Principled evolution, or more mental gymnastics?

Funnily enough, the same day as the High Court of Australia heard the phrase "mental gymnastics" used by one of its Judges (Kamleh v R [2005] HCA 2 (3 February 2005) per Kirby J; see my blog entry for Friday, February 04, 2005), Lord Carswell in the House of Lords used the same expression: R v Hayter [2005] UKHL 6 (3 February, 2005).

The fundamental tussle in Hayter was over whether the House of Lords should judicially change the law relating to hearsay, when both the Law Commission and Parliament had not. By a majority of 3-2 the law was changed. Lords Brown and Carswell dissented.

Two aspects of Hayter are of interest here. First, should a judge, faced with a no-case submission at the close of the prosecution case in a joint jury trial, be permitted to make a provisional ruling to the effect that there is a case against one accused if and only if the jury convicts another accused? Second, should the fact of one accused’s guilt, proved by his confession in the absence of the other accused, be able to be used as evidence against that other accused? Because the second of these questions was answered "yes", the first question disappeared as an issue, as the confession became evidence against the other accused thus constituting the case to answer.

An important limitation to the scope of this change in the law was specified: the confession by one accused (in the absence of the other) is only evidence against the other to the extent that it was made against the self-interest of the confessor; it is not evidence against the other accused to the extent that it asserts the guilt of that other accused. This recognises the basis upon which the confession can be assumed to be reliable.

It should also be remembered that this new exception to the hearsay rule only comes into play when the confession of one accused is relevant to the guilt of another.

This is, no doubt, a sensible development. Lord Steyn, at para 25, called it a "a principled evolution in keeping with modern developments, statutory and judge made, which corrected some of the worst absurdities of the law of evidence of a bygone era." He likened it, unconvincingly, to the joint enterprise exception to the hearsay rule. I say "unconvincingly" because the confession was not in furtherance of the pursuit of the common enterprise on the facts of Hayter, and the analogy is potentially confusing. The "in furtherance" requirement is what gives the statement its apparent reliability in joint enterprise cases, and a foundation in reliability is essential to the "principled evolution" of which Lord Steyn speaks.

The mental gymnastics that concerned Lord Carswell, at para 73, arose on the assumption that the hearsay rule remained unchanged, so that the jury would use the contents of the statement only against its maker, yet the guilt of that person, but not the contents of his confession, could be used against the other accused. However, on the law as changed by the majority, gymnastics are still required when a statement has elements of confession together with elements of accusation against the co-accused. In such cases, the confessional aspects are now admissible against the co-accused, but not (as has always been the case, except where the joint enterprise exception applies) the accusatory elements. Such gymnastics are not all that difficult.

In summary, it seems that the proposed limits of the new rule are:

• joint trial
• the confessing accused must be guilty for it to be possible that the other can be convicted
• only confessional evidence against self-interest is admissible against the other accused, for example to explain circumstantial evidence

However, when one remembers that the rules against hearsay were developed to guard against unreliable evidence, the appropriateness of these limits is difficult to justify once it is accepted that the against-interest confession is reliable. There is a likelihood that Hayter will encourage a shift towards reliability as the criterion for admissibility.

Accepting the appropriateness of this development of the hearsay rule, we may nevertheless have some doubts about suggestions that Lord Steyn made about the first question referred to here: the no-case ruling. In remarks that seem to have been intended to be of general application, at para 28, he said that the dynamics of a criminal trial may require that rulings of a conditional nature be given. This is correct, to an extent, as far as the example he gave is concerned: the confronting of the accused with accusations that he does not forthrightly deny. There may be situations where the judge has to let evidence of accusations be given, subject to later evidence that he did not deny them; but this, in the context of jury trials, is a little unlikely, as the judge will have the depositions and will already know whether the accused denied such accusations. Lord Steyn thought these situations to be analogous to that of the no-case submission at the end of the prosecution case. Plainly, the situations are completely different. To suggest otherwise is to diminish the significance of the closing by the prosecution of its case.

Limiting reasonable rights

Lord Steyn has, at least twice, stated that the New Zealand Bill of Rights Act 1990 ("NZBORA"), requires that legislation has to have a "reasonable" interpretation consistent with NZBORA before that meaning is to be preferred. He did this in R v A (No 2) [2002] 1 AC 45, para 44, comparing s 3 of the Human Rights Act 1998[UK] with s 6 NZBORA:

"The draftsman of the [UK] Act had before him the slightly weaker model in section 6 of the New Zealand Bill of Rights Act 1990 but preferred stronger language. Parliament specifically rejected the legislative model of requiring a reasonable interpretation."

And he did it again in Ghaidan v Godin-Mendoza [2004] UKHL 30 (21 June 2004), also, spookily, at para 44:

"…the draftsman of the [UK] Act had before him the model of the New Zealand Bill of Rights Act which imposes a requirement that the interpretation to be adopted must be reasonable. Parliament specifically rejected the legislative model of requiring a reasonable interpretation."

We note a slight difference in these quotations: the latter no longer describes s 6 of NZBORA as being "slightly weaker", and it no longer claims that the reasonable requirement is imposed by s 6. This is not, therefore, simply a cut-and-paste exercise. Nor, with respect, is it an accurate statement of the law in New Zealand.

Doubtless, the idea that there is a requirement that a meaning be reasonably open, before it can be preferred pursuant to s 6 NZBORA, comes from a cursory reading of s 5. These provisions are as follows:

5.Justified limitations—
Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

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

Section 4 , to which s 5 is subject, prevents courts from holding enactments ineffective, or declining to apply them, because of their conflict with NZBORA.

Section 5 and s 6 reflect two different concerns. Section 5 addresses the characteristics of rights in any particular case, and s 6 addresses the meaning of legislation. The reasonable limits referred to in s 5 are the limits that might be imposed on the rights, and they are not, pace Lord Steyn, limits on the meaning that shall be given to enactments. Although various approaches to these sections may be viable (as was suggested in Moonen v Film and Literature Board of Review [2000] 2 NZLR 9, (1999) 17 CRNZ 159 (CA) at para 17), and academics make much of the potential obscurities, we might sensibly treat the sections in the order in which they appear in the NZBORA.

Doing that, we first consider the nature of the right and what limitations to it are raised, in the circumstances of a given case, as candidates for being called reasonable. Having identified what the scope of the right is, we then turn to s 6 and ask whether the enactment in question can be given a meaning consistent with that right. Not whether it can reasonably be given that meaning. In deciding this, we are guided, not by the so-called "intention" of the legislature, but rather by what is possible in terms of compatibility with the underlying thrust or grain of the legislation (terms used by Lord Nichols in Ghaidan, above, at para 33).

What Lord Steyn has mistakenly called a weakness in the strength of NZBORA, namely the reasonable limitation, is actually, in s 5, a reflection of limitations that are commonly imposed on rights in international law. Examples occur in the applicable law in the UK, the European Convention on Human Rights ("ECHR"). See, for example, Articles 8, 9, 10, 11. Section 5 NZBORA encompasses situations such as those, but it is also capable of including another form of limitation on rights, the power of a state to act so as to derogate from rights in times of national emergency (ECRH, Art 15). While the derogation power in Art 15 does not include all the rights expressed in the Convention, s 5 of BORA does, on its face, appear to permit wider derogation. In this sense, one might correctly say that NZBORA appears to be weaker. But whether NZBORA is saved from that weakness by the common law remains to be determined.

Hearsay and mental gymnastics

Sometimes it seems right to admit evidence that is technically inadmissible. The problem of rationalising the admission of hearsay evidence can give rise to the making of elusive distinctions. These are between the fact that a thing was said, and the truth of what is asserted in that statement. Other elusive distinctions are between reliable and unreliable hearsay, and between the reliability of evidence and what may properly be called its strength.

In Kamleh v R [2005] HCA 2 (3 February 2005) the difficulty was one of distinguishing between whether hearsay evidence was relevant because of the fact it was said, and whether it was relevant to prove the truth of what it said. In the circumstances of the case, this issue was obiter, as it was not relied on by the appellant and in any event there was no miscarriage of justice because of the overall strength of the case against the appellant.

Nevertheless, the High Court was divided over whether the evidence in question was excluded by the rule against hearsay. Gleeson CJ and McHugh J held, applying Walton v R (1989) 166 CLR 283 (HCA), that the evidence was not hearsay and was admissible, whereas the other three Judges, Kirby, Hayne and Heydon JJ, in separate judgments, expressed difficulties in accepting that Walton was correctly decided.

The evidence at issue in Kamleh was adduced by the prosecution: it was a comment made by Mr Zappia (who had been tried separately for the same two homicides and who had been convicted of manslaughter in respect of each), who was not called as a witness at the appellant’s trial. In this comment he had told a prosecution witness, a few days before the killings, that he and the appellant were going to catch up with one of the victims because he owed them something or they had something to settle with him.

The fact in issue to which this comment was relevant was the fact that the appellant and Mr Zappia had been together at the time of the killings: it showed they knew each other and had a common interest concerning the victim. The appellant did not give evidence at trial but adduced alibi evidence which the prosecution alleged was false.

Applying Walton v R, Gleeson CJ and McHugh J held that the comment was not hearsay: what a person says about his intention is original evidence. The witness to whom Mr Zappia spoke was stating his intention and the report of this was a report of original evidence.

