Silence

Broad common law rights that have been included in the Bill of Rights are not limited to the extent of their definition in the Bill. For example, s 23(4) of NZBORA provides that everyone who is arrested or detained under any enactment for any offence or suspected offence has the right to refrain from making any statement. But if the person questioned has not been detained or arrested, the right to silence that exists at common law continues to apply.

In R v Turcotte [2005] SCC 50 (30 September 2005) the Supreme Court of Canada referred to the common law right to silence (para 41):

"41 Under the traditional common law rules, absent statutory compulsion, everyone has the right to be silent in the face of police questioning. This right to refuse to provide information or answer inquiries finds cogent and defining expression in Rothman v. The Queen, [1981] 1 S.C.R. 640, per Lamer J.:
"In Canada the right of a suspect not to say anything to the police ... is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do otherwise by law. It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise. [Footnotes omitted; p. 683]""

Silence, however, can, albeit only rarely, be indicative of a consciousness of guilt. Other types of conduct that can indicate a consciousness of guilt are flight, resisting arrest, breach of bail, concealment (lying, giving a false name, using a disguise, disposing of evidence). Silence, however, is special insofar as the person has the right to be silent, and this right would be rendered illusory if it could be used to support an inference of guilt.

This was recognised in Turcotte, where examples of the limited circumstances in which the silence of an accused may be rendered relevant and probative were cited (para 49 – 50): where the defence claim the accused co-operated with the police, where the defence alleges that the police investigation was flawed, and where alibi is not disclosed before trial. Silence may also be relevant to credibility (not as proof of guilt) where two accuseds jointly tried blame each other for the offending, and one gives evidence at trial but had not made a statement to the police (para 48).

The right to silence is not waived merely because the suspect answers some questions (para 52). The fact that the accused was silent may be an inextricable part of the narrative, but, where it is, the judge must tell the jury that it is not evidence of guilt. Failure to do so can result in a new trial being ordered, as it was in Turcotte.

Reverse onus and the strength of rights

In R v Phillips [1991] 3 NZLR 175 (CA) the New Zealand Court of Appeal missed the opportunity to lead the way in upholding human rights. In R v Lambert [2002] 2 AC 545 (HL) the Law Lords seized the opportunity that the New Zealand court had missed. Now, as a result of R v Hansen 29/8/05, CA128/05, an opportunity presents itself to the Supreme Court to catch up. The issues in question were specifically left open by the Court in Siloata v R [2005] 2 NZLR 145, (2004) 21 CRNZ 426 (SC).

There are two issues. The more general is how easily legislation may override the Bill of Rights. The more specific issue is whether the presumption of innocence requires that a statutory reverse burden on the accused to establish a matter carries the standard of proof on the balance of probabilities, or whether it is just the standard of raising a reasonable doubt, when the legislation is silent about that.

Overriding the Bill of Rights.
The New Zealand Bill of Rights Act 1990 ("NZBORA") recognises that it may be overridden by statute, but offers some resistance to that in s 6:

"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."

Note the phrases "can be given", and "shall be preferred to any other meaning". These suggest the active "giving" of a meaning, as opposed to passively accepting an apparent meaning, and the strong motivation to give such a meaning implicit in the mandatory "shall be preferred". Moreover, the mandated meaning shall be preferred "to any other meaning", which indicates an intention to override the ordinary and natural meaning (the one usually preferred in statutory interpretation) where necessary.

The relevant United Kingdom legislation, s 3 of the Human Rights Act 1998 [UK] has a similar role:

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

One would be hard pressed to see any difference in meaning between these two sections. They are expressions of the same idea. Section 3 has been interpreted as requiring a strained interpretation of statutory language if that is necessary to prevent conflict with rights, even if doing so requires a departure from the legislative purpose: Ghaidan v Godin-Mendoza [2004] UKHL 30 (HL).

Strange to say, there has been some effort to draw a distinction between s 6 and s 3. In R v Kebeline [2000] 2 AC 326 (HL), Lord Cooke (who had delivered the judgment in Phillips) said:

"… section 6 of the New Zealand Bill of Rights Act 1990 is in terms different from section 3(1) of the Human Rights Act 1998. The United Kingdom subsection, read as a whole, conveys, I think, a rather more powerful message."

Lord Steyn has also claimed to be able to see a difference: R v A [2002] 1 AC 45; [2001] 3 All ER 1 (HL) at para 44:

"The draftsman of the [Human Rights] 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. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights."

Well, does s 6 really limit itself to "reasonable" interpretations? It doesn’t say "wherever an enactment can reasonably be given …".

Reverse onus and the presumption of innocence
Section 25(c) of NZBORA provides that everyone who is charged with an offence has, as a minimum right, the right to be presumed innocent until proved guilty according to law. Of course the presumption of innocence is an ancient common law right, and its inclusion in the Bill of Rights gives it (if this is possible) added status.

In Phillips the question was whether s 25(c) of NZBORA requires a new interpretation of the reverse onus. Hitherto, when a statute provided that an accused shall prove something, that was interpreted to mean prove to the standard of the balance of probabilities. The submission in Phillips was that this should now mean prove by raising a reasonable doubt.

The context of Phillips was s 6(6) of the Misuse of Drugs Act 1975, which applies when an accused is proved beyond reasonable doubt to have had possession of a quantity of drug equal to or more than an amount specified in the Act. The effect is that in such circumstances the accused "is presumed until the contrary is proved to be in possession of a controlled drug for [the purpose of supplying it]." Thus the issue came down to whether "until the contrary is proved" in this context can mean "until a reasonable doubt is raised".

In Phillips it was held that that meaning was not open, whereas in Lambert it was held, in relation to reverse-onus legislation, that it was. In the recent case, Hansen, Phillips was followed.

Hansen is based on two points: the claimed difference between s 6 of NZBORA and s 3 of the Human Rights Act 1998[UK], and the idea that raising an issue is not "proof", so that the meaning of the reverse onus provision advocated for the accused (appellant) was not open. It must be said that the Court of Appeal was correct to follow its own earlier decision in Phillips, and to leave an application for leave to appeal to be made by the accused. This, indeed, is underway.

Admissibility of pre-trial denials

For no good reason, there has recently been some hesitation about whether the exculpatory parts of a statement that also has incriminating content, made by an accused to the police before trial, are admissible as proof of their truth. In Mule v R [2005] HCA 49 (8 September 2005) the law was left unchanged: the exculpatory parts may be relied on by the defence at trial as evidence of their truth. The High Court of Australia noted that this was the established law in Australia and England (citing the House of Lords decision R v Aziz [1996] AC 41, which, however, is a little controversial, insofar as it suggests that an accused cannot insist on production of his mixed statement).

