Do you really want to be a judge?

Reading this article on the relative lack of diversity among New Zealand judges has made me wonder why anyone would want to be a judge. I write from the experience of having been a barrister in criminal law.

 

Do you really want to be a judge?

 

Consider the working conditions:

 

            Many hours spent sitting down ...

 

            ... in a poorly air-conditioned room ...

 

            ... probably with no opening windows ...

 

            ... full of people none of whom want to be there ...

 

            ... not everyone being free of contagious illness ...

 

            ... hearing tales of woe and nastiness ...

 

            ... listening to lawyers ...

 

            ... making predictable submissions ...

 

            ... poised to catch you out on any error and appeal your decision ...

 

            ... having very limited freedom of choice about what to decide ...

 

            ... few sentencing options ...

 

            ... having your working hours carefully monitored ...

 

            ... so you are forced to work as hard as is physically possible ...

 

            ... limited vacation time ...

 

            ... even if you think the pay is good, when can you spend it? ...

 

            ... letting the best years of your life pass by ...

 

            ... making an enormous sacrifice of personal freedom ...

 

            ... who is really the prisoner?

 

And, if you still want to be a judge, what are the obstacles?

 

            ... why should you have a better chance with a very good degree, when an ordinary one should              be quite enough?

 

            ... why should you need the “right” cultural or ethnic background, when people are just people?

 

            ... why be at the “top” of the profession, when ordinary lawyers do a lot of good for the   community just by helping people with their legal problems?

 

            ... but an inability to work hard should be an obstacle ...

 

            ... and a lack of judgement should also be an obstacle ...

 

            ... and a lack of wisdom should also be an obstacle ...

 

            ... and a lack of integrity should also be an obstacle.

 

 

Probative value and reliability - the evidence of prison informants

The idea of “probative value” in s 8 of the Evidence Act 2006 came under scrutiny, and was the subject of some disagreement, in Roigard v R [2020] NZSC 94 (14 September 2020).

 

My impression is that this case misses the critical thing about s 8 in this context: it should be all about whether admission of the challenged evidence would have an unfairly prejudicial effect on the proceeding.

 

The evidence will have probative value, otherwise it would be inadmissible under s 7.

 

Whether the probative value is “outweighed” by the risk of unfair prejudice is not a matter of balancing (a word not used in s 8 and one which, as I have argued, introduces an inappropriate metaphor). Outweighed here should mean that, in context, the risk of unfairness posed by admission of the evidence is unacceptable in the sense that it would not be overcome by appropriate cross-examination or by directions the judge could give the jury.

 

In Roigard only brief attention is given to unfair prejudice, identifying the danger as the risk that the jury would “overweight” the prosecution evidence: per Winkelmann CJ and Brown J at [156]. The Judges all agreed that in cases like this, where prisoners give evidence about confessions allegedly made to them by the defendant, it is necessary to formulate guidance for prosecutors and to keep a register of such witnesses’ convictions and rewards for giving such evidence.

 

The judicial disagreement was over the criteria for assessing probative value, with the result that the dissenting Judges would have excluded the evidence of one of the two challenged witnesses. Regarding the risk of unfairness as the same for each witness, the dissenting Judges considered that one witness was so lacking in credibility that the risk of unfairness outweighed the probative value of his evidence.

 

The disagreement in this case is all about probative value. The majority Judges took a narrower view of what reliability factors are relevant to assessing probative value under s 8 than did the minority.

 

But as I have said, it doesn’t matter how probative evidence is, if its admission would cause unfairness.

What is probative value, and does it include reliability?

 

A fact-finder in a trial must decide, when the time comes to reach a verdict, whether to accept a witness’s evidence. Is the witness reliable? Is the witness truthful, and, if truthful, nevertheless possibly mistaken? These considerations are matters of credibility.

 

If the fact-finder decides to accept what the witness says, the next question is how much probative value that testimony has. Probative value is a quality that attaches to evidence that is accepted. In a criminal trial, the probative value of evidence for the prosecution is a comparison of the extent to which the evidence is consistent with guilt or with innocence.

 

There can be occasions where a witness gives evidence about the reliability of testimony. For example, a witness may say that the error rate in DNA testing is x%. The fact-finder will take this into account in deciding whether to accept the evidence of a match. This is different from deciding the probative value of the evidence of a match. The probability of a match may be very high, so the witness’s evidence that there was a match will be credible. But the significance of the match in the circumstances of the case may be much lower, as for example where there are innocent explanations for the presence of the defendant’s DNA at the crime scene. Here, the probative value of the evidence of a match would be lower than where there is no apparent innocent explanation.