The obvious fragility of this reasoning troubled the other judges. Kirby J was concerned (para 27) at the "feat of mental gymnastics" that was involved; Hayne J pointed out (para 33) that the difficulty lay "in identifying why the fact that an out of court assertion was made is relevant to an issue in the case except for the purpose of demonstrating the truth of the content of the assertion." Heydon J noted (para 38) that the use of such evidence to prove the carrying out of the asserted intention was "highly controversial".

Kirby J thought (para 28) this problem was becoming esoteric because Walton was overtaken by the Uniform Evidence Acts (Cth), s 72. That section provides "The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind." With respect, this seems to preserve the Walton position, which is that they are not hearsay, they are original evidence.

What, then, if the comment in Kamleh is correctly categorised as hearsay? In New Zealand, the position is governed by the common law acceptance of hearsay evidence that is relevant, when the primary witness is unavailable, and when it has sufficient apparent reliability, either inherent or circumstantial, to justify its admission: R v Manase [2001] 2 NZLR 197, (2001) 18 CRNZ 378 (CA). Similarly, the Evidence Bill, s 18(1)(a), proposes that hearsay evidence should be admissible if, inter alia, there is reasonable assurance that it is reliable.

The judge would, in determining the admissibility of the hearsay statement, have to assess its reliability without knowing what evidence the defence would call on the point, unless at pre-trial application or at voir dire the defence wished to reveal that. This is not a great difficulty where the defence relies on alibi, as in Kamleh, because notice of the alibi evidence has to be given to the prosecution. But, in cases where it would not be tactically prudent for the defence to reveal its case prematurely, the judge’s assessment of the reliability of the prosecution’s hearsay evidence would not be fully informed.

Defence "mode of evidence"

Equality of arms in a defended case may require special measures concerning the mode in which the accused may give his evidence. Such measures are provided for by statute in relation to child complainants in sex cases (Evidence Act 1908, ss 23C – 23H), but there are no corresponding provisions for child defendants.

In R v Camberwell Green Youth Court [2005] UKHL 4 (27 January 2005) Baroness Hale, delivering the leading speech, pointed out that the court may exercise its inherent jurisdiction to provide appropriate facilities where fairness so requires:

"[57] … the question is what, if anything, the court needs to do to ensure that the defendant is not at a substantial disadvantage compared with the prosecution and any other defendants (see Delcourt v Belgium (1970) 1 EHRR 355, para 28). That can only be judged on a case by case basis at trial and on appeal. ...

"[59] … the Court of Appeal also made it clear in R v S.H. [2003] EWCA Crim 1208, 28 March 2003 that the court has wide and flexible inherent powers to ensure that the accused receives a fair trial, and this includes a fair opportunity of giving the best evidence he can. In that case the defendant had learning and communication difficulties. The court could allow him the equivalent of an interpreter to assist with communication, a detailed written statement could be read to the jury so that they knew what he wanted to say, and he might even be asked leading questions based upon that document, all in an attempt to enable him to give a proper and coherent account.

"[60] The Strasbourg Court has also held, in V v United Kingdom (1999) 30 EHRR 121, 179, para 86 that
"it is essential that a child charged with an offence is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings".

"[61] The environment and procedures in the Youth Court are already designed with this in mind, although no doubt there will be a need to do more in some cases. The procedures in the Crown Court have also been modified to meet the needs of child defendants following the case of V v United Kingdom, and again more may need to be done in some cases."

A question exists about the correctness of R (S) v Waltham Forest Youth Court [2004] EWHC 715 (Admin), 31 March 2004, in which it was held that there was no inherent power to permit defence evidence by video link as Parliament had treated the subject exhaustively in its (earlier) legislation and had omitted provision for that. But as Lady Hale pointed out, para 62, whether that interpretation of the extent of the inherent power is correct remains to be determined on a suitable appeal.

The New Zealand legislation does not contain a provision that expressly leaves the inherent power of the court unaffected, but it seems unlikely that R (S) v Waltham Forest Youth Court would be followed.

Fairness and the issues

In some situations, tribunals may be given powers to make orders affecting the rights of parties without the need for an oral hearing. In applications for revocation of parole, under the applicable United Kingdom legislation, but not in many other jurisdictions, including New Zealand (Parole Act 2002, s 65(4)(a)), the Parole Board need not hear orally from the respondent or his counsel. Fairness issues may consequently arise, and they did in R v Parole Board, ex parte Smith and West [2005] UKHL 1 (27 January 2005).

Several points were made in this case:

• Whether absence of an oral hearing affects the fairness of the proceedings depends on the circumstances of each case (Lord Bingham, para 27).
• The requirement that the proceedings be fair is fundamental, and arises from the common law rather than being dependent upon the existence of the ECHR or any other Bill of Rights document (Lord Bingham, para 44; Lord Hope para 74).
• An oral hearing may be of use in more circumstances than merely those where some issue of fact has to be decided. Examples are where explanations or mitigating factors may be relevant, or new relevant facts may be brought to light (Lord Bingham, para 35).
• A risk of unfairness arises if only written submissions are permitted and consequently the respondent is not aware of what the tribunal considers important (Lord Bingham, para 35).
• A danger posed by procedures that are routinely disposed of on the papers is that assumptions will be made that are prejudicial to the respondent and in favour of the case advanced by the authorities (Lord Hope, para 66).

One significant point that will have implications for appellate procedures is the need to alert the appellant to issues that the court may consider to be important. Appellants who are unable to obtain legal representation often file written submissions for the consideration of the appellate court, and these are sometimes focused on entirely irrelevant matters. In such cases, the question arises whether the court should seek further submissions on what appears to it to be significant (to the extent that the court is able to identify what that may be; this may be impossible, especially in the absence of a transcript of the trial judge’s directions to the jury).

Similarly, where a court is hearing oral argument on a question of law, should it inform the parties of points that concern it? Occasionally, one encounters coyness from judges who are shy about showing their hand, and sometimes decisions are made on points that have not been fully addressed in argument. One might even wonder whether it is fair for courts to conclude hearings, and reserve decisions, without their being clear as to what the ultimate decision will be.

Precedent and particularity in rights balancing

There is a conflict in New Zealand law between two approaches to balancing of interests when a court decides the admissibility of wrongfully obtained evidence. The governing case, R v Shaheed [2002] 2 NZLR 377, (2002) 19 CRNZ 165 (CA), can be read as permitting a close analysis of the particular circumstances of a given case in carrying out the required balancing exercise. Alternatively, it can be read as permitting the influence of precedent to guide the analysis of the competing interests, so that the decision in each case can be less agonised than it would be if the subject were approached as if de novo. This latter approach is, it is suggested, the preferable one. However, a casual reading of a recent Court of Appeal decision might suggest support for the former alternative: R v F 16/12/04, CA351/04.

R v F includes reference to a House of Lords decision, re S (a child) [2004] 3 WLR 1129 (HL) which was mentioned in this blog on Monday November 1, 2004. The Court of Appeal in R v F at para 23 treated this as support, by analogy, for holding that competing public interests can’t be dealt with at a general level, and that close investigation of the facts and evaluation of factors is required. That approach is, no doubt, appropriate where, as in re S (a child), there was a conflict between the right (of the child, not a party to the criminal proceedings) to privacy, and the right of the news media to exercise freedom of speech. But is this approach appropriate to the Shaheed balancing exercise?

Three fundamental points support the precedent approach:

• The police are entitled to guidance from the courts as to the likely consequences, as far as the admissibility of evidence is concerned, of any of the forms of misconduct that may occur in the purported exercise of search powers.
• The accused is also entitled to know what are the prospects of success for a contemplated challenge to the admissibility of evidence. Both the prosecution and the defence are only informed by the law if decisions have precedent value.
• Precedents should help to isolate the material facts. Precedents should also guide the reasoning process. It would be wrong to interpret R v F as a call for a new beginning in each case.

Some aspects of the reasoning in R v F are, with respect, unsatisfactory. These will be considered further below, but first, it should be noted that these were all obiter, as the Court accepted the Crown’s indication that it did not seek to oppose the appeal being allowed. This indication came in response to a potentially controversial step taken by the Court before the hearing: The grounds for the stopping and search of the appellant’s car seemed rather sparse, and indeed the lower court, the High Court, had ruled that the search was illegal and unreasonable, but nevertheless under the Shaheed balancing of interests, the evidence should be admissible. The Court of Appeal, by Memorandum to the Crown, invited the Crown to advance further information as to the grounds for the search, indicating that if disclosure of these to the defence would compromise the Crown’s position (such as, for example, by betraying a promise of confidentiality to an informer), then arrangements might be made to accommodate that concern.

It should be noted that the search in question was carried out without warrant. If there had been an application for a warrant (not at all practical in this case) then any secrecy concerns could have been met, so the extension of this similar offer to the Crown here was not as bizarre as it might otherwise have seemed. Nevertheless, the warrantless search powers are designed for occasions where the necessary grounds for their exercise arise ex improviso, and should be capable of being stated clearly when the challenge arises. Should there be a need to protect the identity of an informer, the relevant police witness would raise that in the course of his evidence and the Court would take the necessary steps to determine an issue of public interest immunity. Therefore the opportunity held out by the Court of Appeal to the Crown came at an inappropriately late stage in the proceedings, and accordingly the appropriateness of the Court of Appeal’s Memorandum procedure in R v F can be doubted.