We might as well take advantage of the current dearth of interesting cases (it is the holiday season in Europe) to dwell upon this. Prior consistent statements are inadmissible, as hearsay (R v Sturgeon (2004) 21 CRNZ 345 (CA)), so when an accused gives evidence, the fact that he said the same thing outside court is not proof of the truth of what was asserted. Even the fact that he said it is inadmissible, unless recent fabrication is alleged, in which case it is admissible as proof of consistency, and not as proof of the fact asserted. This rather subtle distinction is, of course, a source of some confusion.

So, when a suspect is interviewed by the police and he makes a fully exculpatory statement, that is hearsay and the defence cannot insist that the prosecution adduce it in evidence. Usually, however, statements to the police do include admissions, even if not complete admissions of the offence alleged. They may admit certain things but deny an ingredient that the prosecution have to prove to establish guilt. These are called mixed statements. As a matter of fairness, the law has allowed them to be admitted as proof of the truth of both their inculpatory and their exculpatory parts: R v Wilkie 27/4/05, CA6/05; R v Poa 26/7/01, CA48/01.

Obviously, a line has to be drawn between statements that are genuinely mixed, and those that are contrived to be exculpatory in the hope that the prosecution will have to adduce them in evidence: R v Reihana 22/3/01, CA350/00.

When an accused gives evidence at trial, it is customary for the judge to give the jury what is called a tripartite direction: (1) they may accept the accused’s evidence and find him not guilty; (2) they may think that the accused’s evidence cerates a reasonable doubt and find him not guilty; (3) they may reject the accused’s evidence, in which case they must consider the evidence in the case that they do accept and determine whether it proves guilt beyond reasonable doubt: R v McI [1998] 1 NZLR 696 (CA). Such a direction is not required for a pre-trial statement: R v I 16/10/02, CA255/02, but it can be given: Reihana, above. Where the accused has made a pre-trial statement but does not give evidence at trial, the judge may comment on the reduced weight that the statement may have: R v Green 18/2/92, CA119/92.

With the law in this mildly complex, but settled, state, it is hardly surprising that the Supreme Court has recently declined to accept an appeal on the question of the admissibility of the exculpatory parts of a pre-trial statement.

The proviso

Vexed issues concerning the application of s 385(1) of the Crimes Act 1961 are on the way to being resolved as a result of the Supreme Court’s decision in Sungsuwan v R [2005] NZSC 57 (25 August 2005).

Issues have concerned the power of appellate courts to disallow appeals against conviction if, notwithstanding that there had been, for example (s 385(1)(c)) a miscarriage of justice at trial, that miscarriage was not "substantial": the proviso to s 385(1). When is a miscarriage of justice "substantial"?

In Sungsuwan the appeal was based on alleged misconduct of counsel at the trial, in failing to adduce evidence that, it was claimed, would have supported the defence, from two prosecution witnesses. The Supreme Court unanimously held that the verdict was safe and that there was no miscarriage of justice in the conviction. Three judgments were delivered: individually by Elias CJ and Tipping J, and jointly by Gault, Keith and Blanchard JJ (delivered by Gault J).

Elias CJ held that it would be unlikely to be appropriate to apply the proviso where a miscarriage of justice in terms of s 385(1)(c) is made out (para 6).

Tipping J was firmer on this point, holding that in cases coming within s 385(1)(a) and (c) the proviso was fused with the error, in the sense that there was no need to apply the proviso once the error had been established (para 113). At this point, Tipping J footnotes R v McI [1998] 1 NZLR 696 (CA), illustrating that there was a degree of "awkwardness" in the relation between para (c) and the proviso. In that case, delivering the majority judgment of himself and Keith J, Tipping J had not gone so far as to separate para (c) from the application of the proviso, and had held that before the proviso could be applied, the Court "must be sure that the jury would without doubt have convicted had the matters giving rise to the initial miscarriage of justice not been present" (p 712, line 22). There are two points here worth noting.

First, the attempt in McI to imagine what might have happened had the error not occurred, is not used as the test in Sangsuwan. Admittedly, it makes sense in some contexts, but it can be a distraction from the real point which is, given that the error had occurred, what was its effect? In Sungsuwan the question is put variously as "whether the verdict is unsafe" (Elias CJ at para 7), whether the error prejudiced the accused’s chance of an acquittal (Gault J at para 67), whether the error was likely to have had an effect on the trial outcome (Gault J at 69), whether there was a real risk that the error affected the trial outcome, whether there was a real concern for the safety of the verdict (Gault J at 70), whether the error prejudiced the accused’s prospects of acquittal or a lesser verdict (Tipping J at 101), whether the error led to a real risk of an unsafe verdict (Tipping J at 107, 108, 110, 111, 116), whether the accused was deprived of a reasonable possibility of a more favourable verdict (Tipping J at 115).

Second, the quoted passage from McI shows that there is a high standard on the prosecution to show that the miscarriage of justice was not "substantial", implying that tolerance of miscarriage of justice is low. This appears consistent with Sungsuwan, as the formulae referred to in the previous paragraph indicate. Tipping J, however, and perhaps unintentionally, highlighted an inconsistency by referring in Sungsuwan to "the high threshold" for showing that the trial had been unfair (para 115, footnote 45). Is unfairness tolerated to a greater extent than other forms of miscarriage of justice?

One thing made clear in Sungsuwan is the relevance of the effect of the error on the verdict in cases where the error has led to the trial being unfair. Trials may, of course, contain errors, yet not amount to unfair trials. Trial unfairness is a narrow concept, focused on the questions of bias and application of the law to the facts. Some erroneous directions on the law may not cause a jury, overall, to misapply the law to the facts; they may, in the particular context, be insignificant slips. There has been some difference in the cases (see especially, Howse, below)about whether an error has to affect the verdict before the trial can be said to have been unfair.

Elias CJ held that it was difficult to envisage that a verdict reached without fair trial could not amount to a miscarriage of justice and it would not be likely that the proviso could apply (para 6). Gault J referred to errors that deny the accused a fairly presented defence, saying that these may readily permit the Court to find prejudice and in extreme cases may not require the Court to ask whether they affected the verdict (para 65). Tipping J addressed the point more directly, saying that, rarely, things may have gone so wrong at trial that a miscarriage of justice occurred without there being any need to refer to whether there was a real risk of an unsafe verdict (para 111, 112, citing, inter alia, the judgment of himself, and Richardson P and Blanchard J in R v Griffin [2001] 3 NZLR 577, 587).

When judges say that things will happen only "rarely", they happen all the time. To say "rarely" is to indulge in wishful thinking. The point is that whenever the trial has been unfair, there is no need to enquire whether the unfairness caused the guilty verdict. No matter how correct the guilty verdict may be, it must not be arrived at by an unfair trial.

It makes no sense to put the necessary risk of trial unfairness, before a substantial miscarriage of justice is found on that ground, at any different from the necessary risk of an unsafe verdict. Difficulty can arise in deciding between the two grounds, as is illustrated by Howse v R [2005] UKPC 31 (19 July 2005), noted in this blog on 23 July 2005. There, the majority, in a case where it was not in issue that the admissible evidence supported the verdict, rather the issue was whether the trial had been unfair, applied the criterion of what course the trial would have taken if the errors had not been made. This was precisely the wrong test, as Sunsuwan shows the appropriate question is, given that the errors occurred, what part did they play. The correct approach would have been to ask, as did the minority in Howse, whether the errors could have played a part in the task of applying the law to the facts.