The risk of error can be relevant to probative value. The error may exaggerate the consistency of the evidence with guilt and minimise its consistency with innocence. Reliability has two roles: first in relation to the credibility of testimony, and secondly in relation to the probative value of testimony that has passes the credibility threshold.

 

There are no standards of proof at play here. It is sufficient that the fact-finder is satisfied that testimony is credible and that it has a probative value which is for the fact-finder to assess. The verdict depends on whether the fact-finder decides that the combined probative values of the accepted evidence reaches the criminal standard of proof.

 

Applying these thoughts to Roigard: the testimony in question was that the defendant confessed guilt independently to each of the two witnesses while in custody awaiting trial. The first question for a fact-finder (juror) is whether the testimony is credible: did the defendant make the statements reported by each witness? Reliability considerations relevant here were ones of self-interest: what did each witness have to gain from testifying, and was each witness a truthful person?

 

It might have been quite unlikely that a fact-finder would accept any of the contested evidence here. But that would be for the fact-finder unless the evidence was so incredible that it would be irrational to believe it, in which event a judge could rule it inadmissible because it had no probative value and so was irrelevant in terms of s 7.

 

If a fact-finder did accept the evidence here as being credible, then the question of its probative value would have to be considered. A voluntary confession would have a high probative value. It would necessarily be reliable (unless made to protect another person, which was not an issue here), and it would be highly consistent with guilt and inconsistent with innocence. Note that here – where credibility is accepted - it is the reliability of the confession, not the reliability of the witness, that is relevant.

 

But where the fact-finder thinks the evidence was quite likely to be credible, but also possibly not credible, the acceptance of the evidence may be qualified or hesitant. The reduced reliability of the evidence could be reflected by a reduction in the fact-finder’s assessment of the probative value of the evidence.

 

None of these considerations directly address unfair prejudice to the defence. Unfair prejudice would exist to the extent that the defendant was unable to test the credibility of the witnesses by exploring the circumstances that gave rise to their self-interestedness and by examination of relevant previous convictions. Judicial directions, based where appropriate on psychological studies, could assist in reducing the risk that the fact-finder would too readily accept the credibility of the witnesses. The courts have not yet gone so far as to require that the fact-finder be satisfied beyond reasonable doubt that a confession was made. Unfair prejudice would also exist to the extent that the defendant was unable to properly challenge the probative value of the evidence, although here this is less important because a voluntary confession would necessarily have a high probative value. Even where the fact-finder discounts the probative value of a confession because of some doubts as to whether it was made, it would still have a probative value sufficient to affect the assessment of the overall strength of the prosecution case.

Trial and error: lessons for participants

A simple little appeal judgment can contain a lot of lessons. So it is with W (CA641/2019) v R [2020] NZCA 286.

 

The lessons? Here are the points I noted:

 

1. In a trial, don’t forget the elements of the alleged offence.

 

Here, the alleged offence was perjury, and the mental elements were both knowing the assertion (here, in a document) was false and intending by it to mislead the court. The trial judge thought the only issue was whether the defendant intended to mislead, whereas the real issue was whether the defendant knew the assertion was false. Closely related to this is the actus reus: swearing that the document was a true copy in the sense of it being unaltered from the original.

 

2. Be alert for ambiguity, and don’t assume a defendant is using words in their legal sense.

 

Here the ambiguous expression was “a true copy”. Lawyers understand this to be a matter of form, whereas it can also refer to substance. Here, a document was altered by the defendant, who claimed to have been correcting it, and then copied and presented to the court in other proceedings. In lawyers terms it was not a true copy because it had been altered from the original, but in the defendant’s terms it was a true copy because it was a copy that had been corrected from the original.

 

3. Don’t assume that an irritating witness is being dishonest.

 

Demeanour can be misleading and can result in judicial bias.

 

4. An appeal court, working from a transcript of the trial, customarily acknowledges the advantages that the trial judge had in seeing witnesses and deciding credibility, but those advantages can be over-stated.

 

Here, the Court of Appeal had the advantage (although it didn’t say so) of the objectivity gained by not being subjected to the stress and errors of judgment caused by the irritations of trial.

 

5. Bias can cause a judge to take sides, and to permit an objectionable style of cross-examination of a defendant.

 

Here, the Judge in his verdict described the prosecutor’s cross-examination of the defendant as “skilful and penetrating”, whereas the Court of Appeal saw it as “overall unfair and at times bullying.”