Having said that, it may nevertheless be conceded that now the court of final appeal, the Supreme Court (which has replaced the Privy Council in this role), is within the reach of ordinary litigants, the Court of Appeal may well take a more activist role in raising issues that could prompt changes in the law.

So, what are the unsatisfactory aspects of the reasoning of the Court in R v F as far as the Shaheed balancing exercise is concerned? The Court referred, para 27, to public attitudes, saying that public opinion would be against exclusion of the evidence. That, with respect, is not a true reflection of the relevant point. Public attitudes that are ill-informed are immaterial. The Court referred separately, para 28, to the nature of the criminal conduct. This is not really separate from the first point, the public interest. The Court did, however, correctly refer to the likely sentence in this case as being the indicator of the weight to be given to the public interest in the bringing of suspects to trial.

Also unsatisfactory is the Court’s reference to the accused’s privacy interests, para 24 – 26. Certainly, privacy in a car is less than in a home, and the Court acknowledged that the accused’s interests, expressed in BORA s 21, 22, and s 18 MDA 1975, were "in general terms significant". The reference in para 26 to the serious social harm that can arise from the offending, coming as it does immediately after these references to the accused’s privacy interests, appears to be a suggestion that the privacy interests are diminished by the seriousness of the offending. That, of course, would be wrong. The privacy interests are those that everyone enjoys. They have weight reflecting the value that the ordinary person attaches to not being subject to arbitrary official search. This weight may well be outweighed by competing interests, but that would be because those competing interests are stronger, not because the privacy interests are diminished.

In para 25 there is reference to the powers to stop the vehicle that could have been relied upon in this case. The suggestion seems to be that because the police could have lawfully stopped the vehicle, that diminishes the wrongfulness of their stopping the vehicle improperly. That would be a misapplication of authority, which is to the effect that the police are expected to obey the law, so that failure to take available lawful steps counts against admissibility of the wrongfully obtained evidence: R v H 9/11/04, CA61/04 at para 46.

Restraining executive power

Judicial activism is irksome to legislators. In A and others v Secretary of State for the Home Department [2004] UKHL 56 (16 December 2004) seven Law Lords and Baroness Hale upheld the right of detainees to challenge the validity of subordinate legislation. Lord Walker dissented.

Lord Bingham, who delivered the leading speech, quoted, at para 41, Simon Brown LJ in International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728, at para 54:

" … Constitutional dangers exist no less in too little judicial activism as in too much. There are limits to the legitimacy of executive or legislative decision-making, just as there are to decision-making by the courts."

Accordingly, an order, made by the Home Secretary, derogating from the right not to be detained except pending deportation (Article 5(1)(f) of the ECHR), was held to be subject to review on proportionality grounds. Derogation is permitted, under the ECHR, if it is within the terms of Art 15.1: "In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law."

In para 44 Lord Bingham reached his conclusion on proportionality:

"…The European Court does not approach questions of proportionality as questions of pure fact …. Nor should domestic courts do so. The greater intensity of review now required in determining questions of proportionality, and the duty of the courts to protect Convention rights, would in my view be emasculated if a judgment at first instance on such a question were conclusively to preclude any further review. So would excessive deference, in a field involving indefinite detention without charge or trial, to ministerial decision. In my opinion, SIAC [the Special Immigration Appeals Commission] erred in law and the Court of Appeal erred in failing to correct its error."

Part of the reasons for the finding of lack of proportionality was that the order was discriminatory. The derogation order was accordingly quashed, and section 23 of the Anti-terrorism, Crime and Security Act 2001[UK] was declared to be incompatible with articles 5 and 14 of the European Convention.

Lord Hoffmann agreed in the result, but for the different reason that he was not satisfied that there was a sufficient emergency to permit the making of the derogation order. He made the point, at para 88, that he was not relying on law peculiar to the European context, and that the common law rights pre-existed the ECHR:

"88. … I would not like anyone to think that we are concerned with some special doctrine of European law. Freedom from arbitrary arrest and detention is a quintessentially British liberty, enjoyed by the inhabitants of this country when most of the population of Europe could be thrown into prison at the whim of their rulers. It was incorporated into the European Convention in order to entrench the same liberty in countries which had recently been under Nazi occupation. The United Kingdom subscribed to the Convention because it set out the rights which British subjects enjoyed under the common law.

"89. The exceptional power to derogate from those rights also reflected British constitutional history. There have been times of great national emergency in which habeas corpus has been suspended and powers to detain on suspicion conferred on the government. It happened during the Napoleonic Wars and during both World Wars in the twentieth century. These powers were conferred with great misgiving and, in the sober light of retrospect after the emergency had passed, were often found to have been cruelly and unnecessarily exercised. But the necessity of draconian powers in moments of national crisis is recognised in our constitutional history. Article 15 of the Convention, when it speaks of "war or other public emergency threatening the life of the nation", accurately states the conditions in which such legislation has previously been thought necessary.

"90. Until the Human Rights Act 1998, the question of whether the threat to the nation was sufficient to justify suspension of habeas corpus or the introduction of powers of detention could not have been the subject of judicial decision. There could be no basis for questioning an Act of Parliament by court proceedings. Under the 1998 Act, the courts still cannot say that an Act of Parliament is invalid. But they can declare that it is incompatible with the human rights of persons in this country. Parliament may then choose whether to maintain the law or not. The declaration of the court enables Parliament to choose with full knowledge that the law does not accord with our constitutional traditions."

Readers who are able to take a broad view will note the similarities of this case to Siloata v R, considered in the previous entry on this blogsite. The same essay of Montaigne, cited there, contains another appropriate observation:

"I hardly agree ... with the opinion of that man [Justinian, by his Code and his Pandects] who tried to curb the authority of his judges by a multitude of laws, thus cutting their meat up for them. He did not understand that there is as much liberty and latitude in the interpretation as in the making of them. ...
"... We have in France more laws than the rest of the world put together [Montaigne was writing in the 1580s]. ... 'As we once suffered from crimes, so now we are suffering from laws' [Tacitus, Annals, III, XXV]."

The Supreme Court and the fundamentals

As predicted in these blogs on 25 August 2004, the Supreme Court of New Zealand has upheld, in Siloata v R 16/12/04, SC CRI 8/2004, the primacy of the requirement of jury unanimity in the face of a statutory presumption of guilt in the absence of proof by the defence to the contrary. The Court of Appeal (in a judgment delivered by the President) had held that where this presumption applies, if the jury cannot agree on their verdict the accused must be convicted because he has failed to rebut the presumption of guilt. That is, according to the Court of Appeal, there was no room for a "hung jury" once the presumption of guilt applied. This view of the law has been corrected by the Supreme Court. It held that where the jury is not unanimous as to whether the accused has rebutted the presumption of guilt, there is no verdict.

In doing the count, if there are any "don’t knows", these go on the side of the guilties, because getting to the line (the standard of proof on the defence) is not crossing it. Thus, 11 jurors in favour of acquittal, and one don’t know, amounts to a hung jury. This is preferable to the Court of Appeal’s approach, whereby 11 innocents and one don’t know would mean a guilty verdict.

I should point out that this decision does not depend for its validity on the requirement that verdicts must be verdicts of all 12 jurors. If that requirement were to be changed, so that a majority of, say, 10 would be sufficient for a verdict, then the Siloata interpretation is that in such a case there must be unanimity among 10 jurors: 10 thinking the accused has satisfied the burden of proof means a "not guilty" verdict; 10 thinking he has not met the burden (or some or all of the 10 being unable to decide whether he has or not, ie being on the line) means "guilty", and less than 10 being sure that he has, or has not, met the burden means a hung jury.

While the law was corrected in Siloata, the result of the case was dismissal of the appeal, because the way the judge had directed the jury at trial must have left them with the correct impression, namely that they must be unanimous in order to have arrived at a verdict. The error in the case had been introduced at the Court of Appeal level, not at trial. Although in this case it might be thought that the defence had won the battle but lost the war, because the conviction was upheld, on a broader perspective, this is a case of the defence losing the battle (this case) but winning the war (getting the law corrected). It must be acknowledged that the Crown did not oppose the correction, simply contending that there had been no error at trial.

It is impossible to devise a legal system, involving a hierarchy of courts, where there will not be the possibility of introduction of errors at each level. Inevitably, with time, there will be the occasional instance of error in the decisions of the Supreme Court, just as there has been in the House of Lords and the Privy Council. It is important that the Supreme Court should regard itself as free to depart from its own precedents when they are shown to have been wrong.

The point considered by the Supreme Court in Siloata was very narrow. There are dangers in looking too narrowly at the law. Montaigne, in "On Experience" (Essays, Book 3 Chapter 13) reminds us of Seneca's observation (Letters LXXXIX): "Anything that is divided into minute grains becomes confused." One might respectfully wonder whether it was appropriate to restrict the issues in this case so as to exclude the important matters of (1) whether the standard of proof on the defence to rebut the presumption of purpose should remain at balance of probabilities, when human rights law favours the lower standard of raising a reasonable doubt, and (2) whether the jurors have to be unanimous on the issue of possession of a minimum quantity of drug before any of them can use the presumption of purpose in their reasoning towards a verdict, when usually the requirement for unanimity permits individual jurors to determine facts for themselves as they work towards a decision. This second point is explored in more detail below.

