Evidence Bill (1)

The exercise of judgment is fundamental to the application of the rules of evidence. There are 4 areas in which judgment is critical:

 The decision whether to exercise the discretion to exclude evidence on public policy grounds. The focus here is on unreliable confessions, statements obtained by oppression, and other kinds of improperly obtained evidence.

 The decision whether to admit evidence that would otherwise be inadmissible, where its probative value outweighs the risk of illegitimate prejudice to the accused. Evidence of bad character is the prime example of evidence of this kind.

 Decisions that have to be made concerning the requirements of fairness. The choice is between excluding the evidence and admitting it with a warning to the jury about its dangers. Examples are evidence that is of questionable reliability, delayed complaints of sexual misconduct, evidence of children, identification evidence, and evidence that the accused has told lies.

 Decisions that have to be made with a view to avoiding a substantial miscarriage of justice. Usually an appellate court will be in a position to have a better perspective on this than will the trial judge, but nevertheless a trial judge will bear this requirement in mind throughout the trial. The need here is to avoid two kinds of errors: errors through which the accused improperly loses a chance of acquittal that should have been reasonably open, and errors which cause the jury to misapply the law to the facts.

I will consider, in separate blog entries, how each of these areas of judicial judgment are to operate under the Evidence Bill, which was introduced into Parliament this month. Today I begin with …

The Public Policy Decisions

The Bill sets out three rules: the unreliable statement rule (Clause 24), the oppression rule (cl 25) and the improperly obtained evidence rule (cl 26). The first two require the judge to evaluate the evidence on the relevant issue against the standard of either (cl 24(2)) the balance of probabilities, or (cl 25(2)) beyond reasonable doubt. The third, however, involves both judgment against a standard (the balance of probabilities: cl 26(2)(a)) and a balancing exercise to determine whether exclusion is proportionate to the impropriety: cl 26(2)(b).

24 Exclusion of unreliable statements

(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer a statement of a defendant if---
(a) the defendant or a co-defendant against whom the statement is offered raises, on the basis of an evidential foundation, the issue of the reliability of the statement and informs the Judge and the prosecution of the grounds for raising the issue; or

(b) the Judge raises the issue of the reliability of the statement and informs the prosecution of the grounds for raising the issue.

(2) The Judge must exclude the statement unless satisfied on the balance of probabilities---

(a) that the circumstances in which the statement was made were not likely to have adversely affected its reliability; or

(b) that the statement is true.

(3) However, subsection (2) does not have effect to exclude a statement made by a defendant if the statement is offered only as evidence of the physical, mental, or psychological condition of the defendant at the time the statement was made or as evidence of whether the statement was made.

(4) Without limiting the matters that a Judge may take into account for the purpose of applying subsection (2)(a), the Judge must, in each case, take into account any of the following matters that are relevant to the case:

(a) any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not); and

(b) any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not); and

(c) the nature of any questions put to the defendant and the manner and circumstances in which they were put; and

(d) the nature of any threat, promise, or representation made to the defendant or any other person.


25 Exclusion of statements influenced by oppression

(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer a statement of a defendant if---

(a) the defendant or a co-defendant against whom the statement is offered raises, on the basis of an evidential foundation, the issue of whether the statement was influenced by oppression and informs the Judge and the prosecution of the grounds for raising the issue; or

(b) the Judge raises the issue of whether the statement was influenced by oppression and informs the prosecution of the grounds for raising the issue.

(2) The Judge must exclude the statement unless satisfied beyond reasonable doubt that the statement was not influenced by oppression.

(3) For the purpose of applying this section, it is irrelevant whether or not the statement is true.

(4) Without limiting the matters that a Judge may take into account for the purpose of applying subsection (2), the Judge must, in each case, take into account any of the following matters that are relevant to the case:

(a) any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not); and

(b) any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not); and

(c) the nature of any questions put to the defendant and the manner and circumstances in which they were put; and

(d) the nature of any threat, promise, or representation made to the defendant or any other person.

(5) In this section, oppression means---

(a) oppressive, violent, inhuman, or degrading conduct towards, or treatment of, the defendant or another person; or

(b) a threat of conduct or treatment of that kind.


26 Improperly obtained evidence

(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if---

(a) the defendant or a co-defendant against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or

(b) the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.

(2) The Judge must---

(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and

(b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.

(3) For the purposes of subsection (2), the court may, among any other matters, have regard to the following:

(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:

(b) the nature of the impropriety, in particular, whether it was
deliberate, reckless, or done in bad faith:

(c) the nature and quality of the improperly obtained evidence, in
particular whether it is central to the case of the prosecution:

(d) the seriousness of the offence with which the defendant is charged:

(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:

(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:

(g) whether the impropriety was necessary to avoid apprehended physical danger to the police or others:

(h) whether there was any urgency in obtaining the improperly obtained evidence.

(4) The Judge must exclude any improperly obtained evidence if, in
accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.

(5) For the purposes of this section, evidence is improperly obtained if it is obtained---

(a) in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or

(b) in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or

(c) unfairly.


Of interest here are the standards of proof specified for each decision. Clause 24 uses the balance of probabilities. The Law Commission has changed its stance: in the Evidence Code (NZLC R 55 vol 2) the corresponding clause, 27(2), used beyond reasonable doubt as the standard for excluding unreliability. Of course here “unreliability” is a shorthand way of referring to the question whether the circumstances in which the statement was obtained were likely to affect its reliability. This is distinct from the question of the actual reliability of the statement itself. There is therefore not the logical objection that otherwise would lie in the way of the criminal standard of proof applying (the objection would have been that if the statement was, beyond reasonable doubt, reliable, the ultimate issue would have been decided by the judge). Bearing in mind the point that the issue is the circumstances in which the evidence was obtained, the focus is on the propriety of the methods used to obtain it. The Bill does not insist on proof to the standard of beyond reasonable doubt that those who obtained the statement acted properly.

The criminal standard of proof is applied to the issue of absence of oppression in cl 25. This properly reflects the common law’s abhorrence of “third degree” interrogations.

The balance of probabilities is applied in cl 26 as a threshold that has to be met before the balancing exercise is undertaken. Unless the defence satisfies the judge on the balance of probabilities that there was impropriety in the obtaining of the evidence, there is no progression to the balancing exercise, and the evidence is not excluded on that ground. Use of the balance of probabilities here is a reflection of the commonly held view that any factual pre-conditions that have to be established before evidence is admissible need only be proved on the balance of probabilities. Early formulations of the now obsolete prima facie exclusion rule, that applied to evidence obtained in breach of the Bill of Rights, used the same standard of proof on the issue of whether there had been a breach. The prima facie exclusion rule was replaced in R v Shaheed [2002] 2 NZLR 377 (CA) by the balancing exercise which is reflected in cl 26(2)(b) and (3) of the Bill. Under Shaheed the balancing exercise was not expressly contingent on the satisfaction of any particular standard of proof applicable to the issue of whether there had been a breach of rights. In contrast, the Privy Council, in Mohammed v The State [1999] 2 AC 111, 123-124, held that where there is an issue of the breach of rights, the prosecution bears the burden of excluding such breach to the standard of beyond reasonable doubt, and that where the prosecution fails to achieve that, the balancing exercise must be undertaken (except where the breach is of the right to a fair trial, in which case the evidence is automatically excluded without balancing).

In these contexts, the standard of proof is an expression of how willing the court will be to look at the issue the defence seeks to raise. Oppression is, under the scheme in the Bill, the most eagerly examined. Unreliability and impropriety do not attract as much interest. The appropriateness of those thresholds for judicial interest is a matter over which people may well differ.

