaching of a threshold of interference with the rights of members of the public, was used, expressly or impliedly, by Blanchard J at [64],Tipping J at [71], Anderson J at [127]. Elias CJ also favoured an objective standard for whether the defendant's conduct was disruptive of public order [39]. This is a direct application of the threshold requirement to the facts without engaging in an exercise of rights limitation or balancing.

The rights limiting model uses s 5 of the Bill of Rights to find the point at which a limitation on rights is justified, although it can be a matter of dispute as to whose right, the defendant or the victim, should be subject to justified limitation. The balancing model involves judicial weighing of the values that underlie the competing rights. McGrath and Thomas JJ did this in Brooker, but in Morse McGrath J combined balancing with the question of justified limitation under s 5. The threshold model is the preferred method for applying the criteria to the facts, in which the standard is what should be tolerated by the reasonable person who respects the defendant's competing right.

The case itself had been treated erroneously by the lower courts because they had overlooked the requirement that to be offensive or disorderly in this legislative context the defendant's behaviour needed to have a bearing on public order. Had that not been overlooked, the defended hearing would most likely have taken a different course. In view of the history of the case, and the fact that the offence was punishable only by a fine, the Court quashed the conviction and did not order a rehearing.

Morse does not address the mental elements of the offence, and we are not told whether the judges would have decided that the relevant conduct (the defendant, in protest at this country's military involvements, burnt a New Zealand flag within view of people who were participating in a war remembrance service to mark ANZAC day) was offensive or disorderly. There seems to be no doubt that it was capable in this sense, but there was insufficient evidence about whether it actually had the necessary impact on public order (Elias CJ at [57], Blanchard J at [59], Tipping J at [73], McGrath J at [119] and Anderson J at [129-130]).

This was a hollow victory for the appellant, as Morse takes rights disputes out of this part of the law and returns the discussion to the familiar territory of reasonableness.

Sorry, I can’t think of a heading for this one ...

Pfennig v R (1995) 182 CLR 461; [1995] HCA 7 is rather restrictive on the admissibility of similar fact evidence. (See my discussion of this case in the entry for 26 April 2008.) Legislation may well take a different stance, as is illustrated by Roach v R [2011] HCA 12 (4 May 2011). A statute providing that relevant evidence is admissible unless it would be unfair to admit it (ss 130 and 132B of the Evidence Act 1977 (Q)) establishes a fairness discretion. The Pfennig rule does not require a balancing of the relevant considerations of probative value and prejudicial effect that is inherent in the fairness discretion, and it cannot be imported into the exercise of that discretion. As Heydon J noted at [64]:

"... The Pfennig test is very favourable to the interests of the accused and very restrictive of the prosecution's capacity to use similar fact evidence. In principle, many may think those to be attractive consequences of the test, but, as already noted, many legislatures, including the Queensland legislature, have not thought so. A construction of s 130 which would incorporate the Pfennig test when the court considers exercising its powers preserved by s 130 would be bringing in at the second stage of an admissibility inquiry a strict rule which the legislature had been concerned to exclude at the first stage by force of s 132B... ."

A couple of interesting points were considered in another case today: SKA v R[2011] HCA 13 (4 May 2011). When an appeal is on the grounds that the verdict was unreasonable, should the appellate court look at a video recording of the complainant's evidence? Should the appellate court have regard to the trial judge's report that stated he thought the verdict was wrong? The High Court was unanimous on those points: there would need to be special reasons for the appellate court to watch the video, as doing so could give undue emphasis to only part of the evidence in the case. If a full written record of the evidence is available it should usually be sufficient for appeal purposes. And the trial judge's opinion was normally irrelevant, it being for the appellate court to make its own assessment of the evidence. Here the majority of the High Court (French CJ, Gummow and Kiefel JJ) held that the lower appellate court had not carried out its function correctly, because it had not made its own independent assessment of the evidence; instead, it had simply asked whether there was, as a question of law, evidence to support the verdicts. No reason had been shown why the appellate court should view the recording, and there was no reason to treat the trial judge's opinion of the verdicts as being of assistance. Crennan J referred at [119] to Sloan [2001] NSWCCA 421; (2001) 126 A Crim R 188 on when a report from the trial judge might be appropriate:

"An important function of a report ... is to inform the Court of Criminal Appeal of any problems which might have emerged during the trial, which either do not appear on the face of the record, or which are imperfectly or ambiguously recorded.

"Another permissible and relevant function of such a report is its use, by a trial judge, to raise any matters of irregularity or otherwise, which may give cause for significant doubt in relation to a guilty verdict, and which again are not apparent upon a bare reading of the record.

" A third permissible reason for such a report is its provision, in response to a specific request from the Court of Criminal Appeal, in relation to any matter which may be of concern to it.

"Otherwise, in times where there is in existence an adequate system for court reporting, occasion for the provision of a ... report should only arise in exceptional circumstances. Its use in order to justify, or to explain a decision for which reasons should have been provided, is not such a circumstance."

For other approaches to how an appellate court should decide whether a verdict was unreasonable, see my discussion of Owen v R [2007] NZSC 102, noted here on 11 December 2007. In New Zealand we have an odd situation: if an appeal is brought on the grounds that the verdict was unreasonable, the appellate court will not reach its own decision on guilt or innocence, whereas if the appeal is brought on a ground which attracts the operation of the proviso, the appellate court will decide the question of guilt or innocence for itself. This is because of a relatively recent change in the interpretation of the legislation in which our Supreme Court blipped over to follow the High Court of Australia's decision in Weiss.