 

6. Failure at a first appeal (here, to the High Court) should not discourage counsel from seeking leave for a second appeal (as here, where it seems counsel wasn’t even slightly discouraged) when the result seems wrong. Even when the Court grants leave on some points, a more fundamental point may be discovered in the actual hearing where the Court has the benefit of argument.

Sixteen!

This blog has now existed for sixteen years.

Longer than Prime Ministers, Presidents, and most Chief Justices. 

Longer than much of the relevant legislation.

Longer than most prison terms.

Longer than most people stay in the same job. 

Longer than most people stick with a hobby. 

Longer than most marriages.

And, one hopes, longer than the pandemic will be with us.

(This is not a poem.)

Law and precision

This, my 701^st post, is about authority and precision as aspects of the rule of law.

 

Borrowdale v Director-General of Health [2020] NZHC 2090 is about some official statements that were made in the earliest days of our Covid-19 lockdown.

 

Were these statements law?

 

The Director-General of Health had the power to make statements of law, but this power was given by (the then) legislation to him alone. The Prime Minister did not have that power, so statements she made at media briefings were not law. Nor were interpretations of the Director-General’s statements of law, issued by various officials.

 

Unfortunately, the Director-General did not initially realise that it was all up to him to make law. He apparently thought that his role was advisory and that the PM and the Minister of Health could issue statements that were legally binding.

 

This could be what led to the Director-General speaking in terms that any lawyer, and most people, would regard as imprecise. It also led to the PM speaking vaguely, issuing encouragements (which would have been appropriate) but couched in mandatory terms (which were unlawful). These caused people to confine themselves to contacts with only a few people in their “bubble”, thinking that doing so was a legal obligation.

 

The Full Court of the High Court held that the unlawfulness was justifiable. That apparently means that no one is liable for the unlawfulness. Fair enough, of course, since things were done under urgency and the first consideration was public safety.

 

The Court said (at [291]), “The rule of law requires that the law is accessible and, so far as possible, intelligible, clear and predictable.”

 

There is a distinction between stating the law and interpreting it, and this is illustrated by the Court’s upholding of the lawfulness of the Director-General’s order that all but “essential businesses” must close, because "essential businesses" was defined in that order in a way that was “clear and fixed” (at [279]), notwithstanding that the list of such businesses, prepared by other officials and published online, changed from time to time. The list was legitimate interpretation, an executive function. The definition was “certainly broad, but we think it has parameters and was capable of being given an ascertainable and reasonable meaning in any individual case” (at [276]).

 

You can see that this is a rather delicate matter. I remain concerned about the limitations on people’s right to exercise, and the vagueness of the current requirement that places of exercise must be “readily accessible” (see my update at the end of this post). A readily accessible distance to walk for an athletic person may not be for a sedentary enforcement official or a sedentary judge.

Furthermore (grrr...) today we had an example of official confusion of advice and order, in the Minister of Health’s 1.00pm media update on the crisis. 

 

He is reported to have said, “stay in your bubbles, don’t go out unless you have to, and please wear a mask if you do have to go out. As the weekend approaches, those rules still do apply.”

 

It’s the contradiction between “please” and “those rules”: do we have to wear a mask if we “have” to go out, and what sort of restriction is not going out unless we have to?

 

The Minister’s interpretation of his own order is not part of the order itself. If he wanted to include those restrictions, he should have put them in the order. That is the clarity that the rule of law requires. There is, currently, nothing in the order to require people who go out to wear masks. Plainly, it may well be good sense to do so, and that is all the more reason to put the requirement in the order and so to make it law.

 

And as for “don’t go out unless you have to”, this is not the law. The order permits going out for “essential personal movement”, which includes “limited recreational purposes”. In ordinary language, recreation for limited purposes is not something one has to do. Recreation is not compulsory, but it is permitted, despite the Minister’s comment suggesting there is a rule prohibiting it.

 

That this sort of bumbling obfuscation should have occurred the day after the Borrowdale decision was published – when it must have been fresh in the Minister’s mind – is most unfortunate.

Review: “Expert Evidence About Memory in New Zealand Sexual Violence Trials and Appellate Courts 2001 to 2020” by Suzanne Blackwell, Fred Seymour and Sarah Mandeno (June 2020).