Readers of these blogs will be deeply satisfied to note that in our entry for 1 April 2005, commenting on Teeluck v State of Trinidad and Tobago, we asserted that loss of a fair trial was itself a substantial miscarriage of justice and did not require that the verdict be unsafe.

Impartiality and reason

On this, the first anniversary of the start of this blog, we consider a case that illustrates how not to get the court on your side.

In Mugesera v Canada (Minister of Citizenship and Immigration) [2005] SCC 39 (18 August 2005) proceedings filed in the Supreme Court of Canada alleged that it was a biased court, its composition having been manipulated by the (former) Minister as part of an extensive Jewish conspiracy aimed at ensuring Mugesera would be deported.

One new Judge had been appointed, and she recused herself from having anything to do with this appeal as soon as she saw it on the Court’s list of forthcoming work. Her husband was chair of the War Crimes Committee of the Canadian Jewish Congress, a party to these proceedings, and he had conveyed representations about the case to the Minister. Deportation was sought on the grounds that Mugesera wrongly had been allowed to stay in Canada, and that he was alleged to have committed, or had incited others to commit, murder, genocide, or crimes against humanity in Rwanda.

Mugesera sought a stay of proceedings on the grounds that the Minister had wrongly exercised his decision to seek deportation, by appealing an earlier court ruling, and that the Supreme Court of Canada was biased.

The Court, now sitting as 8 Judges, delivered a joint judgment, referring briefly to the law on stay of proceedings (para 12) and judicial impartiality (para 13), and held that the Minister had properly exercised his power to appeal (para 14). It then turned to the allegations that it was biased. It held that no reasonable person would think that, one Justice having recused herself, the ability of the other members of the Court to remain impartial would be impaired (para 15). It made important observations of the duties of counsel when preparing legal argument (para 16):

"Although it is not our usual practice, the content of the motion and of its allegations compels us to point out that it is unprofessional and unacceptable. It constitutes an unqualified and abusive attack on the integrity of the Judges of this Court. In an attempt to establish the alleged Jewish conspiracy and abuse of process against the Mugeseras, this pleading systematically referred to irresponsible innuendo. In addition, it refers to exhibits that are irrelevant and whose content is entirely inappropriate and misleading. Thus, it is obvious from the motion and its supporting exhibits that it was drafted with little concern for the rigour, restraint and respect for the facts required of all lawyers involved in judicial proceedings as an officer of the court. We are compelled to say that none of the allegations in the motion, no portion of the affidavits filed in support of the motion, and none of the documents to which these affidavits refer justifies the motion with respect to members of this Court or to the appellant’s decision to initiate and pursue this appeal. The only abuse of process from this motion lies at the feet of the respondent Mugesera and [his counsel] Mr. Bertrand."

The Court concluded with observations that reflect the difference between politics and law:

"17 Regretfully, we must also mention that the motion and the documents filed in support of it include anti Semitic sentiment and views that most might have thought had disappeared from Canadian society, and even more so from legal debate in Canada. Our society is a diverse one, home to the widest variety of ethnic, linguistic and cultural groups. In this society, to resort to discourse and actions that profoundly contradict the principles of equality and mutual respect that are the foundations of our public life shows a lack of respect for the fundamental rules governing our public institutions and, more specifically, our courts and the justice system."

Purpose and policy

R v Lavender [2005] HCA 37 (4 August 2005) required the High Court of Australia to decide whether malice is an element of manslaughter in legislation dating back over 100 years. While the 7 judges all agreed in the result (that it is not), the case is interesting for its demonstration of how evenly balanced is the nature of statutory interpretation. Kirby J noted this point at para 69.

The only reason Kirby J agreed with the Court’s conclusion was that the consequences of the preferred interpretation were "less unsatisfactory" than the consequences of the rejected interpretation. This was the critical point for him, and it was decisive after an application of the standard approach to statutory interpretation, which involves an analysis of the context of the disputed provision, the legislative history, and an effort to discern the intention of the legislators. A background consideration, as a matter of last resort (para 93) is the rule that penal statutes should, in cases of ambiguity, be construed against the state.

The so-called purpose of the legislators is, on the standard approach, the touchstone. Indeed, it has (unambiguous) statutory force in the form of s 5(1) of the Interpretation Act 1999[NZ] which provides that the meaning of an enactment must be ascertained from its text and in the light of its purpose. The Privy Council referred to that in R v Karpavicius [2002] UKPC 59, (2002) 19 CRNZ 609, a case where the opposing arguments were linguistically finely balanced. The Privy Council made it plain that the purposive approach is to take precedence over the strict construction of penal statutes rule.

However, the courts depart from the purposive approach when that conflicts with human rights, giving effect to rights wherever doing so is consistent with the "underlying thrust" or is "with the grain" of the legislation (as opposed to being consistent with the legislative purpose): Ghaidan v Godin-Mendoza [2004] 3 WLR 113, [2004] UKHL 30 (21 June 2004). Plainly, there are some rather fine shades of meaning here.

In considering how best to approach the interpretation of old legislation, it is appropriate to bear in mind the words of Francis Lieber, Legal and Political Hermeneutics (enlarged ed, 1839), at 135, quoted by Richard Posner, The Problems of Jurisprudence (1990) at 298:

"Whether we rejoice in it or not, the world moves on, and no man can run against the movement of his time. Laws must be understood to mean something for the advantage of society; and if obsolete laws are not abolished by the proper authority, practical life itself, that is, the people, will and must abolish them, or alter them in their application …."

Posner argues that the term "interpretation" is so elastic that "it often is a fig leaf covering judicial discretion rather than a guide to decision making" (p 30).

If there is a lesson to be drawn from deconstructionism, it is that the meaning of a text is ascertained by its reader, and is not pre-determined by its author. See JM Balkin, "Deconstructive Practice and Legal Theory" at http://www.yale.edu/lawweb/jbalkin/articles/decprac1.htm

Silence as evidence

When, if ever, is the accused’s silence at trial evidence of his guilt? The conventional view is that silence itself is not evidence of anything; it is just an absence of evidence. The significance of this absence of evidence is, conventionally, that it may strengthen the weight to be given to prosecution evidence. Adams on Criminal Law puts it this way, at CA366.02:

"Silence cannot be used to fill a gap in the evidence presented by the prosecution, or relied on to establish guilt so as to warrant the jury omitting to scrutinise all the evidence before it. However, the Judge may direct the jury that in determining the weight to be given to evidence tending to prove guilt it may accord greater weight to such evidence by an inference drawn from the absence of explanation or answer from the accused: R v Hines (No 3) (1998) 16 CRNZ 236 (CA)."