An aspect of the law concerning use of the presumption was not considered in Siloata because the accused had conceded possession of the quantity of drug necessary to raise the presumption of purpose of supply. This aspect is, does the presumption only arise if the jury unanimously find possession of the necessary quantity of drug, or can the presumption be used as a fact finding tool by any individual juror who is satisfied beyond reasonable doubt that the accused had possession of that quantity? It seems to have always been assumed that the jurors will all be in agreement about quantity before the presumption arises. Indeed, the requirement for unanimity, on whether the accused has satisfied the standard of proof to rebut the presumption, reflects this assumption. A perhaps unintended consequence is that, if one juror is not satisfied beyond reasonable doubt that the accused had possession of the necessary quantity of drug to raise the presumption of purpose, then none of the jurors can use the presumption in deciding the issue of purpose of supply. A preferable approach would, it is respectfully suggested, have been to regard the presumption as a fact finding tool available to those jurors who were satisfied on the issue of quantity; the jury has to be unanimous in its verdict but may reach that verdict by different routes.

I suggest that the presumption has developed an unfortunate mystique which has caused it to be misunderstood. The presumption is simply a fact-finding tool. It should be available for use by any juror who is satisfied that the criteria for invoking it are met. It is a separate matter from the requirement for jury unanimity in the verdict, and it is separate from the issue of standard of proof. Nevertheless, these considerations will all come together in the case. The effect of the presumption is to make it harder for the accused to avoid the conclusion, in the mind of any juror for whom the presumption is available in fact finding, that the drug was possessed for supply.

The Joy of Jurisprudence

Yes, jurisprudence can be useful. Consider the problem mentioned in these blogs on Wednesday November 17, 2004 of whether a person who intends to return a drug to its owner has possession of it for supply: R v Adams 20/10/04, Miller J, HC Wellington CRI 2004-091-341.

Is returning a drug to its owner the offence of “supply” of that drug? How do we decide whether conduct should be an offence when the statutory definition is ambiguous?

We might consult the website of the Oxford Professor of Jurisprudence. Indeed, we did.
Consequently, some ideas emerge from our mental fog, although these may or may not be what Professor Gardner intended.

How do we feel about a person who returns a drug to its owner? Has he done wrong? If we cannot really say that we consider his act wrong, then we should conclude that he has committed no offence.

We may, however, feel that he has done some wrong. How much wrong? Not as much as a person who supplies a drug to a stranger. Why not? Because in returning the drug to its owner, he has not given any new power over the drug to anyone, as the owner had the power to demand it back anyway. So he is not as bad as he could be. There is a “residual” sort of wrong about what he did. There has been a conflict of reasons about why supplying drugs is wrong. On the one hand, supply of a drug to another person increases the amount of access to the drug, and that is harmful. On the other hand, if it is returned to its owner, there is no increase in access; there could even be said to be a decrease in access as the minder of the drug no longer has it. Yet the owner has it, and that is wrong. Looked at this way, the person who returns the drug to its owner has a defence. The offence has occurred but as far as the law is concerned the defence, that the supply was to the owner, prevents criminal responsibility attaching to the supplier.

A third alternative is that we may feel that he has done wrong, and this wrong is not of a merely residual kind. It is a full-blown sort of wrong. In this case returning the drug to its owner is not a defence.

That seems so simple that we may wonder whether we are really doing jurisprudence.

Another sort of analysis is available if we consider the offence of possession of the drug for the purpose of supply. Again, the intention is to return it to its owner. If returning the drug to its owner is a defence to a charge of supplying the drug, possession for the purpose of supply is what might be called a “fault-anticipating wrong”. The wrong is, in expanded terms, possession of the drug for the purpose of supplying it to someone who does not already own it. The fault that is anticipated in this formulation of the charge is the supply to a non-owner. There are two basic wrongs here: possession of the drug, and supply of it to a non-owner. The combination of these basic wrongs creates a “parasitic” or “further” wrong, namely possession of a drug for supply to a non-owner. The feature of the “fault-anticipating wrong” that makes it different from basic wrongs is that the defence, that the intention was to supply the drug to an owner, is actually a negation of the offence itself, instead of being a separate matter that excludes liability.

So what?

Well, the point is to clarify the relationship between wrongdoing and fault. Basic offences, the usual kind, involve wrongdoing but not, if a successful defence is available, fault in its fullest sense. There has, in such cases, been an offence, there has been wrongdoing, but because there is has also been a defence, there has not been enough fault to attract criminal liability. But the other kind of offences, fault-anticipating wrongs, do not, if a successful defence is available, involve wrongdoing. There is, in such cases, no offence, no wrongdoing, and no fault.

Working out these implications of the choices concerning whether returning a drug to its owner is supply, should help decide whether this conduct is wrongdoing.

Public policy exclusion of evidence

The relationship between the common law discretion to exclude evidence on fairness grounds, to the discretion to exclude evidence for breach of the Bill of Rights, is a matter about which the Court of Appeal seems rather hesitant. A misleading approach is evident in R v Murphey (2003) 20 CRNZ 278 (CA), where the discretions seem, without full discussion, to be regarded as being distinct from each other.

The true relationship between these discretions, I suggest, is that they are the same: the Bill of Rights discretion, explained in R v Shaheed [2002] 2 NZLR 377 (CA), is a common law discretion, because the Bill of Rights has no provision for what the consequences of breaches should be. Shaheed does not interpret the Bill of Rights. It does, however, develop the interpretative approach to determining what is unreasonable, in the context of searches, as set out in R v Grayson and Taylor [1997] 1 NZLR 399 (CA). Just as reasonableness involves a balancing of certain factors which emerge from the circumstances of a given case, so too does fairness. It is not surprising that factors relevant to reasonableness will be similar to those relevant to fairness.

In R v Pedersen 12/11/04, CA209/04 the New Zealand Court of Appeal had to address the fairness discretion, as the case did not involve a breach of rights. It did not refer to R v Shaheed, but the factors relevant to the decision, and the decision process itself, to the limited extent to which they were explained in the judgment, can be seen to be akin to the Shaheed model. The police had followed the appellant on to private property to require her to undergo a breath test; there was no evidence that the property was that of the appellant, and for the purposes of the case it was assumed that both the appellant and the officer were trespassers.

"[51] … The trespass [by the police] was brief and minor in nature. There has been no challenge to the accuracy, or the integrity of the police evidence. They were acting in good faith in a situation where it could be inferred that the appellant was attempting to avoid the breath testing checkpoint. In the circumstances, no investigatory alternatives were available for the police, and their actions overall must be considered reasonable. We do not consider fairness requires the exclusion of this evidence."

Here, just as pursuant to Shaheed, the first point to consider is the wrongfulness of the police conduct. In the absence of a breach of rights, this could not be given the same weight as it would have if there had been such a breach. The evidence was reliable and so it could not be suggested that its admission would result in trial unfairness. Good faith, although often mentioned, is, as Shaheed stated, just a neutral factor; the Court could be taken as mentioning it to indicate that the wrongful conduct was not aggravated by deliberation. Absence of alternatives is relevant, because if a lawful procedure had been ignored that would weigh in favour of exclusion of the evidence, as the Court recently pointed out in R v Harder 9/11/04, CA61/04 at para 46. There is also a suggestion of urgency in the circumstances of the case, and this always weighs in favour of admission of the evidence.

In summary, it would have been appropriate for the Court to apply Shaheed directly, rather than to treat the fairness discretion as somehow more mysterious and detached. The result, in any event, is correct.

An individual's access to the courts

Can a person who is detained by officials apply to a court for bail even when there is no prosecution or action brought against him? The Supreme Court of New Zealand has today decided the issue: Zaoui v Attorney-General 25/11/04, SC CIV 13/2004, in a case that departs from the law as had been indicated in some English decisions (eg R v Secretary of State for the Home Department, ex parte Turkoglu [1988] 1 QB 398, 400 per Sir John Donaldson MR).

The central point, around which this cause celebre revolves, is whether the High Court can grant bail to a person when there is no current case, before a court, involving that person. That is, is bail a merely ancillary matter, or is the jurisdiction to grant bail an independent matter? The issue has a faint echo of implications of the majority decision of the Supreme Court of the United States of America in Hamdi v Rumsfeld (see my blogs of 21.9.04 and 26.9.04). Hamdi was not cited in Zaoui, of course, as in Hamdi there was no argument about the court's jurisdiction to hear the case. However the discussion in Hamdi of how judicial procedures should be adapted to the requirements of national security may have some relevance for the bail application that will follow the decision in Zaoui. Hamdi suggests that when it comes to the procedural details of the bail hearing, a more pragmatic approach (in the Posnerian sense) will be appropriate.

The Supreme Court, in taking the formalist approach, has not allowed the law to be governed by administrative convenience. The dangers of doing so were, after all, the lesson handed to the New Zealand Court of Appeal by the Privy Council in Taito v R (2002) 19 CRNZ 224. Fears of a flood of bail applications have not influenced the decision.

The SC described the bail decision in this case in these terms (at para 101):

"This is a case where national security issues arise. It is also a case about the liberty of someone who has refugee status in New Zealand and who is entitled to the benefit of the Refugee Convention requirement that only such restrictions upon his liberty as are necessary should be imposed upon him. The applications fall to be considered against the background of concern for liberty recognised by the Bill of Rights Act and the common law. Accordingly the case raises significant matters of public interest which require careful balance."