This Report is essential reading for counsel who are considering calling expert psychological evidence with a view to challenging the accuracy of a complainant’s evidence in a sexual violence case. It is also essential reading for any psychologist who has to decide whether proposed testimony in such a case will withstand attack for scientific unsoundness.

 

Its survey of the scientific literature that has been cited by experts when providing evidence about why a complainant may be mistaken about a relevant matter in a sexual violence case may well leave the reader with the impression that such scientific experimentation that has been done is rudimentary, flawed, and of negligible real relevance to such cases.

 

For example, on the topic of eyewitness identification and transference, the authors point out that research on mistakes made involving perpetrators who are strangers to the complainant is misleading or plainly wrong if applied to a case where the defendant is well known to the complainant. Similarly, in relation to studies on the “post-event (mis)information effect”, where in laboratory studies participants are deliberately given misinformation about what happened to see how that impacted on their subsequent accounts. These have a relevance problem: they mostly involve misinformation about minor, unimportant or subtle details, not the major details of a traumatic experience, or they involve observations of an event, not participation in it. They do not, and of course ethically cannot, concern sexual violence committed on the subject of study. Nor is there current scientific literature on the relevance of a sexual violence complainant’s confidence in giving evidence to the accuracy of that evidence, and the accuracy-confidence question is not settled science.

 

Similarly, false memory implantation studies are generally so artificial as to have minimal relevance to cases of sexual violence. They may be of relatively innocuous events, or carried out on university students, or use degrees of suggestion or social persuasion that have no relevance in the circumstances of a trial. And where there has been an ongoing relationship between the complainant and the defendant, there appears to be no research on how that might have affected complainants’ memories of abuse.

 

This is not to say that everything is necessarily uncertain. The authors summarise points on which a general consensus been established (with inevitable case by case exceptions) about children’s memory reports and suggestibility, including the danger of suggestive questioning, the loss of peripheral detail when there is delay, and the loss of detail of each episode when abuse has extended over a long period. Importantly, the authors offer guidance on how to evaluate experimental studies on children’s memories of sexual abuse, and stress the need for expert witnesses citing scientific studies to express the uncertainties of such evidence. Experimental research “does not and cannot represent the complexity and severity of sexual abuse.” (p 127)

 

Briefs of evidence that have been used in the cases surveyed here have tended to cover standard topics, even when not relevant to the case in which they are intended to be used, they tend to speculate on things such as post-event misinformation and transference, citing research but omitting to repeat reservations that the researchers may have expressed, such as the doubtful relevance of experimental studies to sexual abuse cases, or not declaring when their opinion does not have consensus within the literature.

 

The importance of recognising the body of knowledge available to clinical psychologists is also discussed by the authors. I imagine they would have more experience with genuine victims of sexual abuse and violence, rather than with liars, so they would not be ersatz lie detectors. Just potential myth-dispellers. The authors’ aim is to enhance complainants’ access to justice, and it is to be hoped that the defence, prosecution and judicial participants in court process will benefit from this valuable resource.

Evidence that might be wrong

I found it unsettling to read of scepticism about the prospects of success on an appeal referred to the Court of Appeal after consideration, by a retired judge, of fresh evidence.

As the matter is to be before the Court of Appeal again I say no more about that case. In fact, I know no more about it than anyone who has looked at newspapers or listened to news reports on the radio.

How should a fact-finder, a judge or a jury, deal with the evidence of a witness who might be mistaken?

Many kinds of testimony have an inherent risk of being wrong through mistake.

Should this evidence be assessed by comparison with other evidence on the same point and then be accepted or rejected before all the evidence is considered as a whole? Or, should assessment of the risk of error be suspended until all the evidence has been given and a verdict has to be decided on?

The difference is that suspension of decision on risk of error prevents the fact-finder from forming a theory about the result before all the evidence has been given. A premature theory can bias the assessment of other evidence.

It is unsafe to assess a case as strong before all the evidence in the trial has been given. Nevertheless, we expect a prosecution case to appear strong before a trial, for we do not want people to be prosecuted on weak evidence.

Juries are routinely told by judges that they must suspend judgment until after they have heard all the evidence, the addresses by counsel and the instructions on the law from the judge.

But, and here there is a risk of error, juries are also told that they must, in looking at all the evidence, decide what they accept and what they reject, and then decide whether the evidence they accept is sufficient to prove the prosecutor’s case beyond reasonable doubt.