On the other hand, in R v Becouarn [2005] UKHL 55 (28 July 2005) the House of Lords approved a direction to the jury that included the following:

" … if, and I stress the word, if, if you think in all the circumstances it is right and fair to do so you are entitled, when deciding whether the defendant is guilty of the offences with which he is charged, to draw such inferences from his failure to give evidence as you think proper. In simple terms that means that you may hold his failure to give evidence against him."

Permitting "such inferences as you think proper" potentially allows the jury to use silence as if it were positive evidence of guilt. This potential was recognised by Lord Carswell (with whom the others agreed) at para 21, where reference was made to a study showing that people tend to treat credibility evidence (in the example the Court was considering, this was evidence of the accused’s convictions) as if it were propensity evidence:

" … It is, however, a matter of notoriety that juries in practice are likely to regard them as indicators of propensity and so supportive of guilt. That piece of folk knowledge received some verification from a study commissioned by the Home Office and based on research carried out on the effect of bad character evidence on mock jurors (Sally Lloyd-Bostock, The Effects on Juries of Hearing about the Defendant's Previous Criminal Record: a Simulation Study [2000] Crim LR 734)."

In Becouarn the accused at trial had attacked the character of prosecution witnesses in a way that, inevitably, would have caused the judge to permit the prosecution to cross-examine him on his own previous convictions, if he gave evidence. By not giving evidence an accused can, in these circumstances, prevent the jury learning of his record. The accused did not give evidence, and the judge directed the jury on the significance of his silence at trial, and included the comment quoted above.

Jurisdictions differ in what is regarded as appropriate judicial comment on the accused’s silence at trial. As Adams observes, CA366.02:

"It would appear that the New Zealand position to some extent represents a mid-point between English practice where stronger comment may be considered appropriate (see R v Martinez-Tobon [1994] 2 All ER 90 (CA)) and the more restrictive Australian rule, as to which see Azzopardi v R (2001) 179 ALR 349; (2001) 119 A Crim R 8 (HCA)."

The Evidence Bill does not address the contents of judicial comment, merely providing (clause 29) that "In a criminal proceeding, no person other than the defendant or the defendant’s counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial."

Fundamental difficulties

New Zealand has not been served well by the Privy Council in the last criminal appeal it will hear from this country. It is alarming that some of the most senior judges differ over recognising the fundamental attributes of a fair trial. In Howse v R [2005] UKPC 31 (19 July 2005) the Judicial Committee consisted of three Law Lords and two retired Lords Justice of Appeal, the Rt Hon Sir Swinton Thomas, and the Rt Hon Sir Andrew Leggatt. The Court split 3-2. Lord Rodger, the most senior of these Law Lords, dissented. The majority Law Lords were Hutton and Carswell. The other members were also divided, Sir Swinton Thomas being with the majority. The absence of Lords Bingham, Nicholls and Steyn from this Board could be said to significantly reduce the status of the case.

Fairness is a broad and not always easy to define concept. But lawyers like to attack such concepts and break them down. So, there are, I suggest, two kinds of trial unfairness. The first is procedural unfairness, and this may or may not give rise to the second kind, substantive unfairness. Alternatively, substantive unfairness may exist without there also being procedural unfairness. Either kind of unfairness amounts to a substantial miscarriage of justice, requiring the quashing of conviction and (usually) an order for a new trial.

Procedural unfairness occurs where the accused is deprived of the right to have the facts determined by an unbiased tribunal that applies the law correctly. By “unbiased” I mean to include juries that are not impartial because of some misdirection on the law by the judge. This might be, to give just a few examples, a misdirection on the use of propensity evidence, on the burden of proof, on the defendant’s right to silence, or on the need for caution in relation to particular evidence. Such errors could affect a juror’s assessment of the evidence against the defendant. These are not in the category of errors called substantive because they do not involve the ingredients of the alleged offence or, as one might say, the substance of the charge. More obvious procedural errors can occur before a trial, for example where there has been a failure of disclosure by the prosecutor, or where  an impropriety in the obtaining of evidence was such that the evidence was wrongly admitted at trial. There may, nevertheless, be some errors that do not give rise to unfairness if it can properly be said that they were of no consequence in the overall context of the trial. The critical issue in Howse was whether the errors that occurred were of no consequence in this sense.

Substantive unfairness occurs where the accused has, through errors at trial, or through the unavailability of evidence that subsequently comes to hand, been improperly deprived of a fair chance of an acquittal. For example, the jury may have been wrongly directed, or not directed at all, on the elements of the alleged offence, or on the burden and standard of proof, or on a defence. 

It would be wrong to confuse the question of fairness of either kind with the question of guilt. But in Howse the Privy Council majority did just that.

The majority in Howse thought that, because the properly admissible evidence of guilt was overwhelming, there was no substantive unfairness. They also held that there was no procedural unfairness because the errors were inconsequential, and therefore the trial was fair.

The minority in Howse carefully analysed the significance of the improperly admitted evidence in the context of the trial. The Crown had decided to run its case relying on motive to establish that the accused, and not his partner, was the murderer. The Crown had obtained a pre-trial ruling that evidence of motive was admissible, and, bearing in mind the importance of that evidence for the prosecution case, it was impossible (said the minority, para 68) for the Crown to now argue that the evidence was insignificant. The trial judge had referred to it as being significant when she summed up the case to the jury (para 65). In fact, the Court of Appeal held that the evidence of motive was inadmissible, and this finding was not challenged before the Privy Council. The minority held that the trial had been unfair because the accusation of motive, central to the Crown’s case, was not supported by any admissible evidence.

The majority reasoned that, if the errors at trial had not occurred, the Crown’s case was so compelling that a conviction was inevitable, therefore the trial had been fair. In the context of the case, said the majority, the errors were not radical or fundamental enough to deprive the accused of a proper trial (para 40).

A potential difficulty exists in the view of all members of the Board (paras 37 and 54) that a high threshold must be crossed before a finding of trial unfairness can be made. This, it is suggested, should not be taken to mean that a reasonably high level of unfairness will be tolerated before it amounts to a substantial miscarriage of justice. Rather, it should be taken to mean that the courts will scrutinise claims of unfairness very carefully before accepting that unfairness occurred.

Howse is a lesson in the dangers of emphasising substantive fairness at the expense of procedural fairness. The majority made the mistake of applying, to the issue of whether there was procedural unfairness, the criterion for substantive unfairness. There may always be a dispute over whether Mr Howse received "the kind of trial which the law expects that an accused should have" (para 47).

Proof and risks

Is there a difference, in terms of whether a standard of proof is applicable, between deciding whether a "fact" is proved, and deciding whether a "risk" exists?

One view is that a reasonable doubt may exist about the existence of a fact, and about the existence of a risk. Another view is that, while facts may be amenable to reasonable doubt, risks are matters of judgment to which application of a standard of proof is inappropriate.