Proof and prejudice

To what extent can trial fairness be sacrificed to the need to establish the truth? The answer depends on whether the case is criminal or civil.

In civil cases, if the parties will not reach a settlement, the court must reach a result. This may mean proceeding to decision notwithstanding some unfairness. In such a case, if unfairness cannot be avoided, at least the court will try to minimise it, and to balance it so that while the trial may not be equally fair to each side, it could be (albeit rather cynically) called equally unfair to each side. The dominating concern in civil cases is to establish the truth insofar as that can be done in compliance with the rules of evidence.

Judges do not, naturally enough, spell this out as plainly as I have just done. Recently, Lord Bingham has referred to truth and fairness, in relation to civil trials, in O’Brien v Chief Constable of South Wales Police [2005] UKHL 26 (28 April 2005), at para 6:

"…In deciding whether evidence in a given case should be admitted the judge's overriding purpose will be to promote the ends of justice. But the judge must always bear in mind that justice requires not only that the right answer be given but also that it be achieved by a trial process which is fair to all parties."

This does not tell us whether impossibility of fairness to all parties prevents the right answer being found. Be that as it may, we are concerned here with criminal cases, and in criminal law, as it is applied in the common law jurisdictions, courts endeavour to balance competing interests.

The criminal law has multiple functions, and they include meeting official misconduct by the exclusion of improperly obtained evidence. In extreme cases a stay of proceedings may be ordered on grounds of public policy. Those grounds are not directly connected to the fairness of the trial. Another ground for excluding relevant evidence is that its probative value is exceeded by its illegitimately prejudicial effect. This latter ground is particularly problematic.

Its application may result in evidence that is highly probative being admitted notwithstanding the significant risk it brings of illegitimate prejudice. See, for a statement of the law, Lord Phillips in para 32 of O’Brien. Sections 101 to 106 of the Criminal Justice Act 2003[UK] now govern this discretion in the United Kingdom.

In criminal cases, the accused’s right to a fair trial is absolute, primary, and essential. This means that reasonable risks of illegitimate prejudice must be avoided. The probative value/prejudicial effect balancing decision needs to be "re-understood" in the light of developments in human rights law.

This crucial development in the law of criminal evidence is something I have written on elsewhere, and readers with robust stamina may wish to see: Mathias, "The Duty to Prevent an Abuse of Process by Staying Criminal Proceedings" in Robertson (ed) Essays on Criminal Law: A Tribute to Professor Gerald Orchard (Brookers, 2004), and Mathias, "Probative value, illegitimate prejudice and the accused’s right to a fair trial" (2005) 29 Crim LJ 8.

Common law rules and the proposed Evidence Code

The Supreme Court of Canada last week gave us a clue as to what approach to the admissibility of hearsay evidence in cases of conspiracy or pre-concert might be taken if the New Zealand Law Commission’s proposed Evidence Code is enacted: R v Mapara [2005] SCC 23 (27 April 2005).

Under the proposed Code, hearsay evidence is admissible in criminal proceedings if the circumstances in which it was obtained provide reasonable assurance that it is reliable: cl 19, and if procedural preliminaries to provide for the hearing of any admissibility challenge have been met.

The Code does not provide detail on the reliability criteria, so the question arises as to what will be the status under the Code of the common law rules that have developed to deal with the admissibility of hearsay statements of alleged co-conspirators, or of alleged participants in a joint enterprise (accomplices).

In Mapara, the Supreme Court of Canada held, 7 to 2, that the common law rules do provide sufficient assurance of reliability for there to be no need for a separate reliability decision (para 27), except in rare cases when the accused can point to evidence raising serious and real concerns as to reliability (para 30).

The relevant rules in Canada are similar to those that currently apply in New Zealand: there are three matters that have to be considered. The Canadian formulation of these, set out in R. v. Carter [1982] 1 S.C.R. 938, requires first, proof beyond reasonable doubt that there was a conspiracy or common design of the kind alleged; second, proof on the balance of probabilities and on non-hearsay evidence that the accused was a member of that conspiracy or common design; third, that the hearsay statement was made in furtherance of the conspiracy or common design.

It must be acknowledged that in New Zealand these rules have yet to achieve such clarity. There is a tendency to merge the first and second issues into a requirement that the accused be shown to have shared in a common purpose: eg R v Humphries [1982] 1 NZLR 353 (CA). Further, there is some wavering as to the standard of proof required for the second matter, some cases indicate that "reasonable evidence" is sufficient, while others require proof on the balance of probabilities. For the "reasonable evidence" requirement, see R v Karpavicius 12/9/00, Anderson J, HC Auckland T001037, para 17. For the balance of probabilities formulation see R v M 2/5/01, William Young J, HC Christchurch T14/01, at [51], although the Judge doubted that this was any more exacting, from the Crown’s point of view, than the unadorned reasonable evidence test, and on appeal the Court of Appeal took the same approach: R v M 11/7/01, CA135/01.

Given that the common law rules are aimed at preventing the admission of unreliable evidence, and that under the proposed Code the criterion for admission of hearsay evidence will be its reliability, we must ask to what extent will the existing rules survive the enactment of the Code. This is a general question, not simply confined to conspiracy or pre-concert cases.

A slippery slope

What is a reasonable doubt? Judges and juries may disagree over whether the prosecution has established beyond reasonable doubt that a confession was obtained voluntarily.

If the judge thinks the prosecution has proved that the confession was voluntary, then it is admissible. The jury (or, perhaps, any individual juror) may, however, not think the prosecution has proved the voluntariness of the confession beyond reasonable doubt. Where that is so, the jury (or, perhaps, the juror) must ignore the confession. This was established in R v Mushtaq [2005] UKHL 22 (21 April 2005), in a decision departing from the law as it had been understood to be (Chan Wei Keung v R [1967] 2 AC 160, and disagreeing with Basto v R (1954) 91 CLR 628 HCA).

The Law Lords did not consider the difficulties suggested by the phrases I have put in brackets: does the jury act as a whole in determining the voluntariness of the confession, so that it is only voluntary if all jurors agree that the prosecution has proved that beyond reasonable doubt? Or, is it a matter for each juror individually to determine when assessing what evidence he accepts and what he rejects?

Normally, jurors are told to act as individual fact-finders; the only requirement for unanimity attaches to the verdict they reach. This suggests that some jurors might rely on a confession as evidence of guilt, because they are satisfied that it was made voluntarily and is in other respects reliable, whereas other jurors may have to reach a conclusion without using the confession if they have a reasonable doubt about its having been voluntary.

One would have thought that it is correct to regard the jurors as individuals on all matters except the verdict, although the Supreme Court of New Zealand has, without directly addressing the point, apparently regarded the jurors as having to be unanimous on whether the basis for a statutory presumption to operate has been proved: Siloata v R 16/12/04, SC CRI 8/2004.

Apart from this uncertainty, which will probably be resolved in favour of the jurors-as-individuals approach, Mushtaq carries the theoretical danger that weak judges will tend to ignore their own doubts about the voluntariness of confessions, knowing that the jurors will have to make up their own minds about that.

The rationale of Mushtaq is based on the right to a fair trial, and the associated right against self-incrimination, and the role of the jurors as the ultimate arbiters of fact (per Lord Rodger at para 46, 49, 54, Lords Steyn, and Phillips agreeing; and per Lord Carswell at para 73; Lord Hutton dissented on the law, holding that the traditional distinction between the functions of judge and jury, admissibility and weight, applied). Given that potentially broad base, one might wonder whether the admissibility consequences of other forms of official misconduct, for example wrongful search procedures, are going to be left to juries. Why should the defence be prevented, after an unsuccessful voir dire on the issue of unreasonability of search and the application of Shaheed balancing, from raising the same matters with the jury as the basis for a submission that they should ignore the evidence that the judge has ruled admissible?