This suggests a two-step approach to the evidence as a whole. First is the filtering out of evidence that, on an overview, the fact-finder rejects because it must be wrong. For example, evidence of a cast-iron alibi may mean that an eyewitness identification of the defendant at the scene must be wrong. The eyewitness evidence does not, in those circumstances, carry a possibility that it may be right. Second, considering all the remaining evidence, some may obviously be right, for example because there was no dispute about it, and some may most likely be right but with a smaller possibility that it is wrong. This sort of evidence is not taken on an all-or-nothing basis because the possibility of it being wrong is relevant to its probative value and to whether on the whole of the evidence there is a reasonable doubt about the defendant’s guilt.

I wouldn’t be as sceptical as the folk mentioned in the news report cited above. Judges are, in my experience of over 40 years of looking at them, fiercely independent-minded people. Any barrister who has struggled to get a judge to follow precedent will agree. Being trained as lawyers, they take pleasure in arguing, and they certainly don’t expect their opinions to be automatically accepted just because they are judges or retired judges. Their overriding concern is to make the law work rationally and justly.

Unable to prevent injustice?

Our little nation (or as we call it in pandemic times, our team of five million) was agog with disbelief today at news of an injustice that the courts could not correct: Fitzgerald v R [2020] NZCA 292.

Our “three strikes” legislation required the court to impose the maximum term of imprisonment available on the defendant. In a Wellington street he had kissed a stranger on the cheek and had assaulted her companion. While the victims no doubt experienced some trauma, they may not have known that Mr Fitzgerald was mentally disabled.

The offences themselves would have not warranted terms of imprisonment. It was only Mr Fitzgerald’s record of more serious sexual offending that set him up for the maximum penalty for what he was charged with. Seven years’ imprisonment.

All four of the judges involved – the sentencing judge and the three Court of Appeal justices – agreed that the result was manifestly unjust. The one Court of Appeal justice who dissented insofar as he found an interpretive solution laid the ground for an application for leave to appeal to the Supreme Court.

Amazingly, it took the Court of Appeal 10 months from the hearing to deliver its judgments.

Apart from wrangling over whether a discharge without conviction can be ordered when a sentence is compelled by statute (and one has to wonder why “minimum” and “maximum” were thought to mean the same thing, and in any event they were irrelevant as here the penalty was fixed), the question is naturally raised: could there be some alternative way of avoiding the injustice?

In the circumstances, charges of offensive behaviour were available, or even just two charges of common assault (this was the charge he faced in respect of the second victim). Maximum penalties of $1000 fine, or 1 year in prison respectively.

Was the decision about what charges to bring against Mr Fitzgerald made reasonably? Judicial review of charging decisions is available, and the issue in such proceedings would be whether prosecution for the particular charges that were filed was in the public interest. Plainly, the judges here must have had doubts about that, in view of the inevitable penalty upon conviction. The prosecutor, when deciding what charges to file, should be guided by the seriousness of what the defendant actually did, not the seriousness of the most serious charge that could be filed. The seriousness of what the defendant actually did should be assessed by the likely starting point for sentencing. Here it is clear that a fine or a community based sentence would have been an appropriate measure of the seriousness of the defendant's conduct.

What, though, if it is now too late to review the decision on choice of charges?

The only other “thinking outside the box” remedy that occurs to me at the moment is the stay of proceedings. For this, the Court would have to be satisfied that continuation of the proceedings would undermine public confidence in the integrity of the judicial process. Does judicial paralysis in the face of an unjust result undermine public confidence in the integrity of the judicial process? Finding itself faced with having to impose a manifestly unjust sentence, a court might consider whether to stay the proceedings before that point, even, perhaps, without prejudice to the filing of lesser charges or the addition of lesser charges to the charge list, or the substitution of convictions for lesser offences.

See Osborne v Worksafe New Zealand [2017] NZCA 11 at [36].

Still, the case may not be over, so I say no more.

Update: the Supreme Court granted leave to appeal: Fitzgerald v R [2020] NZSC 119 (3 November 2020), and allowed the appeal: Fitzgerald v R [2021] NZSC 131 (7 October 2021), noted here. The High Court, holding that the decision to prosecute the serious charge was a breach of Mr Fitzgerald's right to be free from grossly disproportionate punishment and awarded him compensation: Fitzgerald v Attorney-General [2022] NZHC 2465 (27 September 2022).

Should guilty pleas be mitigating factors?

It’s time for some devil’s advocacy.

Should a guilty plea be a factor that mitigates sentence?

Yesterday’s revision of the methodology for calculating the mitigating effect of a guilty plea, Moses v R [2020] NZCA 296, gives such pleas in most cases additional weight.