Of course, to get to that point, the Court had to decide that jurisdiction to grant bail existed. There had to be an inherent jurisdiction to grant bail that had not been excluded by statute.
The conclusion on inherent jurisdiction was:

"[34] The power of the High Court to grant bail to someone detained is an ancient common law jurisdiction exercised by the superior courts of England in civil and criminal cases. The common law jurisdiction became part of New Zealand law in 1840 [citing English Laws Act 1858]. The powers of the English superior courts have devolved in New Zealand on the High Court [citing section 16 Judicature Act 1908, preceded by the Supreme Court Ordinances of 1841 and 1844 and the Supreme Court Acts of 1860 and 1882]. The power inheres in the Court itself as an independent common law jurisdiction, rather than as an incidental power ancillary to other jurisdiction (as are many procedural powers described as "inherent" or "implied") [citing R v Gage 3 Vin Abridg 518, per Holt CJ; In re Nottingham Corporation [1897] 2 QB 502, 509 per Pollock B; R v Spilsbury [1898] 2 QB 615, 620 per Lord Russell CJ; and RJ Sharpe The Law of Habeas Corpus (2 ed 1989) 141-142].

"[35] Some confusion may arise because the term "inherent jurisdiction" is applied both to substantive and procedural powers. The ancillary inherent powers of courts to regulate their own procedure arise equally in relation to their statutory and common law substantive jurisdictions. Courts which do not possess an inherent substantive jurisdiction (as is the case where their substantive powers are entirely statutory) nevertheless have inherent or implied procedural powers necessary to enable them to give effect to their statutory substantive jurisdiction [citing Department of Social Welfare v Stewart [1990] 1 NZLR 697, 701]."

The terminology here is a bit confusing. "Independent" means "not ancillary", that is, not associated with a matter currently before the court. "Substantive" means concerning the substance of a dispute, so is therefore a term applicable to where bail may arise as an ancillary matter. "Procedural" means how the court conducts its affairs, and this term applies to both independent and ancillary cases.

The Court appears to be saying that the inherent common law jurisdiction can be exercised independently of a matter currently before the court, and its exercise can be a matter of procedure, without having to connect to some substantive issue (and independent cases will not, by definition, involve substantive issues).

The jurisdiction is supervisory, and is best not described as "stand alone". That is, it arises once there is a purported exercise of a power.

"[31] Unless excluded by statute, the inherent jurisdiction of the High Court to grant bail may be directly invoked whenever someone is detained under any enactment pending trial, sentence, appeal, determination of legal status, or (in immigration cases) removal or deportation from New Zealand. The jurisdiction can be exercised whether or not the High Court is seized of proceedings challenging the lawfulness of the detention. Thus, before the Bail Act provided in criminal cases for a statutory right of appeal from the District Court, the High Court commonly granted
bail in its original inherent jurisdiction after bail had been declined by a District Court.

"[32] Detention must be by authority of law. The exercise by inferior courts or officials of a statutory authority to detain falls within the supervisory responsibilities of the High Court. It is mistaken to regard the inherent jurisdiction to grant bail as "stand alone" or in vacuo.

"[33] In the present case, the statute permits detention only by judicial warrant. That imports judicial oversight – first in exercise of the statutory power by a District Court and secondly by the High Court through its general supervisory jurisdiction."

As far as the second consideration was concerned, whether the inherent jurisdiction to grant bail had been excluded by statute, the Court held that there was nothing in the fact that a person was a danger to the security of New Zealand that was necessarily incompatible with release on bail (para 66). It did, however, acknowledge that when bail is an issue, in such cases security will be of major importance (para 69).

This case, from a broad perspective, illustrates the point of prime importance, namely the presumption that Parliament intends its legislation to be consistent with obligations that New Zealand has accepted under international law (para 44). Accordingly, there would have to be strong statutory language to defeat the entitlement of a person to challenge their detention.

Is returning a drug to its owner "supply"?

The tricky problem of whether a person who has been given only temporary custody of a drug has a purpose of supply when he returns that drug to its owner, has arisen again in New Zealand: R v Adams 20/10/04, Miller J, HC Wellington CRI 2004-091-341. The conflicting cases are reviewed, and preference is given to the dissenting speech of Lord Goff in R v Maginnis [1987] 1 All ER 907 (HL). Miller J held that the temporary custodian does not supply the drug when returning it to its owner, because no additional rights or powers are thereby conferred than had existed before. The majority in Maginnis had held that it was not necessary that the supplier (the custodian) should give some power, that he himself had enjoyed, to the other person (the owner), and that therefore the custodian who returns the drug to its owner is supplying it. This was because the owner had no legal right to demand return of the illicit drug.

In end the issue will be resolved according to whichever approach to interpretation the court wishes to take (obviously! I mean the question is open). Some comparison may be made with the issue of the liability of a purchaser for conspiracy with the seller to supply himself with a drug: this has been held not to be a culpable conspiracy because the Act refers to supply "to another" in this context: R v Lang 13/10/98, CA222/98.

My answer: In the case of a temporary custodian, the possession of the drug is shared: the owner retains control, but not custody, and the custodian has custody and, depending on the circumstances (for example, if there is clearly a power to protect possession against third persons), a measure of control sufficient to amount to joint possession with the owner. The giving of custody back to the owner is less than a giving of possession, and for that reason the return of the drug would not be an act of supply.

See also my text, Mathias, Misuse of Drugs (Brookers Criminal Library, electronic edition) at paras 147 and 402.

Miscarriage of justice and strength of the prosecution case

Miscarriages of justice may be thought of as having two roles to play in criminal procedure. The first is as a ground of appeal. The second is where a miscarriage of justice is not "substantial", and on this ground the appellate court may dismiss the appeal (called "applying the proviso").

Miscarriages of justice are usually "substantial". They arise from fundamental departures from proper procedure. Once the appellate court is satisfied that there has been a miscarriage of justice that amounts to a fundamental departure from proper procedure, it will not matter that the evidence in support of conviction was overwhelming. The conviction will be quashed. Usually a re-trial will be ordered.

These observations, which are an intentional simplification of the law, are illustrated by the High Court of Australia, in Subramaniam v R [2004] HCA 51 (10 November 2004). The Court cited Wilde v The Queen (1988) 164 CLR 365 at 373 (per Brennan, Dawson and Toohey JJ):
:
"The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice ...
There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted."

Reference was also made to TKWJ v R (2002) CLR 124, 147 [73], where McHugh J said:

"…in most cases of misdirection on facts, the appellant has the onus of establishing a misdirection, that it might have affected the verdict and that, if it had not been made, the jury might have acquitted the appellant. In some undefined categories of cases, however, the irregularity may be so material that of itself it constitutes a miscarriage of justice without the need to consider its effect on the verdict."

Forcing the accused to have counsel

Mr Milosevic has to accept counsel at his trial.

This decision was upheld by the Appeals Chamber of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("Tribunal" or "ICTY "): Milosevic v Prosecutor, 1 November 2004, Case no. IT-02-54-AR73.7.

Ironically, counsel assigned to Mr Milosevic filed the appeal against the order that Mr Milosevic had to accept counsel.

The right to defend one’s self is not absolute, as the Trial Chamber had recognised throughout the proceedings. Frequent adjournments of the proceedings have been necessary, depending on Mr Milosevic’s blood pressure. Although his health continued to decline, and delays lengthen, he was still able to make strenuous objections to the imposition of counsel on him.

What are the duties of counsel who are imposed on a reluctant client? The Trial Chamber issued a set of guidelines. These allowed for further participation in the conduct of his defence by Mr Milosevic, as the Appeals Chamber observed, "[h]owever, his participation would be secondary to that of Assigned Counsel and strictly contingent on the discretionary permission of the Trial Chamber in any given instance."

The Appeals Chamber noted that the law in many countries allows for restrictions on the right of an accused to represent himself, citing examples in England, Scotland, Canada, New Zealand, and Australia. But the issue here went further than that. At para 13 the Appeals Chamber held:

"It must further be decided whether the right may be curtailed on the grounds that a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial. The Appeals Chamber believes that, under the appropriate circumstances, the Trial Chamber may restrict the right on those grounds."

(para 14): "How should the Tribunal treat a defendant whose health, while good enough to engage in the ordinary and non-strenuous activities of everyday life, is not sufficiently robust to withstand all the rigors of trial work – the late nights, the stressful cross-examinations, the courtroom confrontations – unless the hearing schedule is reduced to one day a week, or even one day a month? Must the Trial Chamber be forced to choose between setting that defendant free and allowing the case to grind to an effective halt? In the Appeals Chamber’s view, to ask that question is to answer it."