To prevent that, emphasis would have to be given to the special responsibility of the judiciary to oversee the propriety of police conduct and to prevent abuse of process, but the majority in Mushtaq did not rely on that point. The 4 to 1 rejection of Lord Hutton’s approach counts against this view. The better argument is that Mushtaq is based in trial fairness, whereas the public policy exclusion of improperly obtained evidence does not necessarily involve trial fairness considerations, so the Judge has sole jurisdiction over the admissibility of that evidence. However, to argue that way is to concede (dangerously) that the jury should have jurisdiction to ignore evidence in the interests of what it considers to be trial fairness. The law is poised at the top of a slippery slope.

Turpitudinous driving

Motor manslaughter must be distinguished from causing death by reckless driving, causing death by dangerous driving, and causing death by careless driving. The Crimes Act 1961[NZ], s 150A(2) applies, inter alia, to motor manslaughter charges, and it requires "a major departure from the standard of care expected of a reasonable [driver]".

While manslaughter requires that death be caused by an unlawful act, mere negligent driving, or dangerous driving, is of itself an insufficiently unlawful act to constitute manslaughter because those are separate offences. In R v Powell [2002] 1 NZLR 666 (CA) it was held that that where the unlawful act relied on as the basis of a manslaughter charge involves carelessness or negligence, the same high degree of negligence is required as for breaches of the legal duties to which s 150A expressly applies. See also R v Fenton [2003] 3 NZLR 439; (2003) 20 CRNZ 76 (CA).

What amounts to a major departure from the standard of care expected of a reasonable driver, so as to be more than dangerous driving causing death, is a matter for the jury to decide, and it is difficult to formulate general guidelines. The Privy Council has considered this in Brown v The Queen (Jamaica) [2005] UKPC 18 (13 April 2005). There, it was held that the offence of motor manslaughter must be defined in the context of similar offences such as, in that case, reckless driving causing death. This case is applicable to the New Zealand context, where there are offences of reckless, dangerous and careless driving. At para 25 of Brown the Board held:

"There must be proof of an extra ingredient, over and above the elements proof of which will ground a charge of causing death by reckless driving, but in their Lordships' opinion juries have to be directed on the meaning of recklessness if they are to give proper consideration to a charge of motor manslaughter."

An appropriate direction to the jury would need to be framed around the following considerations, para 30:

"(a) Manslaughter in this context requires, first, proof of recklessness in the driving of a motor vehicle, plus an extra element of turpitude. That extra element is that the risk of death being caused by the manner of the defendant's driving must in fact be very high.
(b) The jury should be told specifically that it is open to them to convict the defendant of causing death by reckless driving if they are not satisfied that the risk of death being caused was sufficiently high.
(c) Proof of reckless driving requires the jury to be satisfied
(i) that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property;
(ii) that in driving in that manner the defendant had recognised that there was some risk of causing such injury or damage and had nevertheless gone on to take the risk.
(d) It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard which from their experience and observation would be observed by the ordinary and prudent motorist.
(e) If satisfied that an obvious and serious risk was created by the manner of the defendant's driving, the jury must, in order to reach a finding of recklessness, find that he appreciated the existence of the risk; but they are entitled to infer that he was in that state of mind, though regard must be given to any explanation he gives as to his state of mind which displaces the inference."

In New Zealand law, reckless driving involves foresight of dangerous consequences that could well happen combined with an intention to continue a course of conduct even though those consequences are a clear risk: R v Harney [1987] 2 NZLR 576 (CA). This might be compared with the law of England and Wales, which is currently that (Brown, para 26) a person is reckless with respect to "(i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk": R v G [2004] 1 AC 1034. In New Zealand, the position is summarised in Brookers Law of Transportation as:

"… there are three elements involved in proving reckless driving:
(a) The driver fell below the standard of care expected of a reasonable and competent driver.
(b) The resulting situation was objectively dangerous.
(c) The driver was aware of the potential danger and continued to act despite knowledge of the possible consequences."

Reckless driving is thus dangerous driving with an added element of foresight. Dangerous driving is judged objectively, but includes a requirement of failure to meet the standard of care required of a reasonable and competent driver.

Brown should be of assistance in motor manslaughter cases in New Zealand. Whether a conviction for manslaughter is appropriate in respect of a death arising from reckless driving will be a matter for the jury to determine according to whether the risk of death, in the circumstances known to the accused, was, judged objectively, "very high". What the accused knew includes what he was indifferent to, and what he closed his mind to: R v Reid [1992] 1 WLR 793 (HL) per Lord Goff at 810 – 811.

Another aspect of Brown is the treatment of three points which were submitted to have given rise to substantial miscarriages of justice. These were: unfairness in the judge’s summing up; failure in the summing up to distinguish the functions of judge and jury; failure of defence counsel to rely on the accused’s good character.

The first point was considered in the context of the summing up as a whole, and it was held that there was no unfairness. There was thus no miscarriage of justice, and a fortiori no "substantial" miscarriage of justice, and the proviso did not need to be resorted to.

The failure to distinguish functions of judge and jury was made out as a point, but again, read in the overall context the Board was able to conclude ("not without hesitation": para 34) that the jury would have been aware of its proper function. The judge’s misdirection was a miscarriage of justice, but it was not substantial, and the proviso was applied.

The good character point was a "regrettable omission" by counsel (para 38), but again, on balance, the proviso was applied because the miscarriage of justice was, in the particular circumstances of the case, not substantial.

Words for the living, money for the dead

Remedies available to prisoners who have been denied the right to a fair hearing, or denied the right to legal representation, on charges relating to prison discipline, may be quite modest. In Whitfield and Others v. the United Kingdom [2005] ECHR 234, 12 April 2005, the European Court of Human Rights found in favour of 3 prisoners, one of whom was now dead, and held that for the two who were still alive, the findings of the Court were just satisfaction, and the deceased prisoner’s estate was awarded E3,000 for non-pecuniary damage. Each was awarded E2,500 for costs and expenses.

Errors at trial

Complaints about the quality of their legal representation are sometimes made by people who are convicted at trial. These complaints rarely succeed in achieving, on appeal, the grant of a new trial. Occasionally, however, counsel who acted at trial may provide the appellate court with sufficient information to support a conclusion that there had been a significant error at trial. This occurred in relation to one of the appeals in Teeluck v The State (Trinidad and Tobago) [2005] UKPC 14 (23 March 2005).

Interestingly, the focus is not on the extent to which the quality of the legal representation at trial fell below professional standards, although the court may well (and here, did) comment on that. Rather, the focus is on the impact which the error(s) of counsel had on the trial and verdict (para 39). On appeal, the issue is whether the verdict of a reasonable jury would inevitably have been the same if the error(s) had not occurred (para 40).

This is not to say that this is always the test to determine when mistakes have deprived the accused of a fair trial. Loss of a fair chance of an acquittal is indeed a sufficient, but not a necessary, condition for a finding that the trial was unfair. As the Privy Council held in Randall v R [2002] UKPC 19 (16 April 2002), para 28:

"There will come a point where the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial."

Teeluck concerns the consequence of the absence of the mandatory direction on good character evidence. Once good character has been raised by the defence, the direction must be given, but a mere assertion of absence of criminal convictions is of itself insufficient to raise the issue. New Zealand law is to the same effect: R v Falealili [1996] 3 NZLR 664 (CA).

