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.

One angry juror

The integrity of the trial process was called into question in Smith v Western Australia [2014] HCA 3 (12 February 2014). After a jury had returned guilty verdicts and had been discharged, a note was found in the jury room. It was addressed to the judge and said:

“I have been physically coerced by a fellow juror to change my plea to be aligned with the majority vote. This has made my ability to perform my duty as a juror on this panel [sic].”

The Court qualified the rule that a jury’s deliberations are private and evidence of them will not be received:

“[45]  If public confidence in the system of criminal justice is to be deserved, criminal misconduct calculated to prevent free and frank deliberation by a jury must not be kept secret lest it become endemic. In such cases, the application by the courts of the exclusionary rule to preserve finality would be contrary to the first duty of the courts to preserve the integrity of the system of criminal justice which they administer.”

There is a threshold to be crossed before the issue is opened:

“[50] A court should be careful not to jump to the conclusion that the line has been crossed between robust debate and unlawful coercion; but where there is an allegation by a juror capable of belief that an incident has occurred which could be regarded as unlawful intimidation, a court of appeal is warranted in entertaining that allegation as part of its consideration of whether a miscarriage of justice has occurred.”

Here there was no challenge to the correctness of the verdicts – in the sense that the appellant accepted that they were reasonably open to the jury on the evidence, but it was argued – and accepted by the Court – that this case involved evidence, that was capable of belief, that raised reasonable ground for suspicion that one juror had exercised unlawful intimidation over another, and “on the face of things, there has been a serious breach of the presuppositions of the trial” [54].

For those of us who have to understand the workings of s 232 of the Criminal Procedure Act 2011 [NZ] it is useful to see how it would fit to these circumstances. Section 232(4) includes in the definition of a miscarriage of justice an “irregularity, or occurrence in or in relation to or affecting the trial” that has a specified consequence. The note in Smith is evidence of such an event. It is not contended that the outcome of the trial was affected - one of the ways in which an irregularity can amount to a miscarriage of justice: s 232(4)(a) – so the argument is directed at satisfaction of the alternative consequence of the irregularity: it made the trial unfair: s 232(4)(b). The common law establishes that an unfair trial is one where the law was not properly applied to facts that were determined impartially, and here it is the impartiality of the determination of the facts that is relevant.

Smith illustrates how a verdict may be correct - in the sense that it was open to the jury to convict the defendant - but it may still have been arrived at in a way tainted by impartiality. A biased decision can be correct, but nevertheless be arrived at unfairly.

And here is a tutorial question: if a majority verdict could have been returned in this case, would it matter that the one dissenting juror may have been unlawfully threatened but still had refused to join the majority? And alternatively, if a majority verdict could have been returned, would it matter that the threatened juror had joined in the verdict which ultimately was unanimous?

Stop the tendering for sentence!

Overruling an established sentencing practice, the High Court of Australia held that, at sentencing, the prosecutor should not make submissions on the appropriate range of sentences available to the court: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 (12 February 2014).

The majority (French CJ, Hayne, Kiefel and Bell JJ) held that it is wrong in principle for the prosecution to do so. An error in sentencing can be identified without the need to ascertain an appropriate range [27] – [28], and it is not the role of the prosecutor to act as a surrogate judge and offer a dispassionate assessment of such a supposed range [29]. A statement of an appropriate range depends on assumptions which are likely to be unascertainable by the sentencing judge and therefore of little use [37].

Instead, the role of the prosecutor can be discerned from the correct procedure:

“[38] If a sentencing judge is properly informed about the parties' submissions about what facts should be found, the relevant sentencing principles and comparable sentences, the judge will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer its view about available range ... .”

[39] ... the role and duty of the prosecution remains the duty ... to draw to the attention of the judge what are submitted to be the facts that should be found, the relevant principles that should be applied and what has been done in other (more or less) comparable cases. It is neither the role nor the duty of the prosecution to proffer some statement of the specific result which counsel then appearing for the prosecution (or the Director of Public Prosecutions or the Office of Public Prosecutions) considers should be reached or a statement of the bounds within which that result should fall.”

Consistency in the application of relevant principles is needed, not numerical equivalence with sentences imposed in other cases [40] – [41], citing Hili v The Queen [2010] HCA 45, discussed here on 10 December 2010 (and note the criticism of the approach in R v AM, mentioned in that discussion, a case now available online so there is the link).

The majority reasoning in Barbero includes the proposition that a statement of the appropriate bounds for a sentence is a statement of opinion, not of law; this is not convincing, and it did not persuade Gageler J who agreed in the result of these appeals but dissented in the reasoning. Undoubtedly true, however, is the majority’s assertion that plea negotiations are irrelevant to sentencing: it is for the prosecutor to decide on the charge, for the defendant to decide how to plead, and for the judge to decide on the sentence [46] – [47].