An example of a "risk" is the risk that a prisoner will be a danger to the safety of the public if released on parole. Another example is the risk that a decision in the course of a trial, such as one concerning the admissibility of evidence, will result in unfairness to the accused. Is the risk of trial unfairness a matter for standard of proof?

Trial unfairness can arise if evidence is wrongly admitted. In particular, evidence that has been obtained unfairly may, if ruled admissible, result in an unfair trial. The approach taken in R v Noble 7/4/87, Eichelbaum J (as he then was), HC Wellington T4/86 was that where the accused establishes an evidential foundation for his claim that the evidence was unfairly obtained, the burden of proof shifts to the prosecution to prove beyond reasonable doubt that it was not unfairly obtained.

In contrast, there are some dicta to the effect that questions of admissibility are matters of judgment not amenable to any particular standard of proof (R v Marsh (1991) 7 CRNZ 465 (CA), R v Williams (1990) 7 CRNZ 378 (CA)), but these should not be taken as governing the approach to be taken where a factual foundation for admissibility is required. In Marsh the Court quoted its dictum on this point in Williams, and it is clear that the point was that what amounts to unfairness is a matter of judgment. In other words, when the Court has determined the facts, it must apply judgment to decide whether they amount to unfairness. Notwithstanding this, a reasonable doubt about fairness should lead to exclusion of evidence, as occurred in R v Te Huia 8/9/97, Gendall J, HC Napier T17/97, discussed in Mathias, "Unfairly observed rights" [1998] NZLJ 21. The Privy Council has required fairness to be proved beyond reasonable doubt, after considering and rejecting the (now obsolete) New Zealand prima facie exclusion rule: Mohammed v The State [1999] 2 AC 111 (PC): the prosecution must prove beyond reasonable doubt that there was no breach of rights, and (p 124) a breach of the right to a fair trial must inevitably result in the conviction being quashed. Consequently, it would be inappropriate to rely on the notion that fairness is a matter of judgment not amenable to a standard of proof.

The House of Lords has recently expressed views on whether a risk can be amenable to a standard of proof: Re McClean [2005] UKHL 46 (7 July 2005). On this point the relevant issue was whether a standard of proof applied to the judgment of the risk posed by a prisoner to the safety of the community. Lord Bingham, para 26, referred to cases in which doubts had been expressed about whether a standard of proof applied to the evaluation of a risk, but he concluded, para 29, that

" … In the last resort, any reasonable doubt which the Commissioners properly entertain whether, if released immediately, a prisoner would be a danger to the public must be resolved against the prisoner … "

This indicates that, when after considering the evidence, the tribunal is unsure, a standard of proof then is applicable to enable a decision to be made.

Lord Brown, agreeing, made the same point, para 103:

"…But even accepting that just occasionally the Commissioners may be genuinely unsure if such a prisoner can safely be released—the only situation in which the burden of proof assumes relevance—I for my part would unhesitatingly conclude that he should remain in prison rather than benefit from the accelerated release scheme…."

This is preferable to endeavouring to sustain fallacious distinctions between conclusions of "fact" and evaluations of "risk". Both, after all, are just conclusions, and both can be challenged by the question "how sure are you of that?"

"Starting points" for sentences

The starting point for a sentence is "the true point of comparison with other offending before individual aggravating and mitigating factors are taken into account. Fixing the starting point is the mechanism for seeking consistency in sentencing": R v Mako 23/3/00, CA446/99. The assessment of starting points is not capable of exact arithmetical gradation or scaling: R v Norfolk 27/8/01, CA195/01. The cases reveal two approaches to starting points, as was noted in R v Hooker 30/8/01, CA154/01, at para 7:

"…it is perhaps unfortunate that the term ‘starting point’ is used in judgments in two different ways. Sometimes the term is used to reflect the opening position before a consideration of aggravating and mitigating circumstances. At other times the term is used to reflect the position before mitigating circumstances are taken into account; that is, aggravating features are built into the so-called starting point."

In R v Gemmell 23/10/01, CA267/01 it was held that the starting point should reflect all aspects of the case except the plea (citing R v Ataria 15/12/98, CA318/98).

There seems to be a sort of halfway house approach in practice, according to which the starting point is measured by taking into account aggravating features. It is respectfully suggested that this is the preferable method. An interesting illustration is R v Raheke 8/7/04, France J, HC Napier S8/2004 (above, para 1808), where although the Crown submitted that the starting point should be established before aggravating features were added (para 9 of the sentencing remarks), France J took the aggravating features into account in setting the starting point (paras 18 and 20 of the sentencing remarks).

This logically sensible approach was taken while at the same time her Honour was guided by the approach in R v Bradley and Galvin 20/2/04, Williams J, HC Rotorua CRI-2003-063-8523. However in that case Williams J had set a starting point, then (apparently) added aggravating features (para 22 of his Honour’s remarks). In referring to the desirability of consistency, in following the approach of Williams J, France J found guidance in R v Wallace and Christie [1999] 3 NZLR 159, (1999) 16 CRNZ 443 (CA) in setting the starting point.

Thus although both Judges found assistance in Wallace in setting the starting point, their approaches to the relevance of aggravating features appears to differ. In Wallace the Court did not specify which method was to be preferred, but at para 30 of the judgment, after setting out summaries of relevant cases, the Court referred to starting points before allowance was made for mitigating factors. Again, in para 36, the Court referred to either method producing an appropriate result in relation to Wallace, whose appeal was dismissed. However, in R v Arthur 17/3/05, CA382/04, at para 26, the approach was said to be to set the starting point before taking into account aggravating features (such as the existence of relevant previous convictions) and mitigating features (such as a plea of guilty).

The above discussion of starting points is predicated on the meaning of "mitigating factors" as factors that are not connected with the offending but that may properly be taken into account as diminishing the final sentence. This is the meaning of "mitigating factors" used by DA Thomas in his analysis of English sentencing. A different usage has been employed by the Court of Appeal, whereby "mitigating factors" include matters that concern the commission of the offence, as well as those that concern the circumstances of the offender: R v Taueki 30/6/05, CA384/04, a decision of the Full Court giving guidelines for sentencing for violent offending involving grievous bodily harm. Accordingly, the "starting point" may now be understood as the sentence appropriate when aggravating and mitigating circumstances relating to the offending are taken into account, but excluding aggravating and mitigating features personal to the offender. The starting point is the sentence, determined in this way, for an adult offender after a defended trial: Taueki para 8.

Fairness to Prisoners

Parole Board decisions differ from those of trial courts: the former give paramount consideration to the safety of the community (Parole Act 2002[NZ], s 7(1)), while the latter acknowledge the fundamental requirement of fairness to the accused. To what extent, then, must Parole Board hearings be fair to the prisoner?