Remedies for rights breaches

The idea that breach of the Bill of Rights may attract a remedy, usually called compensation, against the Crown and distinct from tortious liability for damages, has received a boost from the Privy Council: Attorney-General of Trinidad and Tobago v Ramanoop [2005] UKPC 15 (23 March 2005). The Law Lords referred to decisions of the New Zealand Court of Appeal, finding that dicta of Cooke P in Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667, 678, and Thomas J in Dunlea v Attorney-General [2000] 3 NZLR 136, 152 were of particular assistance.

There is a difference between the Constitution of Trinidad and Tobago, and the New Zealand Bill of Rights Act 1990, in that the former expressly provides that a person may apply by way of originating motion to the High Court for redress for breach of rights, without prejudice to any other action in respect of the same matter which is lawfully available. No equivalent exists in the latter. However, the NZBORA does not exclude a constitutional, as distinct from a private law, remedy. The question becomes one of whether the court can create a constitutional remedy for breach of constitutionally protected rights.

Professor Jim Evans has doubted the correctness of Baigent’s Case, in which a constitutional remedy was created: "What Does it Mean to Say Someone Has a Legal Right?" (1998) 9 Otago Law Review 301. In Brown v Attorney-General (discussed in these blogs, March 6, 2005) a majority of the Court of Appeal doubted, obiter, and without citing Professor Evans’s article, whether constitutional remedies should be available for breach of the right to a fair trial. The question can therefore be said still to be open.

The judgment of Thomas J, endorsed by the Privy Council, includes the following observations:

[55] Baigent’s Case established a new cause of action and remedy in compensation for a breach of the Bill of Rights. It applies, not only where there is no existing cause of action, but also where the existing cause of action and consequential remedy is inadequate. The focus is on the inadequacy as well as the availability of the cause of action. Consequently, to seek to restrict the remedy provided by Baigent’s Case to situations where there is no existing common law cause of action is not in accord with the ratio of the majority decision in that case. Furthermore, such claimed exclusivity runs counter to the fact that a number of causes of action deriving from statute or common law can and do exist concurrently and frequently overlap.

[56] Nor is the attempted exclusion particularly logical in that the cause of action under the Bill of Rights does not duplicate the common law cause of action. As I emphasise below, the common law cause of action is a private remedy to redress a private wrong. The cause of action under the Bill of Rights is a public law remedy based on a right in the nature of a public right. The Crown’s liability is not vicarious as it would be in tort. Its liability arises directly from the fact that in affirming fundamental rights in the Bill of Rights, the State has undertaken a constitutional obligation to respect, protect and vindicate those rights. Why, then, when the State has failed in that obligation should that essentially different public law remedy lie dormant if there is an equivalent common law private law civil action, and only arise from its torpor if and when there is no such cause of action? What is there in this public law remedy which would restrict it to such a back-up role? How can it be said that the elements of this public law remedy will only exist when the plaintiff has no common law remedy but not when he or she has such a remedy? Are we to pretend that the public law factors in respect of a breach of the Bill of Rights only arise where by fortuitous happenstance there is no equivalent private law remedy? Is there some policy consideration which is yet to be disclosed?

[57] I prefer to accept that Baigent’s Case established a new remedy for a violation of the Bill of Rights and that the key question which arises is not whether a remedy is available for that violation, but whether the existing private law remedies are adequate to provide an effective remedy for such a violation. Contrary to the Crown’s submission, I take the view that existing private law remedies are inadequate to vindicate those rights, and I turn to the critical need for such vindication.
…
[64] Compensation will not be effective to vindicate and affirm the right which has been violated, however, unless the quantum of the award recognises that a fundamental right possessed by the plaintiff has been denied. It follows that the award cannot be simply equated with damages for "equivalent" breaches of common law torts such as wrongful arrest, false imprisonment, or the like. The focus of the Court is wider and must embrace the impact of the State’s violation of the citizen’s fundamental rights."

These observations are similar to those of the Privy Council on the topic of the ingredients of the constitutional remedy (para 19) in Ramanoop.

The critical question at the present stage is whether the court should "recognise" the existence of a constitutional remedy, or whether the court should conclude that the matter is one for the legislature, and that until Parliament creates a constitutional remedy there is none. Why, however, is this an issue, after the Court of Appeal’s decision in Baigent’s Case? The CA has traditionally been regarded as normally being bound by its own decisions. Exceptions exist, where the law has been shown to have been decided wrongly, or where changes in the needs of society make change in the law desirable. Has an error in Baigent’s Case been demonstrated? Have social needs changed? The new circumstance is the existence of the Supreme Court, which last year took over the role of the less accessible Privy Council. One might surmise that the CA is willing to revise its earlier decisions in the interests of getting issues before the SC for final determination.

Class A drug supply sentencing levels

With a sideways look at statutory indications in Australia, a Divisional bench of the Court of Appeal has given guidance on the approach to sentencing for class A drug dealing offences: R v Arthur 17/3/05, CA382/04.

For reasons of etiquette as much as of law, the Court refrained from calling its decision a "guideline" or "tariff" judgment, as the bench included only one permanent member of the Court of Appeal. Left for clarification is whether this guidance applies to class A drug offences other than those involving methamphetamine, especially the hallucinogenic drugs.

General points notable in Arthur are:

• The starting point for a sentence is determined, before taking into account matters of aggravation (such as relevant previous convictions) and mitigation (such as guilty plea).
• The sentencing principles in the Sentencing Act 2002 take effect once the starting point is set, unless for truly exceptional reasons a custodial sentence is not appropriate.
• The starting points set out in Arthur apply to offences of supply. Importing or manufacturing may warrant higher levels of sentence.
• The quantity of drug involved in the offending, although important, is not the only factor to consider, therefore there may be some overlap between the ranges of the starting points.

The ranges of appropriate starting points, based on those applicable in New South Wales, are:

• Low level supply, up to 5 grams, from 2 to 4 years’ imprisonment
• Commercial quantity supply, between 5 and 250 grams, from 3 to 9 years’ imprisonment
• Large commercial quantity supply, in excess of 250 grams, upwards of 8 years’ imprisonment

The Court noted that, for the low level offending, sentence ranges were similar to those that have recently been applied in the High Court.

We can be pleased that the Court refrained from repeating one of the hackneyed tautologies of deterrent sentencing: that in addition to setting the starting points high in the interests of general deterrence, the court places little importance on the particular circumstances of the individual offender. This is a tautology because setting sentencing levels by the requirements of general deterrence itself involves ignoring the particular circumstances of individual offenders; there is no need to ignore them twice, for on the second occasion they may be ignored at the expense of justice. That is particularly important because, even under a regimen of general deterrence, some movement back from the higher levels of sentence may be required in the interests of justice to acknowledge the particular circumstances of an individual offender.

Update: Subsequently, in R v Fatu CA415/04, 18/11/05, guidelines for methamphetamine dealing (manufacturing, importing, supplying) were set down, based on the Arthur levels but with increases to reflect the greater seriousness of importing and manufacturing as compared with supplying. The Court used the quantity of drug, rather than its value, as the basic yardstick, and made no reference to ignoring the personal circumstances of the offender. The starting points set down were based on the seriousness of the offending, and recognition could then be given to the individual aggravating and mitigating circumstances. It is still not clear how broadly the mitigating circumstances personal to the offender can be construed under Fatu; traditionally these have been presence or absence of previous convictions and an early plea of guilty signifying remorse.

Duress of circumstances?

In view of R v Hasan [2005] UKHL 22 (17 March 2005) we may doubt whether there is any room for the common law development of a defence of "duress of circumstances" as a defence separate from coercion (s 24 Crimes Act 1961[NZ]).