In addition to stopping the rather unpleasant bidding-for-sentence that can occur at sentencing hearings, where the judge will seem to be either favouring the prosecutor or ducking the issue by taking a middle line between the competing offers, this case implicitly raises questions about the appropriateness of guideline judgments.

Using hypotheticals

Even if your own legislature hasn’t replicated s 68 of the Criminal Justice and Public Order Act 1994 [UK], an offence of aggravated trespass, it is worth reading the judgment in Richardson v DPP [2014] UKSC 8 (5 February 2014).

That is so because the reasoning illustrates how hypotheticals are used in judicial interpretation of criminal legislation. Correct identification of the focus of the provision [12], reflecting the legislative intent [13], highlights the central concept (here, “activity” and then whether it is “lawful activity”), and its limits are analysed by reference to hypothethicals (here, to exclude incidental or collateral or remote matters).

So, in this particular legislative and factual context, the activity was the selling of soap, and this was a lawful activity for the relevant shop, which would not have been made an unlawful activity if - all these are hypotheticals - an employee had been paid below the minimum wage [12], or if taxes had deliberately not been paid [19], or if the shop had been involved in money laundering in the way suggested by the appellant [18], or even if the selling activity had taken advantage of a war crime committed by another person (taking advantage of a crime is not the same as encouraging or assisting its commission [17]). Wrong labelling of goods sold could make the selling unlawful, but here there was no offence of selling goods wrongly labelled, and anyhow regulations required that there be proof that a purchaser would not have bought the goods if he had known of the error. These are all context-dependent and not general propositions.

Erroneous concessions

It would be manifestly unfair for a defendant to be held to a concession that was made because of a mistake of law: R v Mackle (Northern Ireland) [2014] UKSC 5 (29 January 2014) at [53].

The basis for a concession – is new evidence needed on appeal?

Where a defendant has conceded an element of liability (here that he “benefited” by avoiding a liability to pay duty and VAT on imported goods), but in law that concession was wrongly made (because he was not legally liable to make those payments), there is no need on appeal for evidence that the defendant was wrongly advised if the only evidence relied on by the prosecutor is insufficient to prove the obtaining of that, or any other, benefit [45].

Determining jurisdiction

Where a concession is made it may, in a particular legislative context, nevertheless be for the court to be satisfied that the point is established [51]. A concession about facts can provide evidence on which the court determines that it has jurisdiction to make an order, but a concession about a legal requirement is not determinative of jurisdiction.

The context here is the Proceeds of Crime Act 2002 [UK] (the POCA):

“[50] It is to be remembered that under POCA the court must itself decide whether the convicted person has benefited from his particular criminal conduct. The power to make a confiscation order arises only where the court has made that determination. A defendant's consent cannot confer jurisdiction to make a confiscation order. This is particularly so where the facts on which such a consent is based cannot as a matter of law support the conclusion that the defendant has benefited. On the other hand, if it is clear from the terms on which a defendant consents to a confiscation order, that he has accepted facts which would justify the making of an order, a judge, provided he is satisfied that there has been an unambiguous acceptance of those facts from which the defendant should not be permitted to resile, will be entitled to rely on the consent. This is so not because the defendant has consented to the order. It is because his acceptance of facts itself constitutes evidence on which the judge is entitled to rely. Provided the acceptance of the facts is unequivocal, and particularly where it is given after legal advice which proves to be sound, the judge need not mount a further investigation. It should be emphasised, however, that this is because the judge can in those circumstances himself be satisfied on the evidence that the basis for making a confiscation order has been made out.”

Liability and benefit

In proceedings for the confiscation of the benefits of crime, it must be shown what benefit the defendant obtained, that is, how much he gained from the offending. The requirements for liability are not the same as the requirements for establishing a benefit from criminal activity [66], [68]. Examples are the handling of prohibited goods, or participation in a conspiracy, which do not alone establish that a person has benefited from criminal activity [68].

This case applies R v May [2008] UKHL 28, R v Green [2008] UKHL 30, and Crown Prosecution Service v Jennings [2008] UKHL 29 (all 14 May 2008), discussed here on 16 May 2008.

Concessions and confessions

You could – just for the sake of remaining alert - compare the consequences of a mistake of law resulting in a concession, with the consequences of a mistake of law resulting in a confession, discussed here on 7 December 2013. Whereas the error-induced concession made by each appellant in Mackle was of no legal effect, the error-induced confession in the (currently) suppressed judgment of the NZCA did have evidential effect. The difference reflects the law/fact distinction. Also, there are two types of fairness at play: the fairness of the trial (a first requirement being that the law is accurately applied) and public policy fairness (the balancing of interests carried out in determining admissibility).