The Court stated the principal justification for a guilty plea discount (at [22]):

“...benefits to the judicial system and participants in it supply the principal justification for a guilty plea discount.”

What are these benefits?

If the Court means cost saving, that is unconvincing. With backlogs of cases to deal with, the annual costs of the courts and the prisons will be the same. Guilty pleas simply result in the pleaders dropping out of the queue of people awaiting hearings so that those further behind may move forward. There is no chance of the courts running out of work and being able to close down, which would be the only way money could be saved.

And as far as prisons are concerned, a shorter sentence for a guilty pleader will not save money, because that person’s cell will immediately be occupied by someone else. The prisons are not going to run out of detainees, so they will have their normal annual costs. The only way to save money in the prisons is to close them.

So, no money saved, just a bit of queueing courtesy that reduces waiting time for some individuals.

The Court was right not to seek moral grounds to justify guilty plea mitigation. Utilitarianism doesn’t fit: the only added happiness is to be found in those who benefited from queue courtesy, and this may well be offset by the unhappiness caused to victims who see their assailants receiving lighter sentences. Nor does pragmatism, as no cost saving is achieved and there is a risk that some innocent people will be induced to plead guilty rather than face the risk of loss of mitigation in the event that they are wrongly convicted. And deontological justification doesn’t work either: true enough, the courts have a duty to apply the Sentencing Act 2002, which requires plea to be taken into account, but what is the moral basis for that?

I can remember when the idea that an offender should receive a sentence discount for pleading guilty would have been scoffed at. It was sufficiently controversial for me to write about it in an article, “Sentence Discounts for Pleas of Guilty” [1986] New Zealand Law Journal 151. What would have been, and still is, acceptable, is a reduction in sentence for genuine remorse that demonstrates an effort to make amends. The fact that genuine remorse will go together with a guilty plea does not mean that the guilty plea should be a separate ground for mitigation.

I don’t ignore the argument that the saving of stress to witnesses who would otherwise have to give evidence and be cross-examined is a consideration deserving of recognition in mitigation of sentence. But usually that will be a sign of genuine remorse, deserving of recognition on that separate ground.

The more you think about it, the stranger it seems. No one will say so, because defence lawyers cannot object to a mitigating factor, and prosecutors cannot ask the courts to ignore precedents. Parliament can’t change the law, because the economic argument that guilty pleas save costs is so convincing to most people, and a guilty plea is so easily confused with remorse.

Ratio decidendi and stare decisis: how firm are the foundations?

It is disconcerting how difficult some central ideas in law can be when they are used in practice. In theory, ascertaining the legal proposition decided in an authoritative case should be simple enough. It is called the ratio decidendi, and law students encounter the concept from almost day one.

An associated central idea in law also has a Latin name: stare decisis. This is the idea that decisions about what the law is should be respected and applied to the extent that they are relevant in subsequent cases. The law needs to be predictable in its application, not arbitrary. This is a requirement of what is often called the rule of law. Our society is orderly to the extent that we accept the rule of law.

When a case gets to the final appeal court, it must be open to contrasting results. Otherwise, it wouldn’t have got that far. If the ratio of the final court’s decision is easy to identify, it will be difficult for subsequent courts dealing with the same issue to apply the earlier decision differently. But controversy over the ratio makes the law uncertain and open to change.

Ramos v Louisiana, discussed here on April 25, 2020, is a good example of a case where the ratio of an earlier decision was open to different interpretations. That case is particularly interesting for Kavanaugh J’s discussion of when a precedent may be overturned.

Overturning a precedent is clearly a serious step to take, because it challenges the rule of law. It is far more preferable for the earlier ratio to be reinterpreted, with reasons explaining how it came to be misunderstood. In June Medical Services LLC v Russo USSC No 18-1323 (June 29, 2020) Roberts CJ, the swing vote, stressed the importance of following precedent.

One source of difficulty in ascertaining the ratio of multi-judgment cases is where concurring judges give reasons for taking a slightly different view of the law from the view taken in a joint judgment, and the joint judgment does not address those alternative reasons. This happened in Nguyen v The Queen [2020] HCA 23 (30 June 2020). Here, the judgments of Nettle J, and in particular of Edelman J, appear entirely persuasive, but the joint judgment, with which the concurring judges in other respects agreed, does not explain why those concurrences are faulty. It’s almost as if the Court was deliberately setting up an interesting exercise for law students.