Lord Bingham, delivering the leading opinion on the issue of duress – the common law version of coercion – observed that duress is akin to the defence of necessity, which applies to threats which are not of human origin but rather consist in the force of extraneous circumstances (para 19). Given that non-human perils are in the domain of necessity (a common law defence in New Zealand), and threats by humans are in the domain of duress (a common law defence in the UK), duress is only a common law defence in New Zealand if it is not covered by the statutory defence of compulsion. Is, therefore, the common law defence of duress wider than the statutory defence of compulsion?

Hasan suggests that it is not. Lord Bingham tightened the criteria for the operation of duress (para 22, for reasons he set out in paras 18 – 20), and indicated that circumstances falling short of being a defence might appropriately be considered as mitigating sentence.

The issues on duress in Hasan were decided by holding that the defence is not available if there was a reasonable (not merely a subjective) risk of exposure to threats, and that such threats were not limited to those directed at the commission of the type of crime that was actually committed. A reasonably appreciable risk of being exposed to threats directed at the commission of an offence, as a result of the defendant’s having associated with the person who makes the threat, would thus make the defence unavailable. The other narrow limits to the defence of duress were set out in para 21. The position of undercover officers was deliberately left for future determination, and Lady Hale would have made some allowance for defendants in battered spouse relationships.

In Kapi v MOT (1991) 8 CRNZ 49 (CA), at 57, the Court said, of the possible defence which it referred to as "necessity":

"We consider on the authorities cited to us that a defence of necessity, if available in New Zealand, requires at least a belief formed on reasonable grounds of imminent peril of death or serious injury. Breach of the law then is excused only where there is no realistic choice but to act in that way. Even then the response can be excused only where it is proportionate to the peril."

To the extent that the threats in Kapi were of human origin, the Court should be taken to be referring to the mooted common law defence of duress of circumstances, as necessity is limited to non-human threats. But further, if the common law defence (called duress, but, as is implicit in Hasan, synonymously duress of circumstances) is as constrained as indicated in Hasan, then the relevant defence in Kapi was the statutory defence of coercion.

In Police v Kawiti [2000] 1 NZLR 117; (1999) 17 CRNZ 88, Salmon J, the defence is properly called necessity, not duress of circumstances.

The statutory elements of coercion can, on facts which substantiate lack of moral fault, be interpreted liberally. In R v Jones [2004] EWCA Crim 1981, at para 51, it was pointed out that the requirement of immediacy of threatened serious harm would not be so restrictive so as to exclude, for example, harm that was inevitable albeit not immediate.

Negligence immunity in Australia

The High Court of Australia has decided the issue of counsel’s liability for negligence differently from the New Zealand Court of Appeal (see last blog entry): D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 (10 March 2005). The majority of 6 judges (only Kirby J dissented) held that the fundamental justification for a barrister’s immunity is the need for finality in judicial determinations.

The joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ, at para 84, highlighted the need to provide the best and safest system of determination that is compatible with human frailty. (Contrast, the standard of excellence referred to by Hammond J in Lei v Chamberlains.) McHugh J, concurring, stressed the professional consequences of misconduct and the duties owed by the barrister to the court. Callinan J, also concurring, noted that the common law tends to change incrementally, and it would be undesirable to make barristers liable for not pursuing apparently weak points on appeal just because of the possibility of a change in the law. Further, it would be unfair to continue protecting judicial error if barristers’ protection were to go. Kirby J dissented, fundamentally because other jurisdictions did not consider they needed to retain the immunity.

Plainly, when the New Zealand Supreme Court considers the matter, the desirability of our law being consistent with that of Australia will be an influential consideration.

Questions about negligence

The question whether counsel can be liable for negligence arising from conduct of criminal proceedings has deliberately, and unanimously, been left undecided in Lai v Chamberlains 8/3/05, CA15/03. Anderson P noted, para 39, the view of the House of Lords that, were such an action to be allowed, it would first require a successful appeal against conviction. The plurality in Lai at para 124 left aside the matter of liability for negligence arising from criminal proceedings, as did Hammond J, in a judgment expressing the majority view, at para 191.

Not every error by counsel at a criminal trial gives rise to a miscarriage of justice. For example, decisions may be made for tactical reasons to avoid taking every possible objection to the admissibility of evidence. This was recognised by the High Court of Australia in Ali v R [2005] HCA 8 (8 March 2005), per Gleeson CJ at para 9, Hayne J at 23, and Callinan and Heydon JJ at 98 and 99. On the other hand, while it may be difficult to point to a single critical error by counsel, an accumulation of circumstances may result in there being a miscarriage of justice, as occurred in R v Sharma (2003) 20 CRNZ 491 (CA). Would conduct of the kind that occurred in Sharma be sufficient to sustain an action for negligence?

As Hammond J said in Lai, at 181, the law should support a standard of excellence, although this was offered as a reason for applying negligence liability, not as a reason for holding counsel liable for anything less than excellence. In Sharma, such grounds for concern as there were, under this head, may have arisen from failure of senior defence counsel’s self-control due to the stress of the trial. Included in the causes of that stress may have been a personality conflict with the client during the trial. If there was negligence by counsel, was there contributory negligence by the client? Furthermore, in Sharma the overturning of the convictions was partly caused by judicial error in receiving verdicts before questions from the jury had been answered (or without establishing that the jury no longer required such answers). To what extent should that error reduce any liability for negligence that might otherwise have attached to counsel?

Equality of arms

The New Zealand Court of Appeal, in Brown v Attorney-General 3/3/05, CA39/03, has, without having to decide the question, touched upon the topic of whether compensation is an appropriate remedy where there has been a breach of the right to a fair trial. This topic has recently received attention in these blogs (Monday, 21 February 2005, see the discussion of the House of Lords decision in R v Secretary of State for the Home Department, ex parte Greenfield [2005] UKHL 14 (16 February 2005)).

Five judges heard the appeal in Brown. All agreed in the result, four judges jointly, and William Young J delivered a separate judgment in which he preferred to decide the matter of the availability of compensation rather than, as the other judges had, leave it open. The appeal from the refusal of compensation failed.

The joint judgment, delivered by Chambers J, held that the State (in the form of a District Legal Aid Sub-committee, referred to as the DLSS) did not breach Mr Brown’s right to a fair trial. This was so because the decision it reached, not to cover the costs of a DNA analysis that the defence sought to have conducted in Australia, was reasonable on the information before the DLSS at the time the decision was made.

Two concerns might be entertained about this approach. First, was the DLSS obliged to give reasons for its refusal to allow the costs? It is not clear from the judgment whether the DLSS did seek additional information or advise counsel for the defendant of what might have strengthened the claim. Much of the joint judgment is concerned with the inadequacy of the information placed before the DLSS by counsel for Mr Brown. A failure to give reasons would, of course, only be significant if it would have led to a different decision. This brings us to the second concern.

Were the results of the tests that were sought to be conducted likely to be of significance for the defence? The joint judgment (para 64, 85, 90, 98) assumes that the results would not have been significant. Essentially, the defence sought to establish that the accused’s DNA was not present on a shirt worn by a robber, and that therefore he was not the robber. The Crown accepted that there was no DNA which could be proved to have come from the accused on the shirt. The joint judgment concluded that it was unlikely that further testing would have produced any results, let alone decisive results (para 85, points (b) and (c)), saying that the absence of Mr Brown’s DNA took the matter nowhere.