This issue has been considered by the House of Lords in Roberts v Parole Board [2005] UKHL 45 (7 July 2005), where the questions were whether the Parole Board could withold information from the prisoner and his legal representative and instead use the specially appointed advocate (SAA) procedure. The same questions could arise in New Zealand, as s 13(3) and (5) of the Parole Act 2002[NZ] authorise the non-disclosure of information to the prisoner in the interests of the safety of any person, and the Board "may" (not must) disclose that to the prisoner’s counsel.

In Roberts the House of Lords split 3-2. Lord Woolf (the Chief Justice) and Lords Rodger and Carswell held that in principle (the case could not yet be determined on its facts) the SAA procedure could be used in rare cases where the public interest required non-disclosure, but (per Lord Woolf, para 83, point vii):

"What will be determinative in a particular case is whether looking at the process as a whole a decision has been taken by the Board using a procedure that involves significant injustice to the prisoner. If there has been, the decision should be quashed. The procedure may not be ideal procedure but it may be the only or the best method of balancing the triangulation of interests involved in the very small number of cases where a SAA may be instructed."

This may be criticised for vagueness over what is "significant" injustice to the prisoner. Lord Carswell, concurring, put the conclusion in these terms (para 144):

"I accept that there may well be cases in which it would not be sufficiently fair to be justifiable and each case will require consideration on its own facts. I would agree that the SAA procedure should be used only in rare and exceptional cases and, as Lord Bingham of Cornhill said in R v H [2004] 2 AC 134 at para 22, as a course of last and never first resort."

Again, what is "sufficiently" fair?

Lord Rodger, also in the majority, highlighted the difficulties that arise when primacy is given to the interests of the prisoner (para 111):

"One solution would be to disclose the information to the prisoner's representative and, if possible, to require the informant to give evidence, even though this would risk putting his life or health in jeopardy. That solution would be, to say the least, unattractive and might well give rise to significant issues under articles 2 and 3 of the European Convention. The other solution would be for the Board to exclude from their consideration any evidence which could not be safely disclosed to the prisoner or his representative. In other words, the Board should close their eyes to evidence, even though it would be relevant to the decision which Parliament has charged them to take for the protection of the public. That solution too would be - again, to say the least - unattractive and, moreover, hard to reconcile with the Board's statutory duty not to direct a prisoner's release on licence unless they are satisfied that it is no longer in the interests of the public that he should be confined."

Unfortunatley this latter point undermines Lord Woolf’s view that (para 80):

"The Board can refuse to pay any attention to the information that the individual could provide. This would mean, however, that the Board could be in breach of its express statutory duty. So it is my view that the information should only be disregarded if there is no other way in which the prisoner's fundamental right to be treated fairly can be protected."

Lord Woolf’s approach is an attempt to apply the procedure taken to ensure fairness to the accused in criminal trials where the prosecution seeks to refuse full disclosure, set out in R v H (above), to proceedings of the Parole Board. In trials, the ultimate issue is the adequacy of the tendered proof of guilt, and if the prosecution considers that disclosure ordered by the court in the interests of trial fairness should not be made because of the need to protect an informant, then it can elect not to proceed with its case. But in proceedings before the Parole Board, the safety of the community is the dominant interest. Discontinuance of the proceedings is not a solution because the prisoner’s case would not be heard. The dilemma is that a serious risk to a member of the public might be grounds for non-disclosure to the prisoner, and for ignoring the information about that risk in the interests of "fairness".

The minority judges, Lords Bingham and Steyn, placed primacy on the need for fairness to the prisoner. The SAA procedure was no substitute for full disclosure. Lord Steyn (para 88) summarised it:

"Taken as a whole, the procedure completely lacks the essential characteristics of a fair hearing. It is important not to pussyfoot about such a fundamental matter: the special advocate procedure undermines the very essence of elementary justice. It involves a phantom hearing only."

He went so far as to quote from Kafka’s "The Trial" (para 95), in a passage that was obliquely (and, some might say, rather bitchily) criticised by Lord Rodger (para 110) as an inapposite reference that tended to trivialise a difficult problem.

It may be that the real difference between the majority and the minority in Roberts is on how abstract the issue before the House was. All judges recognised that the circumstances of each individual case have to be considered in deciding whether the adopted course was fair to the prisoner. The minority may have attempted to pre-emptively reject the SAA procedure before being able to see whether it worked in this case.

Ordinary self-control

Six days before Timoti v R was decided, applying the Rongonui interpretation of provocation, the Privy Council addressed the English law of provocation in Attorney-General for Jersey v Holley [2005] UKPC 23 (15 June 2005). Because of the need to sort out inconsistent decisions of the House of Lords and the Privy Council, the Board in Holley consisted of 9 members. It turned out that three of them, all with considerable criminal law experience, dissented. In the result, the majority took the same approach as had the New Zealand Court of Appeal (by a majority) in R v Rongonui [2000] 2 NZLR 385. Accordingly, the standard of self-control is fixed at that which the ordinary person has, and the level of provocation is to be assessed taking into account such matters as are relevant including, where appropriate, features peculiar to the defendant.

In Holley the Privy Council was dealing with law that was the same as that which applies in England. Plainly, the intention was to overrule (so to speak) the House of Lords majority decision in R v Smith (Morgan) [2001] 1 AC 146.

There is an air of unreality about distinguishing between the effect of provocative acts or words on the accused’s actual self-control, on the one hand, and the effect of those acts or words on the level of provocation he experienced, on the other. While the conceptual model applied in the Holley and Rongonui cases has a pleasing elegance, its use must be reviewed in the light of changes in the law concerning homicide. When the sentence for murder was mandatory life imprisonment, whereas life imprisonment was the maximum for manslaughter, there was some point in having the "partial defence" of provocation. Now, with the sentence for murder being a maximum of life imprisonment, provocation could be better placed as a matter relevant to sentencing. However, one should acknowledge that this is to ignore the symbolic significance of the terminology describing the offence. If provocation was limited to being a matter relevant to sentence for murder or manslaughter it could be understood in a more flexible sense than it is as a partial defence to murder.

Update: the partial defence of provocation has been repealed in New Zealand, from 8 December 2009.

June hiatus

Your blogger is on vacation. Back in July.

Evidence Bill (5)

What assistance in interpreting the proposed evidence legislation will the courts be able to obtain from the common law?

In the absence of any statement from the Attorney-General to Parliament that the Evidence Bill conflicts with the Bill of Rights, it is reasonable to expect that ambiguities and obscurities of the kind discussed in previous blog entries in this series may be resolved by courts with the assistance of cases interpreting the Bill of rights. An example is the relative importance of fairness to the accused, as compared with fairness to the prosecution or fairness to a witness. Given the origins of the Evidence Bill in the Law Commission’s proposed Evidence Code, we are justified in having some suspicions about the Evidence Bill’s claims about its own status.

Clause 5 gives a starting point from which this topic can be explored:

5 Application
(1) If there is an inconsistency between the provisions of this Act and any other enactment, the provisions of that other enactment prevail, unless this Act provides otherwise.