And, to be even more alert, you might wonder - following the train of thought in the first sentence of this comment - whether the law/fact distinction is sufficiently robust to allow one to say that it would not be manifestly unfair to hold the defendant to a confession that was only made because of a mistake of law.

Stop the discussion!

The dissent in R v MacDonald, 2014 SCC 3 (17 January 2014) is so cogently reasoned that one wonders why the majority didn’t refer to it or try to rebut it.

Although I call the judgment of Rothstein, Moldaver and Wagner JJ a dissent, it is really a concurrence in the result and a dissent on an important point of law.

This is one of the annoying things that sometimes crop up in multi-judgment cases: they can look half-baked, as if someone said, “Time’s up, stop writing!” before the majority judges had a chance to say why they disagreed with the minority.

I have always thought that R v Mann, 2004 SCC 52, [2004] 3 SCR 59 required reasonable grounds to suspect the existence of facts that made necessary an unwarranted search of a person who had not been arrested. See the heading to my comment on that case on 26 August 2004.

The minority in MacDonald thought that too, as had other Canadian courts in decisions mentioned in their judgment.

Importantly, the minority focus [68]-[69] on the phrase in Mann “...reasonable grounds to believe that his or her safety or that of others is at risk ...” and at [70] conclude:

“The language of Mann thus appears to stack a probability on top of a possibility — a chance upon a chance.  In other words, Mann says a safety search is justified if it is probable that something might happen, not that it is probable that something will happen.  As this Court only recently explained, the former is the language of “reasonable suspicion” (R. v. MacKenzie, 2013 SCC 50 (CanLII), 2013 SCC 50, at para. 74).  The latter is the language of “reasonable and probable grounds”.”

I mentioned MacKenzie here on 3 October 2013.

Further, the facts of MacDonald plainly show that the officer here did entertain a suspicion, not a belief [85], and that this was objectively a reasonable suspicion but it would not have amounted to a reasonable belief [83].

Judicial decisions are not always the best way to develop the law, as the minority note [90]:

“In the end, this case illustrates the danger of leaving police powers to be developed in a piecemeal fashion by the courts.  Today, our colleagues impose a standard requiring that an officer have reasonable grounds to believe an individual is armed and dangerous before a “safety search” is authorized, effectively overturning the search power recognized in Mann and a decade of subsequent jurisprudence in the process.”

When I noted Mann, nearly 10 years ago, our legislation required reasonable grounds to believe in the context of a warrantless search for an offensive weapon, but now this has changed to reasonable grounds to suspect: s 27 Search and Surveillance Act 2012. The Act, although in some respects controversial, is at least rational.

When your thought becomes my experience

Another aspect of B(SC12/2013) v R [2013] NZSC 151 (19 December 2013) is its varieties of judicial interpretation of ss 40(3)(b) and 44 of the Evidence Act 2006. Of interest to us is the extent to which this aspect of the case is authority for anything.

Here the challenged evidence (held to be inadmissible) would have been that the complainant on an earlier occasion had invited a man to her house during the day to deal with a dead mouse, and when he was there she was wearing a nightie and a dressing gown. The man dealt with the mouse and left, but he felt that the complainant had been presenting an opportunity for a sexual encounter although she had done nothing overt in that regard.

What was this evidence intended to prove? If it just proved that the complainant invited people to her house to deal with mice, in this case it was hardly relevant because that was not a fact in issue: it was inadmissible, or at least not a miscarriage of justice for it to have been ruled inadmissible. William Young J favoured this approach to the issue of admissibility.

If the evidence was sought to be adduced to prove that the complainant had engineered a situation to have a sexual encounter with the defendant just like she had before in relation to the proposed witness, it would be evidence of her sexual experience with a person other than the defendant, so its admissibility would be governed by s 44(1) and (3). This was the approach favoured in the joint judgment of McGrath, Glazebrook and Arnold JJ.

William Young J didn't like that interpretation of the evidence or s 44 because the witness would not be testifying to an actual sexual experience, only to his impression of the complainant's motive for his visit. William Young J would not "read up" the word "experience" in s 44(1) to include things that didn't happen. It would have been different if the complainant had overtly suggested sexual activity on that occasion, but merely being dressed in a nightie and dressing gown wasn't enough.