Well, one might respectfully wonder about that. If the most sensitive testing then available could not find evidence that should be there if Mr Brown had worn the shirt, that fact would have significant probative value in favour of the defence. This can be seen from an application of Bayes’ Theorem. The critical point is, how likely is it that the robber’s DNA would have been detectable on the shirt? Scientists have an obligation to consider matters such as that (see Robertson and Vignaux, Interpreting Evidence, 1995, pp 76 – 77). If the robber’s DNA should have been there, and especially if DNA was there but it wasn’t Mr Brown’s, then the likelihood of Mr Brown being the robber was diminished. [Update: in dismissing the application for leave to appeal this decision, Brown v Attorney-General [2005] NZSC 59, 29 August 2005, the Supreme Court noted that the evidence was that a significant proportion of the population do not secrete DNA in their sweat. The SC held that there was no evidence that the absence of the tests that the defence had requested caused any loss to the appellant.]

Applying Bayes’ Theorem involves comparing the probability of obtaining the evidence (that Mr Brown’s DNA was not detected) assuming that he was guilty, to the probability of obtaining the same evidence given that he was not guilty. The ratio of these probabilities (the former divided by the latter) is called the likelihood ratio. If the accused was not guilty, then the probability of the "none of his DNA" result would be 1. The denominator of the likelihood ratio would be 1. The numerator is therefore the critical thing: what is the probability that the robber would not leave detectable DNA on the shirt? That is the critical point on which the DLSS should have been informed (or, on which it should have sought information).

If there was a chance of, say, one in ten that the robber could have worn the shirt without leaving DNA on it, then the likelihood ratio would affect the likelihood of guilt compared to the likelihood of innocence, by a tenth. That, one would have thought, should have been sufficient to raise a reasonable doubt and thus be grounds for a verdict of not guilty.

A weakness of the joint judgment in Brown is, therefore, its emphasis on the results of the proposed tests being unlikely to assist the defence.

This is not to say that the Court was wrong to reject compensation as a remedy for breach of the right to a fair trial. While the joint judgment leaves the point open, it does acknowledge the matters referred to by William Young J at paras 126 to 142 of his judgment. Even if there had been a breach of his right to a fair trial, Mr Brown’s remedy was through the appeal process (obtaining a quashing of his conviction and, perhaps, a retrial). The most persuasive reason for this conclusion is the difficulty in distinguishing cases of ordinary error at trial, cured by appeal, from errors that merit the constitutional remedy of compensation from the Crown. After all, there will be overlaps. An erroneous direction to the jury on the applicable law, curable by appeal, deprives the accused of the right to a fair trial. And misconduct by agents of the State is normally remedied by exclusion of evidence or stay of proceedings, not by compensation. There is therefore a question over the future of Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667 (CA), at least to the extent that it might have been thought to be applicable, beyond its facts, to cases where the rights that are breached belong to a person who is, consequently, charged with an offence.

Two aspects of William Young J’s agreement on the issue of breach of rights leave cause for concern. At para 124 he assumes that the accused would not have himself paid the costs of the tests, had he had the funds to do so. A person of even ordinary financial means would probably think anything around $10,000 (the tests here were likely to have cost much less) to be a wise investment, in view of the prospect of 9 years’ imprisonment (the sentence Mr Brown received). Secondly, William Young J says (para 125) that the appellant’s approach to the equality of arms argument was selective: results favourable to the prosecution should have been disclosable if the tests had been allowed. This, with respect, is a dangerous suggestion. If the tests had been privately funded, any results unfavourable to the defence would certainly not have been disclosed to the Crown, so why should an impecunious defendant be in any different position just because the State is funding his defence?

The utility of rights

Sometimes the rather constrained interpretation that courts give of the rights of a suspect lead us to suspect that judges tend to forget that rights are given in the overall interests of society. Rights belong to everyone, and they have a social utility. They can provide useful opportunities to check that power is being correctly exercised, thereby minimizing official error.

An example of constrained interpretation of rights is the holding in R v Mallinson [1993] 1 NZLR 528; (1992) 8 CRNZ 707 (CA) that the police do not have to facilitate the exercise of the suspect’s right to legal advice right unless the suspect indicates a wish to exercise it. On that approach, the right only covers informing the suspect of the existence of the right, which, indeed, is following the letter of the New Zealand Bill of Rights Act 1990. There is, according to Mallinson, no need to tell the suspect how the right might effectively be exercised; in particular, there is no need to tell the suspect about the existence of a list of lawyers who make themselves available free of charge for the purpose of giving advice, and of private access to a telephone.

Fortunately, there has been a widening of perspective since then. Mallinson was decided by five judges, but a 3 judge bench in R v Kai Ji [2004] 1 NZLR 59 (CA) held that telling the suspect of the availability of free legal advice was integral to the existence of the right to be informed of the right to consult a lawyer under s 23(1)(b) of the Bill of Rights. This change in approach reflected the introduction of the statutory Police Detention Legal Assistance scheme in the Legal Services Act 2000, which established in statutory form a practice that had existed when Mallinson was decided.

The Privy Council has extended the right to legal advice to those who are arrested, not on suspicion of committing an offence, but for non-payment of fines: Ramsarran v Attorney-General of Trinidad and Tobago [2005] UKPC 8 (28 February 2005). The social utility of the right is apparent (para 11):

"In their Lordships' view the fundamental reason why section 5(2)(c) covers cases of non-payment of fines is that it is necessary to ensure that persons incorrectly arrested or detained for reasons other than suspicion of having committed a criminal offence have an effective and practical means of securing their release as soon as possible. That may be illustrated by the case before the Board. If the appellant had been informed of his right to legal advice and had been given the necessary facility to contact a lawyer, the lawyer could have lent his weight to a demand that the records be checked forthwith for payment of the fine, and could have made a speedy habeas corpus application if this did not secure the appellant's early release. One would have expected that a lawyer's intervention would have effected the appellant's release long before three days had elapsed. One may readily envisage other cases in which access to legal advice would be of material assistance to a person arrested and detained. In a case of mistaken identity he may be arrested for non-payment of a fine imposed upon another person. It is possible to envisage other occasions apart from pretrial situations on which unjustified arrests might take place. In none of them could it be said that the requirement of access to legal advice would be unnecessary, let alone "farcical", as Sharma JA suggested. On the contrary, it seems to their Lordships that it would constitute a very real help in time of trouble."

Bias and expertise

At common law the absence of bias includes the absence of the appearance of bias. Consequently, a tribunal may be impugned for bias without actual bias needing to be proved, and its decision quashed without any aspersion being cast.

This happened in R v Secretary of State for the Home Department, ex parte Al-Hasan [2005] UKHL 13 (16 February 2005). Proceedings were quashed because the common law test was satisfied (para 37); in summary, this amounts to asking whether a fair-minded observer would think there was a real possibility that the tribunal had been predisposed, that it lacked impartiality, that it may have been improperly influenced. An honest doubt about this, entertained by the fair-minded observer, is sufficient, even if the doubt is unfounded.

In that case a prison official (deputy governor) presided over a disciplinary hearing in which the validity of an order promulgated by the prison governor was challenged. When the order had been formulated, the official had been present and had implicitly agreed to it. It was therefore unlikely that he would hold that the order was invalid. The House of Lords stressed that there was no suggestion that in presiding over the hearing he had intentionally acted wrongly.

Baroness Hale, para 16, concluded

"…Giving the order and deciding upon its lawfulness could have been more clearly separated.
… however professional the Deputy Governor was in his approach to his task, a fair-minded and informed observer would conclude that there was a real possibility that he would be pre-disposed to uphold the legality of the order."