Discrimination on grounds of sex: Bostock v Clayton County, Georgia

It was most interesting, even amusing, to read the new definition of “sex” offered by the Supreme Court of the United States by a majority of 6-3 in Bostock v Clayton County, Georgia No 17-1618, June 15, 2020.

The context was discrimination, and the issue was whether an employer who fires an employee because they were homosexual, or, in another jointly heard appeal, transgender, thereby discriminates against that person because of their sex.

Prohibitions against discrimination because of sex have not always included homosexuality. Sometimes homosexuality is mentioned as a separate instance of prohibited discrimination.

For example, initially the New Zealand Bill of Rights Act 1990 did not specify sexual orientation as being within the prohibited discriminations in s 19, although it did specify sex as being included within those prohibitions. But later, s 19 was amended with the coming into force of the Human Rights Act 1993, and sexual orientation became a specific matter over which discrimination was, and is, prohibited: s 21(1)(m), in addition to sex s 21(1)(a).

There would be no need to specifically add sexual orientation if it was obviously within the prohibition of discrimination on grounds of a person’s sex.

The majority’s paradigm works like this: discrimination on grounds of sex includes dismissal of an employee because of behaviour that would not lead to the dismissal of an employee of the opposite biological gender.

Enough of what the majority said. What are the implications?

In this paradigm, “behaviour” can include many things, not just having sex (or displaying an interest in having sex) with a person of the same biological gender. Various things leading up to full cross-dressing could qualify: fingernail painting, makeup wearing, surgical modification of body shape, wig wearing, suggestive clothing, and so on. Opposite-gender mannerisms and speech characteristics would also fit the paradigm.

Some attention was given to whether an employer’s announced general policy (“We do not hire gays, lesbians, or transgender individuals”) was discriminatory against sex. Alito J, dissenting, agreed with a concession in argument that this would not be sex discrimination. But obviously, if such a person was employed and their infraction of the policy later discovered, then firing that person for that reason would fit the majority’s paradigm of sex discrimination.

Alito J also was concerned with implications under other legislation, and in contexts such as bathrooms and locker rooms. Put plainly the point was, would a heterosexual person be comfortable with a transgender person – entitled under the majority’s opinion to share a locker room - looking at their naked body? Women’s sports were also an area of difficulty, if men who identify as women are not to be given an unfair advantage in that arena.

And, continued Alito J, are segregated accommodations, such as student living facilities still permitted? Similarly, do the segregating practices of some religions infringe the new understanding of sex discrimination?

Various other examples of potential problems were mentioned, including the effect on freedom of speech of the now-apparent obligation to use gender pronouns in a non-discriminatory way.

Lots of fun for lawyers is on the horizon.

The split of the Court is also of some interest. The Bush Junior nominees split (Roberts CJ in the majority, Alito J dissenting), as did the Trump nominees (Gorsuch J leading the majority, Kavanaugh J dissenting) the Clintons (Ginsburgh and Breyer JJ) were in the majority, as were the Obamas (Sotomayor and Kagan JJ), and the Bush Senior nominee (Thomas J) joined the dissent of Alito J.

COVID-19 lockdown: how far may you stray?

We are currently in level 3 lockdown in response to the COVID-19 pandemic.

How far may we travel from our home or residence to get some exercise?

The law must not be so vague as to be meaningless. This is not to say that all vagueness is meaningless. Courts are familiar with getting to grips with concepts such as, what is “reasonable” force in self-defence, what is “disorderly” behaviour, what is “indecent” material, etc.

The lockdown conditions are prescribed in the Health Act (COVID-19 Alert Level 3) Order 2020.

Of interest here is clause 7(e)(i):

“A person is permitted to do any of the following as essential personal movement: ... leave their home or place of residence for the purpose of exercise or other recreation if—

... it is done in an outdoor place appropriate for that kind of exercise or recreation that is readily accessible (including by using their vehicle) from their home or place of residence (and, in any case, is within the same or an adjacent region); ...”

The expression “readily accessible” is not defined in the Order, but “region” is.

At this point there is some complexity, for “region” means:

“the area of the Civil Defence Emergency Management Group (under the Civil Defence Emergency Management Act 2002) of which the relevant territorial authority is a member”.

The central concept here is a civil defence emergency management group (CDEM group). There are 16 such groups in New Zealand. Territorial authorities are listed in Part 2 of Schedule 2 to the Local Government Act 2002.