Another interpretation of the evidence is that taken by the Chief Justice: the evidence was that the complainant had a propensity to create opportunities for sexual encounters at her home, which amounted to saying she had a reputation for doing that. This evidence of reputation had to be excluded because of s 44(2). It must be said that this is the least convincing interpretation of the proposed evidence.

At [117] William Young J cogently criticises Elias CJ's approach.

There was some obiter discussion of whether evidence of diary entries describing the complainant's sexual fantasies would be admissible. There was no such evidence in this case. The joint judgment would put this sort of evidence into the category of "experience" within the meaning of that term in s 44(1). William Young J would not, refusing to read up "experience" to include fantasies, and refusing to include, within the expression "with any person other than the defendant", the complainant herself.

When judges disagree over what are merely obiter dicta, what binds lower courts? When a case that directly raises the issue has to be decided, subsequent judicial reflection may favour the approach taken here by William Young J. But in the meantime greater weight should be given to the obiter dicta of the joint judgment here, simply because it is a majority opinion.

So, what is the ratio decidendi of the admissibility aspect of this case? All judges agreed that there was no miscarriage of justice arising from the evidence having been ruled inadmissible. Either it was irrelevant, or it was not of sufficient relevance to overcome the heightened relevance requirement of s 44(3), or it was inadmissible because it was reputation evidence. The majority applied the heightened relevance requirement, so the case is, from that perspective, a simple illustration of the application of s 44(1) and (3).

Legal propositions distilled from obiter dicta are not ratio decidendi, and neither are legal propositions not agreed to by a majority. There is therefore no wide ratio in this case, and it is only narrow authority on the admissibility of evidence of the same kind as that sought to be adduced here.

Perhaps you share my suspicion that the whole issue was argued under the wrong sections. The intended evidence was about the witness's opinion of what the complainant was thinking. The governing provision is s 24:

"General admissibility of opinions

A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived."

Here there was nothing that the witness "saw, heard, or otherwise perceived" other than the way the complainant was dressed. Her clothing did not require an explanation in the absence of any other overt conduct. There was no other conduct that the witness could point to that could require an explanation. Therefore the proposed opinion evidence was inadmissible.

Perverse acquittals and the limits of the law

Whether you are a stranded speluncean explorer or a shipwrecked sailor adrift and starving, the law applies to you. Even where you enter into a contract agreeing that the ordinary law will not apply, you can only do that if some law allows you to, and even then the law requires you to stick to what you have argeed.

Can the law embrace illegality?

Are there times when a sensible person, when told what the law requires, can be permitted to say, "Oh, don't be silly, the law's an ass"?

Can jurors be permitted to return verdicts of not guilty that are contrary to law? These are variously called perverse verdicts, conscience verdicts, merciful verdicts, or instances of jury lenity reflecting the jury's innate sense of justice. See the discussion here on 15 November 2013.

In very limited circumstances the law will recognise that jurors may return conscience verdicts: B(SC12/2013) v R [2013] NZSC 151 (19 December 2013). Here, on an appeal against conviction, the relevant issue was whether two verdicts were inconsistent. The focus in such appeals is on whether the conviction is lawful, not on the acquittal [105], but the acquittal is relevant to the extent that it reveals an irreconcilable error in the conviction. Opinions may differ, as they did here, on whether the acquittal could be explained logically without impugning the reasoning behind the conviction. But without a logical explanation for the inconsistency it might be possible, held the majority, to account for the acquittal as an instance of jury lenity, without impugning the conviction.

Elias CJ did not consider that this case was one of necessary inconsistency in verdicts [30]. There may have been a reasonable possibility, she held, that the prosecutor had not excluded an innocent belief in relation to that charge, while proving all the elements of the other. But she went further than that, and refused to accept that a jury may return a "lenient" verdict [28]:

" ... in the core function of determining guilt or innocence I do not think there is scope for other than conscientious discharge of the responsibility to decide on the evidence and according to law."

The majority disagreed. McGrath, Glazebrook and Arnold JJ [105]:

" ... If the court finds it difficult to understand on what basis the jury accepted a complainant's evidence at one point and not another, it is entitled to consider whether the jury may have departed from its instructions in giving a not guilty verdict, out of an innate sense of justice."

They held that while the difference in verdicts could have a logical explanation, this was also one of those rare cases where the jury might have thought that the conviction sufficiently captured the defendant's culpability for what was in substance a single interaction with the complainant [106].

William Young J said he agreed with the joint judgment [110], [131].