Plainly, a line had to be drawn between this unacceptable overlap of functions (participating in promulgating a rule and subsequently deciding on its lawfulness), and the position of judges, who often have extra-judicial experience involving the expressing of views on the appropriateness of legislation, or even proposing law reforms which are later enacted. Lord Rodger addressed this issue, para 9, concluding:

"The knowledge and expertise developed in these ways can only help, not hinder, their judicial work."

And adding, para 10:

"Judges have not infrequently been party to decisions overruling their own previous decisions."

As an example, Lord Rodger referred to (also para 10):

"In In re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291, Lord Mackay of Clashfern took part in a decision in which the House struck down a system adopted by a local authority for "starring" the essential milestones of their care plan adopted under the Children Act 1989. The appeal turned on identifying a cardinal principle of the Act - a piece of legislation for which Lord Mackay, as Lord Chancellor, had been the lead minister when the Bill was going through this House in its legislative capacity. More than that, as he explained, at p 327, para 108, he had actually given a lecture in which he suggested the idea of starring stages. At the beginning of the appeal, however, he informed counsel of this and they did not object to his sitting. So any question of apparent bias was resolved. Again, since Lord Mackay agreed with the decision to disapprove the starring system, the informed and fair-minded observer would have seen that he was well able to judge the matter independently and impartially when called upon to do so."

Thus Lord Rodger recognises that judges can be vulnerable to giving the fair-minded observer an impression of bias, and the way of overcoming that is to inform counsel of potentially embarrassing matters at the beginning of the hearing and to invite objection to their continued sitting.

Lord Brown, delivering the leading speech in Al-Hasan, referred to the common law test for bias (para 30):

"The common law test for bias has been authoritatively settled by the recent decisions of this House in Porter v Magill [2002] 2 AC 357 and Lawal v Northern Spirit Ltd [2004] 1 All ER 187:
"The question is whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal was biased".

The correct procedure was (para 41):

"… to have avoided the appearance of bias [the deputy governor] would either have had to make plain at the adjudications that he himself had actually been present when the squat search order was confirmed (rather than give the impression, as he appears to have done, that he had known nothing of it) and sought the prisoners' consent to his nevertheless hearing the charges, or alternatively stood down to enable them to be heard by a different governor (if necessary from another prison) without any such previous involvement in the case."

Damages and breach of the right to a fair hearing

Breach of the right to a fair trial will usually be vindicated by the declaration of the appellate court that there had been a breach, and a quashing of the conviction. There may also be an order for a retrial, which, in a remote sort of way, can also be of advantage to the accused if he obtains an outright acquittal. Awards of damages for breach of fair trial rights are rare, and when made have been "noteworthy for their modesty": R v Secretary of State for the Home Department, ex parte Greenfield [2005] UKHL 14 (16 February 2005), per Lord Bingham at para 17, in a judgment with which the other members of the House concurred.

Special damages may be awarded where a causal connection can be shown between the breach of the right to a fair trial and a loss for which compensation is claimed (para 11), and general damages can arise in rare cases where it can be shown that the applicant has been deprived of a real chance of a better outcome (para 14), or where there has been physical or mental suffering attributable to the breach of the right (para 16).

Where damages are appropriate, should domestic courts apply domestic scales of awards, or should they follow international law precedents? In Greenfield, the position was governed by the statutory relationship between the domestic courts and the Strasbourg court. Some points considered material by Lord Bingham at para 19 of Greenfield suggest analogous questions that may usefully be asked on this issue:

• (1) is the relevant rights legislation a torts statute?
• (2) has the rights statute been enacted with a view to giving remedies that improve on those at common law?
• (3) is there any legislative direction concerning the relevance of international awards of damages?

In Greenfield, it was accepted by the respondent that, in the light of a decision of the European Court that had been given after the lower courts’ decisions in this case, there had been breaches of the right to a fair hearing because the tribunal (a deputy controller determining an allegation of breach of prison rules) was not independent or impartial, and because the applicant had been denied legal representation notwithstanding that he had a lawyer who was available to act. Nevertheless, the House of Lords found that the hearing appeared to have been conducted in an exemplary way, and it would not speculate as to whether legal representation would have made a difference to the outcome. There was, furthermore, nothing special in the case that warranted special damages for anxiety or frustration. Damages were declined but declarations of the breaches of the fair trial rights were made. Costs were reserved for further submission.

Obviously, these declarations will result in improved procedures for other people charged with breaches of prison discipline. It seems, however, that Mr Greenfield had an additional 21 days of imprisonment added to his sentence in circumstances where a conviction would have been quashed if he had been subject to the jurisdiction of the criminal court. This case is a special example of the general difficulties that people who successfully appeal convictions face in obtaining a remedy for such sentences as they may have served.

Jury secrecy

To what extent, really, is the law applied in the jury room? The almost impenetrable veil of secrecy behind which jury deliberations are conducted prevents exposure of such injustice as may occur. The law deems the secrecy to be worth that price.

A glimpse into what jurors can get up to is given in R v Smith (No 2) [2005] UKHL 12 (16 February 2005), at para 11. The remedy, quashing the convictions and potentially ordering a retrial, fits the particular case, but it was only possible because one juror was concerned enough to write to the judge during the deliberations.

There is a case for observing jury deliberations, for example, by closed circuit television monitoring, to ensure no errors are made in the application of the law. Of course issues of juror anonymity and appropriate intervention would arise, as would problems of catering for unrepresented accused persons.

How much honesty can the system cope with?

Miscarriage of justice, or inconsequential error?

When can an appellate court hold that, notwithstanding an error at trial, conviction of the accused was not a miscarriage of justice?

The difficulties in deciding this issue are illustrated by the 3-2 split in the Privy Council decision Dial v The State (Trinidad and Tobago) [2005] UKPC 4 (14 February 2005). The appellants were seeking to overturn convictions in respect of which they had been sentenced to death.

I have, in the last entry on this blog, pointed out that the implications of there being no power to direct juries to convict (R v Wang [2005] UKHL 9, 10 February 2005), have some relevance to this issue. Wang emphasised the fundamental point that at trial, it is the jury that carries out the function of applying the law to the facts. But from the perspective of a court of first appeal, the view is slightly different. Where there is a second appeal, the court’s function may again be seen differently.

The majority in Dial described the approach of a court of first appeal as follows (para 42):

"…the question arising for the Appeal Court's determination is whether [new evidence, or an error at trial] realistically places the appellant's guilt in reasonable doubt - whether, in other words, the verdict is now to be regarded as unsafe. That necessarily must depend upon all the evidence in the case." [emphasis in the judgment]

On second appeal, the court looks at whether the first appellate court considered the relevant matters and whether it was accordingly entitled to reach the conclusion it did. While the majority in Dial (Lords Bingham, Carswell and Brown in a joint judgment) held that the appellate court’s conclusion should be sustained, the minority (Lords Steyn and Hutton in separate judgments) disagreed. Lord Steyn (para 54) held:

"Nowhere in … the judgment, does the Chief Justice [of Trinidad and Tobago] pause to consider how the jury (or a reasonable person circumstanced as the jury were) would have viewed the potential impact of the [fresh evidence]. That was an issue which the Court of Appeal as a matter of legal principle should have squarely faced. The Court of Appeal did not do so. It is a fundamental flaw in the judgment. In these circumstances it is not appropriate to defer to the Court of Appeal as the court who heard the new evidence."

Lord Steyn concluded with a caution for appellate courts:

"64. It is always important for a judge to bear in mind what Justice Learned Hand in his famous address during the Second World War, in Central Park, New York City, called the spirit of liberty. He said that the spirit of liberty is the spirit which is not too sure that it is right. The need for such an approach is immeasurably increased where the issue at stake is killing a man by the cruel and barbaric punishment of the death penalty. This spirit is not evident in the judgment of the Chief Justice. Instead his judgment is expressed in certainties and absolutes with some questionable and speculative assumptions in favour of the state."