The question is, therefore, is there some other provision in this Bill that overrides the Bill of Rights and the law that has evolved interpreting the Bill of Rights? Clause 10 refers to the common law:

10 Interpretation of Act
(1) This Act---
(a) must be interpreted in a way that promotes its purpose and principles; and
(b) is not subject to any rule that statutes in derogation of the common law should be strictly construed; but
(c) may be interpreted having regard to the common law, but only to the extent that the common law is consistent with---
(i) its provisions; and
(ii) the promotion of its purpose and its principles; and
(iii)the application of the rule in section 12.
(2) Subsection (1) does not affect the application of the Interpretation Act 1999 to this Act.

Accordingly, to decide whether the right of the accused to a fair trial takes precedence over the right of the prosecution to a fair trial, we may have regard to the common law (which has established the primacy of the accused’s right to a fair trial), and then qualify that position if required to do so by the provisions of the Evidence Bill. If, then, the Evidence Bill does not state what the relationship of these rights is, the common law would apparently remain operative.
This appears to be consistent with clause 12:

12 Evidential matters not provided for
If there is no provision in this Act or any other enactment regulating the admission of any particular evidence or the relevant provisions deal with that question only in part, decisions about the admission of that evidence---
(a) must be made having regard to the purpose and the principles set out in sections 6 to 8; and
(b) to the extent that the common law is consistent with the promotion of that purpose and those principles and is relevant to the decisions to be taken, must be made having regard to the common law.

Thus the problem we are concerned with has to be resolved by the common law, to the extent that it is consistent with the purposes and principles in cl 6 to 8. The relevant provision here is cl 6:

6 Purpose
The purpose of this Act is to help secure the just determination of proceedings by---
… (b) promoting fairness to parties and witnesses

Although the point is arguable, this legislative purpose is not necessarily inconsistent with the common law’s ranking of the importance of the interests in a fair trial.

[Update: the Evidence Bill, in a revised form, was enacted in November 2006 as the Evidence Act 2006, its provisions to come into force at dates to be specified by the Governor-General in Council. The purposes of the Act, in s 6, have been expanded to include "providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990". This makes it clear that the Evidence Act is to be interpreted to give effect to the accused's absolute right to a fair trial.]

Another area in which the common law may remain important is the reliability of hearsay evidence. The common law developed the rule against hearsay, and its exceptions, in an effort to ensure that relevant evidence is reliable. Reliability is also of central concern to the Evidence Bill’s proposed reform of the law concerning hearsay. In particular, cl 18 provides:

18 Admissibility of hearsay
(1) A hearsay statement is admissible in any proceeding if---
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; …

What, for example, will be the status of the common law rules concerning the hearsay statements of those who act in concert with the accused in pursuance of a pre-arranged plan? These rules are referred to by various names, in particular as the pre-concert exception, and they apply not just to conspiracy cases, but also to any case where the hearsay statement was made by a person apparently in pursuance of a common plan.

In Canada, where the pre-concert exception has been stated in more precise terms than it has in New Zealand, the Supreme Court has recently held that these rules are in fact reliability rules, applicable under the reformed hearsay law: R v Mapara [2005] SCC 23 (27 April 2005). It is therefore likely that if the Evidence Bill is enacted in its present form in this respect, the common law pre-concert rules would remain applicable and could continue to be developed.

Evidence Bill (4)

The need to avoid a substantial miscarriage of justice is the pervasive criterion for the correctness of decisions, considered individually and collectively, made by the trial judge. It is undoubtedly true, as Lord Rodger recently observed in relation to fairness, that the appellate court may have the advantage of a clearer perspective on whether a substantial miscarriage of justice has occurred: Holland v HM Advocate (Devolution) [2005] UKPC D1 (11 May 2005), para 41. It is therefore a natural, and widespread practice throughout the common law jurisdictions, for appellate courts to have to consider whether any miscarriage of justice that had occurred was indeed substantial. If it was not, appeals will be dismissed. Trial judges, absorbed in their task of trying to make the law work, will naturally bear in mind this ultimate criterion.

Substantial miscarriages of justice are currently seen as being of two types. The first arises where error at trial deprives the accused of a reasonable chance of an acquittal. This does not necessarily mean that the trial was unfair, as it includes situations of freshly obtained evidence which do not impugn the fairness of the trial, only the correctness of its result. Other examples of loss of a reasonable chance of acquittal may involve trial unfairness. The second type of substantial miscarriage of justice does invlove trial fairness. It includes cases where the course taken resulted in bias, actual or perceived, and cases where the trial was not according to law. In this second type of substantial miscarriage of justice, loss of a reasonable chance of acquittal is irrelevant, as even a person who is patently guilty is entitled to trial according to law: Randall v R [2002] UKPC 19 (16 April 2002); [2002] 1 WLR 2237 (PC), at 2251 para 28.

Thus the two elements, loss of a reasonable chance of acquittal, and loss of the right to a trial that is fair to the accused, are of primary importance. This should be reflected in the overarching provisions of evidence law.

In its application to criminal proceedings, the Evidence Bill falls short of recognising the primacy of these elements. Clause 6 states:

6 Purpose
The purpose of this Act is to help secure the just determination of proceedings by---
(a) providing for facts to be established by the application of logical rules; and
(b) promoting fairness to parties and witnesses; and
(c) protecting rights of confidentiality and other important public interests; and
(d) avoiding unjustifiable expense and delay.

The expression "fairness to parties and witnesses" does not recognise the ranking of the importance of fairness to the accused, to the prosecution, and to witnesses.

[Update: the Evidence Bill was enacted, in revised form, as the Evidence Act 2006. Its purposes have been expanded by inserting in s 6 the following purpose: "providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990". This requires the Courts to recognise the absolute nature of the accused's right to a fair trial.]

Again, cl 8, referred to in the second instalment of this series of blog entries, states:

8 General exclusion
In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will---
(a) have an unfairly prejudicial effect on the outcome of the proceeding; or
(b) needlessly prolong the proceeding.

This does not explain the point of view from which fairness is to be assessed. It is fairness to the accused that has primary importance.

[Update: the Evidence Act 2006, has a revised form of cl 8, adding the following as s 8(2): "In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence." This should, together with the reference to the Bill of Rights in s 6, above, incorporate the requirement that the trial must be fair to the accused into the weighing exercise, making it the overriding requirement.]

It is not clear that the inherent jurisdiction of the court to act so as to prevent an abuse of its process will come to the rescue of the primary elements:

11 Inherent powers not affected
(1) The powers inherent in a court to regulate and prevent abuse of its procedure are not affected by this Act except to the extent that this Act provides otherwise.
(2) Despite subsection (1) a court must have regard to the purpose and the principles set out in sections 6 to 8 when exercising inherent powers to regulate and prevent abuse of its procedure.