The reasoning which led the majority to accept that jury leniency can have legal effect occurs at [99], which is worth quoting in full:

"Potentially, however, jury leniency undermines the rule of law, creates uncertainty and operates unequally as between comparable defendants. [footnote: See, for example, R v Morgentaler [1988] 1 SCR 30 at [77] per Dickson CJC (with whom Lamer J joined); and Andrew D Leipold "Rethinking Jury Nullification" (1996) 82 Va L Rev 253.] Importantly for present purposes, jury leniency is in direct conflict with the premises on which jury trials are conducted, as reflected in trial judges' instructions to juries. But while jury leniency may not be encouraged – indeed, it is actively discouraged in jury instructions – that does not necessarily mean that its existence must always be ignored. There is widespread acknowledgement that juries do sometimes apply their innate sense of justice by convicting a defendant on one count and acquitting on another, even though the evidence would support convictions on both, and a general (albeit not universal) acceptance that the fact that this sometimes happens is, on balance, a beneficial feature of the jury system (the jury acting as the conscience of the community). Where an appellate court considers that a jury's "not guilty" verdict is explicable on this basis, it seems perverse that the court should be required to quash the conviction because it is not logically consistent with the acquittal. While logic in the law is important, it is not everything."

As I have previously said, a perverse verdict is not available at the request of the defendant, and this case demonstrates that it is, in contrast and when rarely available at all, a weapon for the prosecutor on appeal. While it seems comforting to think that a jury might be lenient when the letter of the law conflicts with conscience, there is attraction in the Chief Justice's position which would disallow illegality as a basis for upholding a conviction.

But there's more in this case: propensity, reputation, prior sexual experience! ... Later ...

[Update: Lord Judge referred to perverse verdicts as constitutional safeguards against barbaric laws in a discussion with Chief Justice Roberts on the 800^th anniversary of the sealing of the first issue of Magna Carta, available here on YouTube: view from the time setting 37:58.]

Control: peaceable possession of land

Pronouns and political correctness: "his", or "his or her"?

Section 56(1) of the Crimes Act 1961 [NZ] has been politically corrected (or, more properly, gender neutralised, or - even more properly - gender balanced). The original version printed in the leading criminal text robustly reads:

"Every one in peaceable possession of any land or building, and every one lawfully assisting him or acting by his authority, is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him therefrom, if he does not strike or do bodily harm to that person."

But online you will find this (to become the "official" version from 6 January 2014):

"Every one in peaceable possession of any land or building, and every one lawfully assisting him or her or acting by his or her authority, is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him or her therefrom, if he or she does not strike or do bodily harm to that person."

I can tolerate a bit of this sort of thing, and my objections spring from experience: if you try to think of a way of saying something by avoiding "he or she", and sexist language generally, you may well come up with better prose.

But s 56(1) is a hard nut to crack from that point of view, so the two versions confront us with the aesthetic question of which is the better prose, and if the former is better, the moral question whether gender balance is more important than cadence. However one would also have to take into account the need to avoid redundancy and tautology, arising from the operation of s 31 of the Interpretation Act 1999.

Strictly speaking, wrestling with this sort of problem is a matter for the Chief Parliamentary Counsel in the preparation of a revision Bill pursuant to s 31(2)(e) of the Legislation Act 2012. It can also be done when there is a reprint under s 25(1)(a) of that Act, to conform to "current drafting practice".

This gender balance business did not concern the Supreme Court this week in Taueki v R [2013] NZSC 146 (17 December 2013), where at [26] and [42] the original version of s 56(1) is quoted. The central point decided here is that possession requires a power of control over the land or building [57]-[58].

Additional points are: "peaceable" possession means "possession that has been achieved other than in the context of an immediate or ongoing dispute. In brief, it is possession obtained and maintained before the employment of the physical force the use of which the person seeks to justify" [64]; and mistake is irrelevant: "[t]here is no scope for applying s 56 on the basis of beliefs (reasonable or otherwise) on the part of the defendant as to whether he or she enjoyed peaceable possession of the land, nor as to whether the other party was a trespasser."

Control in context

The Court in Taueki did not look around and borrow inspiration from the law relating to drug offences. Control is a central element of offences of, or including, possession of a drug, and of permitting the use of premises for the commission of a drug offence. Control here has been interpreted judicially to mean having the power to invite or arrange for the presence of a drug, having the power to say what will be done with a drug, or having the power to invite or exclude others from premises or to prevent the commission of a drug offence on the premises.

In Taueki the appellant did not have powers of those kinds: [22]-[25]. There is thus a consistency in the meaning of control in these diverse contexts. That is hardly surprising, as the word will be given its ordinary and natural meaning unless the legislation requires otherwise.

The Court adopted Lord Browne-Wilkinson's description of possession of land in this context as that of a person who is "dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so" JA Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2003] 1 AC 419 at [41], quoting from the judgment of Slade J in Powell v McFarlane (1977) 38 P & CR 452 (ChD) at 470–47; Taueki at [57].