Lord Hutton, also dissenting, referred to the law on how the court of first appeal should approach the matter:

"74. In R v Pendleton, at para 19, [2002] 1 WLR 72 the House of Lords affirmed that the guiding principle is that stated by Viscount Dilhorne in Stafford v Director of Public Prosecutions [1974] AC 878 at 906:
"While … the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe]."
"In R v Pendleton, at para 19, Lord Bingham of Cornhill stated:
"The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe." "

This reflects the inevitable distance of the appellate courts from the witness box. Furthermore, as evidence is recounted and digested on appeal, errors may creep into the narrative. Lord Steyn, at para 63, points out how the majority apparently allowed this to happen in their reliance on prosecution evidence which had not, in fact, been given. "The reliance on this factor in the majority judgment is unjustified and a failure of due process."

When the court of second appeal finds an error of reasoning in the court of first appeal, the court of second appeal carries out the exercise as it should, in its view, have been done. We can only guess what the majority in Dial would have concluded had it found an error in the court below, and had the majority not (assuming Lord Steyn’s due process criticism is correct) made a mistake about the extent of the prosecution evidence.

There are lessons to be learnt from Dial, and they include the danger of an appellate court being dogmatic about the facts of the case. An analogy that I suggest is useful is with the approach that a trial judge takes to submissions of "no case": R v Flyger [2001] 2 NZLR 721; (2000) 18 CRNZ 624 (CA). This, of course, is only an analogy in a loose sense, calling for lateral thinking rather than direct transposition of concepts. The question on a no case submission is whether there is evidence which, if accepted, would be sufficient to support a conviction. This might be transformed into an appropriate question on appeal where miscarriage of justice is in issue: if the error had not occurred at trial (or, as the case may be, if the fresh evidence had been available), could there have been stronger grounds for acquitting the accused than there had been at the flawed trial?

"Applying" the law

A judge may not in any circumstances direct a jury to find an accused person guilty: R v Wang [2005] UKHL 9 (10 February 2005).

This is so even where the defence had the burden of raising a defence and had failed to discharge that burden, and also where the facts are agreed at trial and there is nothing calling for adjudication and there is no basis upon which the accused can properly avoid conviction on the uncontested facts. The Crown’s argument that in these circumstances a directed guilty verdict would be acceptable (para 2) was rejected in the considered opinion of the Appellate Committee in Wang.

This does not affect certain recognised areas: the power of a judge to direct an acquittal; the power of a judge to withdraw a defence from the jury’s consideration if there is no evidence whatever to support it; and the absence of any requirement for the judge to direct the jury on issues not raised by the defence. See Wang, para 3.

At root is the fundamental distinction between the functions of the judge and the jury. In particular, it is the jury that applies the law to the facts. The judge does not apply the law to the facts. This process of "applying" is critical. It amounts to a constitutional check on the powers of the executive. The Committee cited remarks by (the then) Sir Patrick Devlin, writing in 1956, who said (Hamlyn Lectures, "Trial by Jury", pp 160, 162), that the leaving of the last word to the jury was

"an insurance that the criminal law will conform to the ordinary man's idea of what is fair and just. If it does not, the jury will not be a party to its enforcement …. The executive knows that in dealing with the liberty of the subject it must not do anything which would seriously disturb the conscience of the average member of Parliament or of the average juryman. I know of no other real checks that exist today upon the power of the executive."

Acknowledgement of this fundamental principle will require some revision of the standard way of directing juries. The judge usually tells the jury that if they find certain facts proved beyond reasonable doubt, then their verdict must be guilty. That is contrary to Wang. What the jury have to be told is that their task is to apply the law, the ingredients of the offence as set out by the judge, to the facts that they find proved beyond reasonable doubt in deciding whether they find the accused guilty. Further elaboration is not necessary, and in particular it would be wrong to tell the jury that they are free to find the accused not guilty even if they are sure the prosecution has proved its case.

Even where the result of applying the law to the facts would appear to be a foregone conclusion, there may nevertheless be "nuances (to adopt the language of Lord Keith in DPP v Stonehouse [1978] AC 55) not recognised by the judicial mind." (Wang, para 17.)

This calls to mind the problem of when an appellate court may properly hold that, notwithstanding some error of law at trial, there was no miscarriage of justice because the accused was not deprived of a real chance of acquittal. A particularly intriguing example is R v Howse [2003] 3 NZLR 767 (CA). Another is R v Bain [2004] 1 NZLR 638 (CA). Both these cases are subject to Privy Council consideration.

Collateral evidence: rule or discretion?

In contrast to revising hearsay laws that have been considered by the legislature and by the Law Commission, as was done by the House of Lords in R v Hayter - see my blog entry for Monday, February 07, 2005 - the High Court of Australia has resisted an invitation to alter the law. In Nicholls v R [2005] HCA 1 (3 February 2005), a case where the circumstances would have made any such revision obiter, one of the issues involved the collateral evidence rule.

The rule that answers to questions on collateral issues cannot be undermined by cross-examination is potentially a source of injustice if insufficient recognition is given to the exception concerning challenges to the creditworthiness of the witness. How relevant is it that the witness may have been unreliable on matters collateral to the issues at trial? This is obviously an area that should be treated as discretionary, rather than one for the application of rules.

Judges often have to decide between the alternatives of excluding evidence and admitting it, perhaps subject to a warning to the jury about the use to which such evidence may be put. I have discussed this in "The Duty to Prevent an Abuse of Process by Staying Criminal Proceedings" in Robertson (ed), "Essays on Criminal Law: A Tribute to Professor Gerald Orchard" (2004, Brookers Ltd, Wellington) 133. As I pointed out there, such decisions involve the balancing of the probative value of evidence against its prejudicial effect.

Readers who seek more agony may wish to consult my "Probative value, illegitimate prejudice and the accused’s right to a fair trial" (2005) 29 Crim LJ 8, where the balancing exercise involved in this sort of decision is analysed, and it is suggested (I summarise the suggestion) that the decision comes down to admitting evidence if it has significant probative value and if trial fairness would not be compromised.

This would be a satisfactory way of approaching the admissibility of challenges to answers to questions on collateral issues. Of course we are considering something analogous to the other side of the coin because what is usually at stake when the probative/prejudicial exercise is undertaken is the admissibility of prosecution evidence. Usually the collateral evidence rule affects evidence that the defence seeks to adduce, albeit through a prosecution witness. Looking at the decision from this perspective, the first consideration would be: would the evidence be probative on the issue of the witness’s reliability on a matter in dispute in the case? The second consideration would be, would preventing the defence from seeking the evidence affect the fairness of the trial? We can easily see that these come to much the same thing. That is acceptable, because we are not balancing them against each other.

In Nicholls v R at para 53, McHugh J, who would have changed the collateral evidence rule, put it this way:
"… Where the interests of justice are likely to be advanced by admitting evidence tending to destroy the credibility of a witness, courts should hesitate to reject such evidence. Thus, where a circumstance affecting credibility is so inextricably connected with a fact in issue that it will probably determine that fact, a trial judge should generally admit evidence of that circumstance. Evidence of such a circumstance should not be excluded merely because it is not within the established exceptions to the collateral evidence rule. In Natta (1991) 32 FCR 282 at 300 the Full Federal Court concluded that a collateral matter could be pursued beyond cross-examination "in the interests of justice, whether or not it came within any of the traditional exceptions to the rule against evidence on collateral issues."

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.