So, if you are in Auckland, you are in the territorial authority of the Auckland Council, and this is a member of the CDEM Group called the Auckland CDEM Group, indicated on the map.

Sticking with the Auckland example, “adjacent” regions are the Northland CDEM Group, and the Waikato CDEM Group. In contrast, the Bay of Plenty CDEM Group is not adjacent to the Auckland CDEM Group.

This is, it turns out, quite straightforward. But it leaves us asking, are all locations within the Auckland CDEM Group “readily accessible” to a person who resides in the Auckland CDEM Group (or to a person who resides in the Northland CDEM Group or in the Waikato CDEM Group)?

Why does the Order mention these groups at all, if the more constrictive condition on movement is the “readily accessible” one? Or, does “readily accessible” mean something like by one mode of transport (hence the reference to vehicle). Does the Order prohibit movement by car followed by completion of the journey on horseback? I jest, of course. But does it prohibit travel by car then by bicycle?

But Don, you may say, the government has put guidance on this on its COVID-19 website. It says, under FAQs for recreation:

“How far can I drive to do a recreation activity?

“You should drive as short a distance as you can, and still do the activity. You must stay local.

“Your nearest recreational area could mean travelling to a neighbouring region if you live on a regional boundary, as long as this is still local and a close distance to your home. Travel to your nearest park or beach, not your favourite one.”

It plainly says here that the requirement is “stay local”.  This is further explained under the heading Exercise at Alert Level 3:

“Where you can exercise

“Stick to your local area. For example, go to your nearest beach or park, not your favourite one. Staying overnight at a bach or holiday home is not permitted.

“You should drive as short a distance as you can and still do the activity.

“If you live on a regional boundary, this might mean travelling to a neighbouring region. This is fine as long as it’s still local and a close distance from your home.”

Quite understandable. Why isn’t this in the Order? Being advice from the executive branch it is not law, unless it comes within the powers of delegation of the official who issued the Order (the Director General of Health). But under the Health Act 1956 the Director General has no power of delegation in this respect (note the repeal of s 5B; current delegation powers exist only under s 112K in respect of the National Cervical Screening Programme).

To what extent, as a matter of law, are the executive indications about staying local able to be used to interpret the Order? The Interpretation Act 1999, ss 5 and 34 are relevant here. Section 34, specifically relevant to orders of this sort, refers us to the Act under which the order was made, but the Health Act does not define “readily accessible”. We are left wondering whether “readily accessible” really corresponds to only “staying local”.

Lord Sumption has stressed the importance of distinguishing law from executive directive, lest freedoms be eroded by fiat. The courts might be cautious about applying executive directives instead of legislation (in this case, subordinate legislation in the form of the Director General of Health’s Order). Everyone needs the law to be clear. Instead of using the generality “readily accessible” – which courts can interpret but of course after the event of an alleged infraction – the order should use agreed units of measurement: you may walk for X km, you may drive for Y km and then walk for X km.

But where is the legislative authority for including restrictions on movement in an Order? This Order was made purportedly, as stated in the first sentence of the Order, pursuant to s 70(1)(f) and (m) of the Health Act 1956. Prohibition of congregating is allowed, but there is no reference to prohibiting movement.

Permitting people to move outside their residences for the purpose of exercise is so obviously desirable that, if on strict interpretation there is an absence of statutory power to make orders regulating people’s movements, some justification needs to be found. Enforcement requires lawful authority. Constitutional lawyers will point to a shift in what Kelsen called the Grundnorm, according to which near-universal public acceptance of rules is what gives them de jure status. Radical indeed, to the point of being revolutionary (and indeed this idea is used to explain successful revolutions). However, such an esoteric constitutional and jurisprudential concept, like arguments that endeavour to bridge the gaps that sometimes occur between law and common sense (or, if I might be permitted to add another language, la réalité), is unlikely to be well received by judges.

Obviously the power to regulate movement needs a source in legislation.

Update: And now it has one: the COVID-19 Public Health Response Act 2020, s 11(1)(a), and the COVID-19 Public Health Response (Alert Levels 3 and 2) Order 2020, clause 9(e), although it still uses the concept of ready accessibility. I guess that if you have walked there from home the place must be readily accessible. For the High Court (Full Bench)'s view on vagueness, see Borrowdale v Director-General of Health [2020] NZHC 2090, at [291]. See also S v Commissioner of Police [2021] NZHC 743 at [84] on the requirement of clarity for the purposes of lawfulness under the New Zealand Bill of Rights Act 1990.