This circumstance-dependent issue – is the defendant dealing with the land in question as an occupying owner might have been expected to deal with it? – links control to the powers of an owner, but as the Court in Taueki noted [56]: "while possession is often an incident of ownership (or other legal right), in this context, ownership of the property is not necessarily required, nor even is a claim of right, before a person will have a defence".

So there's room here for assistance from the usage of "control" in the context of drug offences. If that is correct, the material questions on the issue of possession here will be whether in the circumstances the defendant had the power to invite or exclude others from the land, or the power to say whether they could do a relevant thing while on the property.

When is a judicial development too late?

A simply-defined statutory offence may require detailed judicial development. Pending such development and final determination by the highest court the law may be unascertained and inaccessible.

Lower courts may develop the definition of an offence, and intermediate appellate courts may confirm that development, so that the law appears to be settled, and settled for some time, but suddenly the superior appellate court says no, everyone was wrong, here is what the ingredients of the offence really are.

In R v McRae, 2013 SCC 68 (6 December 2013) four judges – the trial judge and three appeal judges – had their definition of an offence overturned by seven judges of the Supreme Court.
The prosecutor had been able to appeal against the acquittal on a question of law: s 676(1)(a) of the Criminal Code. The Supreme Court ordered a retrial.

The defendant had been tried on five counts of uttering threats, an offence pursuant to s 264.1(1)(a) of the Criminal Code. This offence had been considered earlier this year but the Supreme Court then did not need to address the points raised in McRae: see R. v. O'Brien, 2013 SCC 2 (CanLII), 2013 SCC 2, [2013] 1 S.C.R. 7, mentioned briefly here on 31 January 2013.

The details of the definition of the offence as they were judicially elaborated need not detain us. The question I raise is, should the Supreme Court have ordered a retrial? There is no doubt that the power to make such an order existed. There could have been little objection (subject to the inaccessibility of unascertained law point mentioned above) to the first appeal court ordering a retrial. But given that the first appeal court was also wrong about the law, wasn't the law much more inaccessible and unascertainable than is acceptable? Shouldn't the defendant have been allowed his acquittals?

Compare the discussions of accessibility and ascertainability here on 13 March 2006, here on 9 May 2013, and here on 16 June 2013.

Common law fairness and the Evidence Act 2006[NZ]

To what extent does the Evidence Act 2006 [NZ] exclude the common law discretion to rule inadmissible evidence that was obtained, not through improper acts of officials, but through unfairness arising independently of officials?

People who can access the New Zealand Universities Law Review can find an interesting discussion of this by Don Mathieson QC, "Fair Criminal Trial and the Exclusion of 'Unfair Evidence'" (2013) 25 NZULR 739 (October 2013). Dr Mathieson analyses a Court of Appeal decision which is currently subject to a suppression order, but which the Court has allowed to be discussed in professional publications.

So I am rather constrained in what I can say about the case here, and nor should I quote much of what Dr Mathieson says. In Adams on Criminal Law – Evidence at EA30.09(9) the central point is summarised in this way:

"The Court held that when a defendant argues that evidence such as a statement has been improperly obtained by the police, admissibility of the evidence must be determined in accordance with s 30. However, when the defendant argues that, although not improperly obtained, it would nonetheless be unfair to admit evidence against the defendant, admissibility will be governed by the exercise of the Court's common law discretion, which continues after the Evidence Act 2006."

Dr Mathieson argues, in effect, that the Court's holding, summarised in the last sentence of that passage, is wrong. There is no such common law discretion, and even if there was it would now have been replaced by the provisions of the Evidence Act, in particular ss 6, 7 and 8, pursuant to either s 11(2) or s 12.

Section 12 is central to the reasoning, so I set it out here:

If there is no provision in this Act or any other enactment regulating the admission of any particular evidence or the relevant provisions deal with that question only in part, decisions about the admission of that evidence—

(a) must be made having regard to the purpose and the principles set out in sections 6, 7, and 8; and

(b) to the extent that the common law is consistent with the promotion of that purpose and those principles and is relevant to the decisions to be taken, must be made having regard to the common law.

Dr Mathieson's argument is that this replaces whatever common law there might be on a relevant topic with law that interprets the Act in a way that, to the extent permitted, has regard to the common law. The new law is not common law – in the sense of law invented by judges in an area not covered by legislation – but rather is, collectively, decisions under s 12.

Then, applying s 7 and s 8 to the evidence that was obtained by what I might call the 'non-official unfairness' in the case at hand: yes, the evidence is relevant, and no, it is not excluded pursuant to the s 8 discretion. There is no resort to any posited common law discretion.