In the circumstances, the decision of the Trial Chamber to appoint counsel for Mr Milosevic was upheld. However it did not uphold the particulars which spelt out the role he was entitled to have in relation to counsel. It was wrong (para 16) of the Trial Chamber to sharply restrict his ability to participate in the conduct of his defence. In particular, it was wrong to permit him to cross-examine witnesses only with leave of the Chamber, and then only after counsel had cross-examined. Restrictions on his right to represent himself had to be proportional to what was necessary to accomplish their objective:

"17. These sharp restrictions, unfortunately, were grounded on a fundamental error of law: the Trial Chamber failed to recognize that any restrictions on Milosevic’s right to represent himself must be limited to the minimum extent necessary to protect the Tribunal’s interest in assuring a reasonably expeditious trial. When reviewing restrictions on fundamental rights such as this one, many jurisdictions are guided by some variant of a basic proportionality principle: any restriction of a fundamental right must be in service of "a sufficiently important objective," and must "impair the right... no more than is necessary to accomplish the objective." Similarly, while the International Covenant on Civil and Political Rights allows some restriction of certain civil rights where "necessary to protect national security, public order (ordre public), public health or morals, or the rights and freedoms of others," the United Nations Human Rights Committee has observed that any such restrictions "must conform to the principle of proportionality;... they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected." And the ICTY itself has been guided by a "general principle of proportionality" in assessing defendants’ suitability for provisional release, noting that a restriction on the fundamental right to liberty is acceptable only when it is "(1) suitable, (2) necessary and when (3) its degree and scope remain in a reasonable relationship to the envisaged target."

The Trial Chamber had exercised its discretion wrongfully, in that it failed to establish a carefully calibrated set of procedures which reflected Mr Milosevic’s actual state of health. It concluded:

"19. In light of the foregoing discussion, the Appeals Chamber affirms the Trial Chamber’s imposition of defense counsel, but reverses its Order on Modalities. On remand, the Trial Chamber should craft a working regime that minimizes the practical impact of the formal assignment of counsel, except to the extent required by the interests of justice. At a minimum, this regime must be rooted in the default presumption that, when he is physically capable of doing so, Milosevic will take the lead in presenting his case – choosing which witnesses to present, questioning those witnesses before Assigned Counsel has an opportunity to do so, arguing any proper motions he desires to present to the court, giving a closing statement when the defense rests, and making the basic strategic decisions about the presentation of his defense. But this presumption is just that: a presumption. Under the current circumstances, where Milosevic is sufficiently well to present a vigorous, two-day opening statement, it was an abuse of discretion to curtail his participation in the trial so dramatically on the grounds of poor health. The Appeals Chamber can hardly anticipate, however, the myriad health-related difficulties that may arise in the future, or use this occasion to calibrate an appropriate set of responses to every possible eventuality. It is therefore left to the wise discretion of the Trial Chamber to steer a careful course between allowing Milosevic to exercise his fundamental right of self-representation and safeguarding the Tribunal’s basic interest in a reasonably expeditious resolution of the cases before it.
"20. The Appeals Chamber stresses the following point: in practice, if all goes well, the trial should continue much as it did when Milosevic was healthy. To a lay observer, who will see Milosevic playing the principal courtroom role at the hearings, the difference may well be imperceptible. If Milosevic’s health problems resurface with sufficient gravity, however, the presence of Assigned Counsel will enable the trial to continue even if Milosevic is temporarily unable to participate. The precise point at which that reshuffling of trial roles should occur will be up to the Trial Chamber."

This restores the proper relationship between counsel and accused: counsel is obliged to follow instructions in the conduct of the defence: R v McLoughlin [1985] 1 NZLR 106, (1984) 1 CRNZ 215 (CA). In the absence of a specific instruction, counsel may make tactical decisions in the interests of the accused: R v S [1998] 3 NZLR 392, also reported as R v Accused (CA467/97) (1998) 15 CRNZ 611 (CA), at p 395; p 614; R v Young 15/9/03, CA13/03. Of course, the way the defence case is conducted, by counsel or by the accused in person, may itself prejudice the court against the accused: R v Sharma 3/9/03, CA431/02.

Is infrared surveillance "search"?

Infrared surveillance may reveal patterns of heat emerging from a building. That in turn, when added to other information, may provide reasonable grounds for the issuing of a search warrant. Cannabis cultivation indoors can be discovered in this way. That happened in R v Tessling 2004 SCC 67 (29 October 2004). The Supreme Court of Canada held that, the present state of technology being insufficient to reveal exactly what was going on in the respondent’s house, he had no reasonable expectation of privacy in the circumstances of this case. Accordingly, there was no breach of his right to be free from unreasonable search.

The United States Supreme Court had held differently in Kylio v US 533 US 27 (2001). There, the majority held that the Government conducts a search of a home when it uses a device that is not in general public use to explore details of the home that would have previously been unknowable without physical intrusion. Further, a such a search was presumptively unreasonable without a warrant.

The point has not yet been decided in New Zealand, but some similar situations have been considered. (See Mathias, Misuse of Drugs, para 1405.) In R v Gardiner 30/6/97, Chisholm J, HC Christchurch T45/97 it was held that camera surveillance from outside premises, where views of the interior of the house were obtained, amounted to a search which, in the circumstances of this borderline case, was not unreasonable. It was noted that the police had good grounds to believe serious drug offending was occurring on the premises. Where police conduct was reasonable, it was not necessary to determine whether video surveillance of the back of a residential property by a camera outside the premises amounted to a search: R v Fraser [1997] 2 NZLR 442, (1997) 15 CRNZ 44 (CA). In that case the area filmed was readily visible to passers-by. Aerial surveillance from an aircraft flying at approximately 500 feet over farmland was not, on the facts, unreasonable in R v Peita (1999) 17 CRNZ 407 (CA), but the Court was careful to point out (at para 13) that "each case must be considered on its own facts, bearing in mind the privacy based nature of the right and its reasonable qualification by the public interest in crime detection".

Third party challenges to trial publicity

When may a third party obtain suppression of publication of the name of an accused? In Re S (a child) [2004] UKHL 47 (28 October 2004) the legal representative of a child sought to protect him from publicity that would arise from his mother’s trial on a charge of murdering his brother. The first notable feature of the case is that it illustrates the process of balancing competing rights. These rights, pursuant to the European Convention on Human Rights (ECHR), are the right to privacy (Art 8) and the right to freedom of information (Art 10).

The House of Lords was careful to emphasise that the circumstances of each case have to be considered. Lord Steyn delivered the speech with which the other Law Lords agreed. He set out the method in para 17:

"… First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case."

Following that approach, the prevailing right was held to be the Art 10 right to information, and the injunction sought against publication was refused.

The second notable aspect of this case is what it says about the common law inherent jurisdiction of the court to prohibit publication. It was held (para 23) that the jurisdiction to prevent publication is now derived from Convention rights, and as far as existence and scope of the power is concerned, the prior case law on inherent jurisdiction need no longer be considered. However, that case law remains relevant in illustrating the balancing process, which developed with acknowledgement of European jurisprudence even before October 2000 (when the Human Rights Act 1998[UK] – "the UK Act" - came into force).

We may well wonder whether this suggests, by analogy, anything for New Zealand law. The UK Act, s 3, requires domestic courts to give effect to the jurisprudence of the European Court of Human Rights so far as it is possible to do so. This is a clear indication that Strasbourg decisions, rather than the prior common law, should henceforth be the guide to the interpretation of Convention Rights.

By contrast, in New Zealand, NZBORA 1990 affirms and promotes the rights set out in it, and it affirms New Zealand’s commitment to the ICCPR. There is no provision requiring foreign court decisions to be followed. The right to freedom of information is contained in NZBORA, s 14, but the right to privacy, relied on in Re S (a child), is not. It is preserved at common law by virtue of s 28, which continues existing rights and freedoms notwithstanding their omission from NZBORA. Such inherent jurisdiction as there is, therefore, should remain alive, and indeed may draw upon the balancing process described in Re S (a child).

Sex and time

A hundred years on, R v Blight (1903) 22 NZLR 837 (CA) retains its potency. The House of Lords has referred to it in R v J [2004] UKHL 42 (14 October 2004), in which a majority upheld the prohibition on the prosecution evading a statutory time limit by alleging a similar offence, not subject to such a limit, based on the same facts:

[65] … there may indeed be some initial difficulties. But your Lordships would merely be adopting the same approach as has applied in the case of the equivalent legislation in New Zealand for over a century, following the decision in R v Blight 22 NZLR 837. Significantly, [Crown counsel] was unable to point to any insuperable problems which the prosecutors or courts had encountered there. On the contrary, when, in R v Hibberd [2001] 2 NZLR 211, the Court of Appeal came to interpret the Crimes Act 1961 as amended to cover homosexual offences, in the light of their experience they deliberately adopted the same approach to the time-bar as had been laid down in R v Blight.

Baroness Hale dissented:

[90] … The rationale behind the time limit can no longer be that which it was said to be in R v Blight 22 NZLR 837. If it is that the defendant can no longer have a fair trial, I would certainly agree that such prosecutions should be stayed either as an abuse of process or as outside the prosecutor's competence to bring. If it is, as was suggested by the Criminal Law Revision Committee when it recommended retention of the time limit in its 15th report in 1984, that people should not be prosecuted for offences which were "stale", it is unclear what this means in a case where a fair trial is still possible. If it means that something which was once a matter deserving of punishment is no longer so because of the passage of time, then this will not invariably be so. At one extreme will be the teenage romance between a boy and a girl who have since gone their separate ways, where no possible personal or public interest would be served by prosecution. At the other will be prolonged and serious abuse of a position of trust by a person who might well be left to do it again unless action is taken. It will all depend upon the circumstances, in which the interests of the accused, the victim and of society will all play their part. A just and humane prosecution policy should be capable of taking all these factors into account.