[Update: the Evidence Act 2006 replaces subclause (1) of cl 11 with the following, as s 11(1):
"(1) The inherent and implied powers of a court are not affected by this Act,
except to the extent that this Act provides otherwise."]

It is unsatisfactory for the fundamental elements to be obscured by this vagueness.

The relationship between the legislation and the common law powers to prevent abuse of process are clearer in the Australian uniform Evidence Act 1995 (C’th), s 11 of which provides:

General powers of a court
(1) The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment.
(2) In particular, the powers of a court with respect to abuse of process in a proceeding are not affected.

The Australian legislation, however, is also unsatisfactory in that its general provisions fail to distinguish fairness to the accused from fairness to the parties, and they give overarching importance to the flawed weighing of probative value against unfairly prejudicial effect (see the second blog entry in the present series).

It seems that the ideal legislative model has yet to be constructed. This is hardly surprising in this rapidly developing area of the common law. Many of the leading cases have been decided since the current project to revise our evidence law began.

Evidence Bill (3)

The third of the evidence topics requiring the exercise of judicial judgment is the method by which judges act to ensure the fairness of the trial for the accused. It is beyond dispute that the accused has the right to a fair trial, and that this right is essential, fundamental and absolute.

The need for fairness at trial may require the judge to give warnings to the jury about matters such as lies allegedly told by the accused; the risks associated with particular categories of witnesses such as accomplices, children, or people with impairments that may affect the reliability of their evidence; identification evidence; and delayed complaints about sexual matters.

I will consider here how the Bill addresses the subject of judicial warnings about the significance of lies allegedly told by the accused. The relevant provision is:

120 Judicial warnings about lies
(1) This section applies to evidence offered in a criminal proceeding that states a defendant has lied either before or during the proceeding.
(2) If evidence of a defendant's lie is offered in a criminal proceeding tried with a jury, the Judge is not obliged to give a specific direction as to what inference the jury may draw from that evidence.
(3) Despite subsection (2), if, in a criminal proceeding tried with a jury, the Judge is of the opinion that the jury may place undue weight on evidence of a defendant's lie, the Judge must warn the jury that---
(a) the jury must be satisfied before using the evidence that the defendant did lie; and
(b) people lie for various reasons; and
(c) the jury should not necessarily conclude that, just because the defendant lied, the defendant is guilty of the offence for which the defendant is being tried.
(4) In a criminal proceeding tried without a jury, the Judge must have regard to the matters set out in paragraphs (a) to (c) of subsection (3) before placing any weight on evidence of a defendant's lie.

The Bill departs from the Law Commission’s proposal in its Evidence Code, cl 110(3), by the omission of the requirement for a warning if the defence asks that one be given.

Potential shortcomings of these proposals are:

• Omission of a requirement for the judge to consult with counsel on the need for a lies direction before summing up. [Update: the Evidence Act 2006 revises this by inserting in subsection 3 the requirement that the Judge must give a lies warning if the defence so requests.]
• Omission of a requirement to direct the jury to ignore the alleged dishonesty unless they (ie jurors individually, not the jury collectively) are sure that the defendant lied. Clause 120(3)(a) does not indicate what the jury should do if they are not satisfied the defendant lied.
• Omission of a direction that the jury must be satisfied to the standard of beyond reasonable doubt that the defendant lied before they can take the dishonesty into account.
• Omission of the need to give illustrations of why people might lie for reasons that do not support the prosecution case: to bolster a true defence, to protect somebody else, to conceal some other conduct which is not the subject of the proceedings, panic, distress, confusion.
• Omission of a distinction between dishonesty that is only relevant on the issue of the defendant’s credibility, and dishonesty that lends support to the prosecution case.
• Omission of a direction that the dishonesty can only support the prosecution case if the jury is sure beyond reasonable doubt that there is no innocent reason for it.

I have drawn these "shortcomings" by comparison with the model directions issues by the Judicial Studies Board in the United Kingdom.

No one can deny that the topic of lies directions has been troublesome for judges. There is a risk that efforts to simplify will result in departure from what is appropriate.

One can see how difficult the subject is by looking at Zoneff v R (2000) 112 A Crim R 114 (HCA), where 4 judges held that the giving of a lies direction had been a substantial miscarriage of justice because it gave unfair emphasis to the alleged lies, while the fifth judge, dissenting, held that a lies direction should indeed have been given, but that it had been given wrongly here, although that error did not amount to a substantial miscarriage of justice.

My view is that Cl 120 of the Bill, if indeed the topic of lies is to be included, should be revised to conform to the practice in the United Kingdom, although a further point emerges: the UK legislation, the Criminal Justice Act 2003, does not deal with how juries should be directed about lies. The search for perfection continues, with the task of announcing the current best practice being that of the Judicial Studies Board. It is not yet the time to set this law in legislation. The Australian uniform Evidence Act 1995 (Cth) also omits specifying the contents of lies directions.

Treating correctly evidence that alleges the accused told lies can be vital to the fairness of trials. What is appropriate will vary with the circumstances of each case, and the matter may best be left for the judge to deal with as part of the task of ensuring that the trial is fair to the accused.

Evidence Bill (2)

The second area of admissibility requiring exercise of judgment has been traditionally formulated as the balancing of probative value against the risk of illegitimate prejudice to the accused that would arise as a result of admission of the challenged evidence. This formula is reflected in clause 8 of the Bill:

8 General exclusion
In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will---
(a) have an unfairly prejudicial effect on the outcome of the
proceeding; or
(b) needlessly prolong the proceeding.

The meanings of probative value and prejudicial effect are indicated in clause 39, which deals with a topic commonly the subject of such balancing, called at common law similar fact evidence:

39 Propensity evidence offered by prosecution about defendants
(1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
(2) When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.
(3) When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
(a) the frequency with which the acts, omissions, events, or
circumstances which are the subject of the evidence have occurred:
(b) the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(c) the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(d) the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f) the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.
(4) When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,---
(a) whether the evidence is likely to unfairly predispose the
fact-finder against the defendant; and
(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

The essence of illegitimately prejudicial evidence, as seen from cl 39(4) above, is that it deprives the accused of a fair trial, by causing bias or improper use of evidence.

The balancing of probative value against the risk of illegitimate prejudice has caused great difficulty in practice, because it is a fallacy to say that probative value is something that can be put in opposition to the accused’s right to a fair trial. These are not things that can be weighed against each other.

Useful guidance can be obtained from the recent evidence law reforms in England. Whereas the Law Commission of England and Wales, in its Report of October 2001, "Evidence of Bad Character in Criminal Proceedings", proposed a draft Bill containing , in clause 8, the weighing of risk of prejudice against probative value, that proposal was not enacted. The Criminal Justice Act 2003[UK], s 101(3), contains the revised law:

"The court must not admit evidence … if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

This avoids the fallacious weighing, although it may be accused of vagueness as to how much unfairness is sufficiently adverse to require exclusion of the evidence. That point will be considered in the next blog entry in this series on the Evidence Bill.

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.