The Court of Appeal's reasoning was (here I risk quoting [31] of the suppressed judgment):

"It would be inconsistent with the common law and the purpose of the Evidence Act which is to promote fairness to parties, to construe s 30 as excluding the common law discretion. The continued existence of the common law discretion is consistent with the purpose of promoting fairness in s 6(c) to parties, and the Court must have regard to that purpose under s 11(2). The exclusion of evidence on unfairness grounds can be seen as dealt with only "in part" (in terms of s 12)by s 30, so that decisions on the admission of evidence can still involve a consideration of what is fair to the parties, that is, irrespective of the provisions of s 30. We conclude that the common law discretion survives the Evidence Act, although s 30 governs those cases to which the section applies."


You can see that this is quite a different interpretation of the effect of s 12 than that advocated by Dr Mathieson. The "decisions about the admission of that evidence" remain, in the Court's view, common law decisions.

I wonder whether this matters, particularly where the common law on the point had been undeveloped. You could say it matters if the Act is more restrictive than the common law. The Court, developing the common law, applied by analogy such of the considerations specified in s 30 as were relevant, and concluded that the evidence was admissible. Dr Mathieson on the other hand would confine the considerations to those applicable under s 8.

A difficulty is that, pursuant to s 12, it is the "purpose and principles set out" in s 8 to which the court must "[have] regard". Section 12 does not simply apply s 8 to the issue. Identifying the relevant purposes and principles of s 8 is not a simple matter, as none are "set out". A rule is not the same thing as a principle. There are abstract concepts named in the section: "probative value", "unfairly prejudicial effect", "the proceeding", "take into account", "the right", "offer an effective defence". But the only principle apparent in s 8 is the principle that evidence must not be ruled admissible if it would be unfair to do so. Arguably this isn't even a principle, it is a rule ("must not"). But let's pretend it is a principle. Is this principle more restrictive than the common law?

But don't let my ramblings deter you from reading Dr Mathieson's splendid article. It is unfortunate that it is not more widely available.

Culpable recklessness and innocent negligence: inferences from conduct

How does a court decide what a defendant foresaw about the consequences of his acts?

The difference between foreseeing and not foreseeing consequences can be important. It is the distinction between intention or recklessness on the one hand, and negligence or blameless inadvertence on the other hand.

Some offences are offences of negligence (careless driving, carelessly discharging a firearm, and so on), and criminalisation of negligence is done by express words or clear legislative intent.

Recklessness, in contrast, is usually sufficient for liability, but again this depends on the language creating an offence.

Negligence and recklessness have their own meanings, resulting from judicial interpretation of legislation, but these too are subject to any specific enacted meanings that may apply.

In Li v Chief of Army [2013] HCA 49 (27 November 2013) recklessness as to the occurrence of circumstances was required by legislation which applied certain provisions of the Criminal Code (Cth): [19]-[22]. These circumstances were the interruption of order that was caused by the defendant's intentional acts, on a charge of creating a disturbance:

"[28] The service offence created by s 33(b) of the DFDA is therefore best construed as relevantly having two physical elements, to each of which the Criminal Code attaches a distinct fault element. The first physical element is conduct, for which the fault element is intention: it must be proved that the defence member or defence civilian charged did the act, and meant to do the act. The second physical element is the result of that conduct, for which the fault element is recklessness: it must be proved that the act resulted in a disturbance (being a non-trivial interruption of order), and that the defence member or defence civilian charged either believed that the act would result in a disturbance or was aware of a substantial risk that the act would result in a disturbance and, having regard to the circumstances known to him or her, it was unjustifiable to take that risk." [emphasis added]

So, back to the first question: how would a fact-finder decide whether the defendant was aware of the substantial risk of a disturbance (and so was reckless), as opposed to finding that he failed to be aware of a risk that a reasonable person would have been aware of (and so was merely negligent)?

It is easy to answer this when the defendant has confessed to having been aware of the risk, but what if there is no such admission?

The temptation will be to decide that if a reasonable person would have been aware of the risk, then the defendant must have been aware of it too. But this is the same as holding the defendant liable on negligence grounds, which here are insufficient.

Plainly, the fact-finder– again, in the absence of a confession – will need to identify something in the defendant's words and actions at the relevant time to support an inference that he was aware of the risk of a disturbance. In many cases this will not be difficult, but the facts of Li, at least as related in the High Court's judgment, do suggest that drawing the necessary inference here might be more difficult. The Court ordered that the conviction be quashed.

Looking into oral argument about causation

Oral argument on appeals is quite an interesting thing, as you can hear and read in relation to Burrage v United States (Docket No 12-7515, 12 November 2013).