The difference between the majority and the minority reflects formalist and pragmatic analysis, respectively.

Evidential or legal burdens on the defence

Sometimes the legislation creating an offence places a burden on the defendant, if he is to avoid conviction, to prove something. In the absence of any statutory specification of the standard of proof which is placed on the defence by such provisions, the common law has traditionally held them to impose a legal burden of proof on the balance of probabilities. If he fails to meet this burden, the accused may be convicted even though there might be a reasonable doubt about his guilt. In this sense, legal burdens infringe the presumption of innocence. Courts have recognised this, but have regarded the shift in legal burden as justified. Justifications have been the mischief at which the legislation is aimed, and the ease with which the burden may be met.

In Attorney-General’s Reference (No 4 of 2002) [2004] UKHL 43 (14 October 2004) (decided jointly with Sheldrake v DPP) the House of Lords had to consider the effect of human rights law on this position, in the light of its obligation pursuant to s 3 of the Human Rights Act 1998 [UK] to apply the law so as to conform with the jurisprudence of the European Court of Human Rights in its interpretation of the European Convention on Human Rights. Section 3(1) provides:

"3. - (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

Lord Bingham of Cornhill delivered the leading speech for the majority; the minority agreed with his statement of the law but differed in its application in relation to one of these two appeals. At para 9 the parallel concerns of domestic and European law were mentioned:

"The right to a fair trial has long been recognised in England and Wales, although the conditions necessary to achieve fairness have evolved, in some ways quite radically, over the years, and continue to evolve. The presumption of innocence has also been recognised since at latest the early 19th century, although … the presumption has not been uniformly treated by Parliament as absolute and unqualified. There can be no doubt that the underlying rationale of the presumption in domestic law and in the Convention is an essentially simple one: that it is repugnant to ordinary notions of fairness for a prosecutor to accuse a defendant of crime and for the defendant to be then required to disprove the accusation on pain of conviction and punishment if he fails to do so. The closer a legislative provision approaches to that situation, the more objectionable it is likely to be. To ascertain the scope of the presumption under the Convention, domestic courts must have regard to the Strasbourg case law. It has there been repeatedly recognised that the presumption of innocence is one of the elements of the fair criminal trial required by article 6(1): see, for example, Bernard v France (1998) 30 EHRR 808, para 37."

Strasbourg law was summarised in para 21:

"From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case."

The question comes down to proportionality. In the appeal over which the House of Lords was split, the question involved the interpretation of s 11 of the Terrorism Act 2000 [UK], which provides:

11 Membership
(1) A person commits an offence if he belongs or professes to belong to a proscribed organisation.
(2) It is a defence for a person charged with an offence under subsection (1) to prove—
(a) that the organisation was not proscribed on the last (or only) occasion on which he became a member or began to profess to be a member, and
(b) that he has not taken part in the activities of the organisation at any time while it was proscribed.

What standard of proof does subsection (2) carry? Six considerations were relevant (para 51):

"(1) ... a person who is innocent of any blameworthy or properly criminal conduct may fall within section 11(1). There would be a clear breach of the presumption of innocence, and a real risk of unfair conviction, if such persons could exonerate themselves only by establishing the defence provided on the balance of probabilities. It is the clear duty of the courts, entrusted to them by Parliament, to protect defendants against such a risk. It is relevant to note that a defendant who tried and failed to establish a defence under section 11(2) might in effect be convicted on the basis of conduct which was not criminal at the date of commission.

(2) While a defendant might reasonably be expected to show that the organisation was not proscribed on the last or only occasion on which he became a member or professed to be a member, so as to satisfy subsection (2)(a), it might well be all but impossible for him to show that he had not taken part in the activities of the organisation at any time while it was proscribed, so as to satisfy subsection (2)(b). Terrorist organisations do not generate minutes, records or documents on which he could rely. Other members would for obvious reasons be unlikely to come forward and testify on his behalf. If the defendant's involvement ... had been abroad, any evidence might also be abroad and hard to adduce. While the defendant himself could assert that he had been inactive, his evidence might well be discounted as unreliable. A's own case is a good example. He arrived as a stowaway. He described himself on different occasions as Palestinian and also as Jordanian. An immigration adjudicator concluded that he was Moroccan. The judge, as already noted, thought he might well be a fantasist. He was not a person whose uncorroborated testimony would carry weight. Thus although section 11(2) preserves the rights of the defence, those rights would be very hard to exercise effectively.

(3) If section 11(2) were held to impose a legal burden, the court would retain a power to assess the evidence, on which it would have to exercise a judgment. But the subsection would provide no flexibility and there would be no room for the exercise of discretion. If the defendant failed to prove the matters specified in subsection (2), the court would have no choice but to convict him.

(4) The potential consequence for a defendant of failing to establish a subsection (2) defence is severe: imprisonment for up to ten years.

(5) While security considerations must always carry weight, they do not absolve member states from their duty to ensure that basic standards of fairness are observed.

(6) Little significance can be attached to the requirement in section 117 of the Act that the Director of Public Prosecutions give his consent to a prosecution (a matter mentioned by the Court of Appeal in para 42 of its judgment) for the reasons given by the Court of Appeal in para 91 of its judgment in Attorney General's Reference (No 1 of 2004) [2004] EWCA Crim 1025."

Accordingly (para 53), since it was possible to "read down" the legislation, s 11(2) was held to place an evidential burden, not a legal burden on the accused. That means, as Lord Bingham began by saying (para 1):

"An evidential burden is not a burden of proof. It is a burden of raising, on the evidence in the case, an issue as to the matter in question fit for consideration by the tribunal of fact. If an issue is properly raised, it is for the prosecutor to prove, beyond reasonable doubt, that that ground of exoneration does not avail the defendant."

This case has persuasive value for New Zealand courts, because the influence of the New Zealand Bill of Rights Act 1990 on our common law is comparable to the influence of the European Convention on Human Rights on English common law. It is an illustration of how the interpretation of the burden as evidential rather than legal is not "strained and unnatural" (as it had been described in R v Phillips [1991] 3 NZLR 175 (CA)).

In the two appeals considered by the House of Lords in the case reviewed here, one concerning a defence to an excess alcohol driving offence was held to require a legal burden on the defendant, while the other, in the context of alleged belonging to a terrorist organisation, was held to impose only an evidential burden on the accused.

Reasoning with similar fact evidence

The recent Canadian case, R v Perrier 2004 SCC 56 (30 September 2004), reminds us about the controversy concerning whether evidence about charges on which the jury acquits the accused can be used as similar fact evidence against him on other charges considered at the same trial: see Mahoney, "Basing Convictions on Acquittals: Conjuring by the Court of Appeal" in Robertson (ed) Essays on Criminal Law: A Tribute to Professor Gerald Orchard (2004, Brookers, Wellington). Mahoney argues that a juror who is unsure that the accused committed the other offences, and who therefore would find him not guilty of them, cannot then use the evidence of those when deciding whether the accused is guilty of the offence in respect of which the prosecution says the evidence is relevant on a similar fact basis.

The New Zealand Court of Appeal has held the contrary in R v Holtz [2002] NZCA] 323, [2003] 1 NZLR 667; (2002) 20 CRNZ 14. Care is needed, as the Court pointed out in para 47:

"The care with which evidence of similar acts is scrutinised is justified because of the prejudice that inevitably arises from the risk of guilt being improperly inferred from mere propensity or disposition evidenced by previous bad conduct. But, where the evidence is truly probative and cogent, admission is appropriate so long as the circumstances are such that, while allowing the probative value of the evidence to be availed of, the risk of improper use can be avoided by appropriate directions to the jury."

Essentially the differences in these points of view is attributable to the differing standards of proof for the admission of evidence on the one hand, and the proof of guilt on the other.
In Holtz, at para 38, the Court said:

" … Where [similar fact] evidence is the only evidence or substantially the only evidence available from which the jury is asked to infer that the accused was the person who committed the offence charged, since the offence must be proved beyond reasonable doubt, the accused’s responsibility for the pattern of events necessarily must be found established beyond reasonable doubt before a verdict of guilty is justified. But that is because the offence charged must be proved beyond reasonable doubt. It is not because the similar fact evidence on which a verdict of guilty is based must be established beyond reasonable doubt before it can be used. By contrast it may be that in a particular case the evidence of pattern may be just another strand of circumstantial evidence pointing toward the accused. In that event, to require proof beyond reasonable doubt [of the similar facts], would be quite inconsistent with the proper approach to circumstantial evidence. Accordingly we do not accept as of universal application that, where identity is in issue, similar fact evidence cannot be used unless it is found to the standard of beyond reasonable doubt that the accused was responsible for the past conduct and that the same person was responsible for the offence charged…."

Mahoney agrees (p 41) that similar fact evidence is a form of circumstantial evidence, but suggests that, on the question of admissibility, similar fact evidence needs special treatment because its admission is exceptional. That said, however, Mahoney focuses his argument not on the decision as to admissibility, but rather on the way the jury should use similar fact evidence. He accepts (p 43) that jurors may have initial doubts about circumstantial evidence, and still use it in coming to their decision; but, he continues, if they find the accused guilty of the main offence, that means they must, at that point, have no doubts about the similar fact evidence:

"It is impossible to declare the accused guilty beyond reasonable doubt if doubts about the circumstantial evidence remain at the end of the jury’s deliberations. Doubts about the evidence upon which a verdict is founded amount to doubts about the verdict."