At issue here is what distribution of heroin "resulting in" death means. Here is discussion of the case, and here is the relevant legislation; you need to read down to the penalty part to get the phrase "if death or serious bodily injury results from the use of such substance."

Was it necessary for liability that the heroin was the only cause of death? Or that it was a contributing cause of death? Or that it was not merely a contributing, but a significant cause of death? Another question was whether the death had to be a foreseeable consequence of the distribution of the drug. This turns on the extent to which the common law relating to the causation aspect of the attribution of responsibility applies to the interpretation of the words "resulting in" in this statutory context.

The appellant (called the "petitioner" in American terminology) argued that a "but for" causal connection is required: the prosecutor must prove that the death would not have occurred but for the distribution of the drug.

The victim had consumed other drugs too, and these had not been supplied by the appellant. Expert evidence was that it could not be said that the victim would have lived if the heroin had not been used. The heroin contributed to the death but could not be said to be its sole cause. To what extent, if any, is the defendant to be held responsible for the acts of strangers, including acts of the victim?

Standing back and looking at the problem in the conventional terms of common law causation, there is no great difficulty. As to the actus reus, liability requires proof that the defendant's acts were an operative contributing cause of death. This can sometimes be put as a "substantial" contributing cause. The evidence in the case must be assessed against this requirement. Liability will be negatived by an intervening act that replaces the defendant's acts as an operating cause of death.

For an intervening act in this case the defence would have to point to evidence that raised a reasonable possibility that death would have occurred without the defendant's act of supplying heroin. See, for example, the discussion of Hughes v R [2013] UKSC 56, here on 9 August 2013, Burns v The Queen [2012] HCA 35, here on 15 September 2012, Maybin v R, 2012 SCC 24, here on 22 May 2012, and R v Kennedy [2007] UKHL 38, here on 19 October 2007. In Kennedy the victim's voluntary choice to use the drug supplied by the defendant was a novus actus interveniens. These decisions were not cited in the brief filed for the petitioner (which was confined to citation of American cases; not that there is anything necessarily wrong with that).

As to mens rea, liability for the victim's death usually requires gross negligence at least.
These conventional considerations are merely a background for interpreting the relevant legislation. The legislature can be taken to be aware of the existing law, and to intend to change it only by clear provision: Hughes, above. The policy supporting the creation of the statutory offence must be identified if the plain words of the enactment are ambiguous.

The opening remarks of counsel for the appellant in Burrage show a departure from the ordinary legal meaning of cause, claiming that "but for" cause is the usual requirement. Would it have been better to refer to the evidence first, arguing that it supported intervening act? Justice Ginsburg began the questions from the bench by referring to the hypothetical that invites consideration of intervening acts. Justice Scalia makes this clear with his first comments, emphasising that the expert evidence was that the victim may have died without using the heroin.

The argument proceeds with discussion of hypotheticals and with counsel insisting on a "but for" interpretation of causation. Hypotheticals are used to raise policy considerations. What policy supported the appellant's argument and made it more acceptable than the policy that supported the opposing argument? The three-drops-of-poison hypothetical raises the question of the appropriate boundaries – in this legislative context - of the danger to the victim that is attributable to the defendant's conduct. This was alluded to by Scalia J in his reference to "the scope of the risk".

The trouble with a "but for" requirement is that it easily reduces to a situation where no-one is guilty, as where poisoners independently administer a sub-lethal dose which cumulatively kills the victim. And the trouble with a substantial contributing cause requirement is that others may have already given a lethal dose when the defendant administers what is also a lethal dose; as the victim would die anyway, has the defendant caused the death, assuming he has not accelerated it? Is it acceptable that in this latter example the defendant might only be liable for the attempt to kill?

Sometimes judges play with numbers when the law prefers words, as happened with the questioning of counsel for the United States (the "respondent") by Kagan J: how much more likely than other causes does the defendant's acts have to make the victim's death – 50%, 30%? Scalia J had the same difficulty with what is a "substantial" contributing factor to the death: "10 percent, 20 percent ... 5 percent, what?" That is like demanding that the expression "beyond reasonable doubt" be put into numbers, something that the law does not currently do, as Kagan J pointed out.

Anyway, this transcript and recording is an interesting illustration of how argument on appeal can develop. Both counsel demonstrated significant expertise in handling questions from the bench.

Guidance for oral arguments is given in "Guide for counsel in cases to be argued before the Supreme Court of the United States" (Clerk of the Court, Supreme Court of the United States, October term 2013). Much of the advice on oral argument in that document will be of assistance to counsel in other courts.