The Supreme Court of Canada mentioned the topic obliquely in Perrier. As to the question of admissibility, the Court said:

"[18] … The point is that we must be cautious when using propensity evidence in the context of identity. We want to be sure, on a balance of probabilities, that the same person committed the acts in question such that we can safely say it is not a coincidence nor a case of mistaken identity."

Then,

"[23] Once the trial judge has determined that the crime charged and the similar act were likely committed by the same person, the judge must then consider whether there is evidence linking the accused to the similar act. …
If the similar facts relied upon were not in fact the acts of the accused, then they have no probative value.
"[24] The threshold is not particularly high. The trial judge must determine whether there is "some evidence" linking the accused to the similar acts. However, evidence of mere opportunity or possibility is not sufficient."

All well and good, as far as admissibility is concerned. How, then, should the jury reason if the evidence is ruled admissible? The SCC followed the English approach:

"[29] … ‘The issue for the jury, once they are satisfied that it is the same gang who have committed both groups of offences, will be whether the prosecution have established on all the admissible evidence that the particular defendant was a member of that gang and, where the prosecution say that that defendant was a member of the gang on both occasions, whether the totality of the evidence has established that beyond reasonable doubt.’ " (a quotation from R. v. Brown, [1996] E.W.J. No. 2403 (QL) (C.A.))

In Perrier it was held that the evidence should not have been admitted, and the Court did not need to examine in more detail how the jury might otherwise have properly used it. There does, however, appear to be consistency with the Mahoney approach.

It is not always necessary to go as far as Mahoney and require juries to convict on the similar fact charges if they also convict on the main charge. As was pointed out in Holtz, things that are, on the balance of probabilities, true, can combine with other evidence to establish something else beyond reasonable doubt. A jury may well be sure of the main charge and acquit on the others, as they did in Holtz. See also the entries under the heading Bayes' Theorem in the Index to this site.

[Update: see the discussion of R v Mitchell (Northern Ireland) on 21 October 2016.]

Last criminal appeal to the Privy Council

The final criminal appeal from New Zealand to the Privy Council is expected to be heard early next year. The Court of Appeal decision, R v Howse (2003) 20 CRNZ 826 has already been noted in this blog for its unrestricted view of the jurisdiction of that statute-based court to hear appeals based on claims of a miscarriage of justice. That point, of course, will not be the subject of the forthcoming appeal. The appeal will hinge, we may anticipate, on whether the accused had a fair trial. If he did not, the next question will be whether an unfair trial can be cured by the proviso that notwithstanding the unfairness there was no miscarriage of justice.

On the first, and threshold, issue, whether the accused received a fair trial, the Court of Appeal was less than forthright. It found that several errors had occurred, and that these could be regarded, "…prima facie at least, as having occasioned a miscarriage of justice" (para 43). The errors concerned the admission of evidence that should have been ruled inadmissible, and the failure of the trial judge to direct the jury on how evidence of what the murdered victims had said could be used by the jury. In effect, the appellant will have to persuade the Privy Council that the errors amounted to breaches of the right to a trial according to law by an unbiased jury; in other words, the right to a fair trial. The Court of Appeal was less than forthright because it did not say directly that these errors amounted to breach of the accused’s right to a fair trial. In calling the position a prima facie miscarriage of justice, the Court treated the concept of fair trial as being subject to whether there was a miscarriage of justice.

The second question, whether an unfair trial is necessarily a miscarriage of justice, can only be treated as open if one is prepared to acknowledge that, if a court thinks that the evidence against an accused is overwhelming, trial fairness does not matter. Most people, we venture to suppose, would baulk at reaching such a conclusion. A breach of the right to a fair trial should of itself amount to a miscarriage of justice.

The usual test for whether a miscarriage of justice has occurred is whether the accused has been wrongly denied a real possibility of an acquittal through an error or errors at trial. That requirement should not apply where the trial has been unfair to the accused.

The good and the bad

Although we have some reservations about the correctness of the Court of Appeal’s decision in R v Howse [2003] 3 NZLR 767; (2003) 20 CRNZ 826, it is reassuring to note a passage in the judgment that reinforces the primacy of justice over jurisdictional limitations:

"… The ultimate criterion on appeal is whether a miscarriage of justice has occurred. There cannot properly be any jurisdictional bar after trial preventing an accused from attempting to demonstrate such a miscarriage. Nor, for similar reasons, does it matter that evidence challenged on appeal was not challenged at trial. That does not jurisdictionally preclude this Court from addressing a point and giving effect to it if it has sufficient force." (para 15)

To suggest that the Court will not let itself be constrained by statutory limitations on its jurisdiction, if that constraint would lead to a miscarriage of justice, may be taking this dictum too far. However, one is reminded of the sensible approach of the House of Lords, which, when confronted with applying a statute that would have prevented a fair trial for the accused, held that the statute, although absolute in its terms, nevertheless was subject to an implied exception which the court could "read in": R v A [2002] 1 AC 45; [2001] 3 All ER 1, discussed in Mathias, "Criminal fairness in the House of Lords" [2002] NZLJ 435.

Who informed?

A recently reported case, although decided over a year ago, on 24 July 2003, illustrates how pressure of time can result in the Court of Appeal accepting unsoundly based submissions; R v De Bruin (2003) 20 CRNZ 782 (CA). The judgment was delivered the day after argument, because this was a pre-trial appeal and the trial was due to start within a short time.

The defence wanted to ask the police at trial who it was who had acted as a police informer, because grounds for attacking the credibility of that person may then have been apparent to the defence. It is only in rare cases that the identity of an informer will be a relevant matter, as for example where the informer may have planted evidence against the accused, or where the informer was in fact the offender and is seeking to pass blame on to the accused.Normally, if the police refuse to disclose information about an informer prior to trial, an application can be made by the defence for a court order for disclosure. Such an application will rely on the court’s inherent jurisdiction, in which case there is no right of appeal; it could not be made under s 344A of the Crimes Act 1961, which carries a right of appeal to the Court of Appeal, because until disclosure is made there is no evidence about which a ruling as to admissibility can be sought: R v Moore [2001] 2 NZLR 761; (2001) 18 CRNZ 519 (CA).

In De Bruin the Crown invited counsel for the defence to take the 344A approach, and in due course that was done. The invitation may have been disingenuous, because in the Court of Appeal the Crown changed its tack, arguing that:

"The essence of public interest immunity is that it protects from disclosure information which is otherwise relevant and admissible. The informer’s identity is admissible but protected."

Of course at the stage at which this application was made, the trial was imminent, and the question was whether evidence of the informer’s identity could be elicited at trial, not whether it should be disclosed to the defence prior to trial. The Crown was deflecting the Court from the issue of the admissibility of an answer that a question at trial would elicit, by suggesting there was no issue about admissibility for the court to rule on under s 344A..

The Crown’s submission was, essentially, an argument that the informer’s identity could not be the subject of a 344A application or an appeal pre-trial because the issue was not the admissibility of the evidence of the identity of the informer; rather, suggested the Crown, the issue was for the trial judge, and was whether public interest immunity should be declined. That is, it was a matter for the trial judge in the exercise of the inherent power to prevent an abuse of process.

Unfortunately, the Court accepted this submission. However, the submission was flawed. If the identity of the informer was "protected", it was inadmissible at trial; the real Crown submission was that although the informer’s identity was relevant, it should be ruled inadmissible. Indeed, in apparently conceding relevance (by accepting admissibility), the Crown could have been taken to be admitting that disclosure would assist the defence at trial.

If correct, the Crown’s submission would mean that no ruling about evidence that was sought to be excluded under the court’s inherent power to prevent an abuse of process would be a ruling about admissibility, because it would be a ruling about the discretionary exclusion of admissible evidence. In fact, such issues are routinely dealt with as admissibility issues and rulings are the subject of appeals. The usual construction of the legislation involves using the concept of admissibility in a broad sense: if the jury cannot learn of evidence, that is because it is "inadmissible", even though, technically, it is "admissible but excluded pursuant to the court’s inherent jurisdiction."

Analysing decisions into admissibility decisions, and decisions about the discretionary exclusion of admissible evidence, is useful in the context of determining the procedural rules concerning the operation of the discretion, but such analysis is not appropriate as an aid to statutory interpretation of s 344A.If the defence had used s 344A itself, applying for an order that questions it proposed to ask the appropriate witness (possibly the officer in charge of the case) would yield admissible evidence, the position would have been clear.

Another aspect of De Bruin is objectionable, although the Court can hardly be criticised for not anticipating the way the House of Lords would develop the law in R v H [2004] UKHL 3 (5 February 2004). In De Bruin it was presumed that the information could be withheld from the defence, subject to the defence satisfying the court that disclosure was necessary in the interests of trial fairness. In contrast, R v H held that full disclosure is to be presumed to be appropriate, and it is for the Crown to satisfy the court that information should be withheld; furthermore, if withholding of the evidence is permitted, the question then is whether the result would be a fair trial for the accused. If there would be unfairness to the accused, disclosure must be ordered even though the prosecution may then decide not to proceed with the case.

See also: Mathias, "Public interest immunity and fairness to the accused" [2004] NZLJ 301.