Revising history

Where a trial has, in the opinion of an appellate court, involved a miscarriage of justice, the appeal against conviction should be allowed,

"Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

These statutory words are copied in many jurisdictions throughout the common law world. The High Court of Australia has recently given its attention to their meaning in Weiss v R [2005] HCA 81 (15 December 2005).

One of the fundamental problems faced by those who have to interpret texts of any real vintage (this one is early 20th century), is whether to try to determine what those who used the language intended it to mean then, and to apply that meaning now, or, whether to give the text the meaning that best serves the interests of society now.

The High Court of Australia in Weiss used the former approach, on the rather spurious basis that this was necessary as a way of rejecting interpretations that would, in effect, result in all appeals being allowed wherever there was any error (miscarriage of justice) at trial, and interpretations that are based on a perceived need to protect a "right" to trial by jury by avoiding the appellate court’s substitution of its own verdict for that of the jury at a new trial. These reasons for the Court's approach are spurious because the currently accepted approach to the proviso (albeit not fully worked out) does not require retrials merely because error is found to have occurred at the original trial: the requirement is that the error affected the outcome of the trial.

Having gone that far with history, using it as justification for attacking a misperceived fault, the High Court then changed tack, emphasising (para 31) that it is the language of the statute, not secondary sources or materials that matters. However, the Court had, by its view of history, set itself on a new interpretative course. But this cannot disguise the real question, namely, which approach to determining the meaning of the statutory language is appropriate, historical meaning or current policy?

Three fundamental propositions were stated, para 39:

"Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt."

These, it might be thought, are not particularly informative. They are intended to be borne in mind by appellate courts when they apply what may now be called the Weiss approach to the proviso: the court must make its own assessment of the whole of the record of the trial to decide whether it proved the accused’s guilt beyond reasonable doubt (para 41). The proviso can only be applied (ie it is a necessary, but not always a sufficient condition – as indicated next - for application of the proviso) if the court (para 44)

"… is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt …"

However, the proviso should not be applied in some cases (para 45):

"… there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind."

Pursuant to this approach, the appellate court acts as a substitute jury, albeit one that has not seen or heard the witnesses. Compensating for that absence of contact with the witnesses, the appellate court is apparently to be particularly mindful of the high standard of proof.

Well, how did the High Court deal with the case before it in this appeal?

The issue, on this approach, came down to whether a reasonable doubt about the accused’s guilt could have existed in view of a contest between whether a confession by him in his (second) police interview was made as a result of improper inducement by a police officer. The miscarriage of justice at trial had been wrongful admission of evidence of the accused’s bad character. That is, could the accused’s explanation of why he made the confession have been rejected because of the miscarriage of justice?

Put this way, it would probably appear to most people that there should be a re-trial. However, the High Court remitted the case to the Court of Appeal (Victoria) so that it could carefully examine the record of the trial in the light of the approach to the proviso it laid down (para 57):

"… one question for the Court of Appeal was whether, considering all of the evidence at trial, these matters of character could be put aside as unimportant side issues when viewed in the context of the whole trial, particularly as the evidence in the trial included the powerful testimony of confessions to police which the appellant did not contest making, although he sought to explain how they came about. If they could, attention could focus upon whether the videotaped confession (which the appellant had undoubtedly made) established, beyond reasonable doubt, his guilt of murder. Or was there a reasonable possibility that he had made a false confession?"

With respect, it is difficult to imagine how evidence suggesting the accused has little appreciation of the difference between right and wrong can possibly be ignored in a contest of credibility between the police officer and the accused.

The cumbersome Weiss approach to the proviso may lead a court to overlook the obvious. It is an unnecessary rejection of a century of judicial progress, without a demonstration of any particular problem, let alone a search for a less drastic remedy.

If an appellate court does not apply the proviso, it may order a new trial. It therefore seems strange, given this ability to return the case to a jury, for Weiss to require the court to ignore what effect an error might have had (or, the absence of an error might have) on the jury - the current approaches - and instead focus (if "focus" is the word for such an obscure exercise) on the court's perception, taking into account the guilty verdict, of the likelihood of guilt.

Furthermore, Weiss, perhaps unintentionally, emphasises the difference between the broad approach taken to matters that come before appellate courts pursuant to the royal prerogative (Mallard v R [2005] HCA 68 (15 November 2005), blogged here 24.11.05, not cited in Weiss), and the narrower approach to those that come pursuant to the ordinary criminal appeals procedure. Under both Mallard and Weiss, the court must consider all of the evidence. But under the Mallard (prerogative) approach, the court is not restrained by the view of the facts that must have been taken by the trial jury. One might wonder why, on an ordinary criminal appeal, as held in Weiss, the jury's view should be a constraint. Whether it is good policy to maintain such a distinction is doubtful. Republican Australians might be surprised to learn that they get better quality justice via the Queen.

The more, the merrier

How straight-laced are Quebeckers? One would have thought this was a silly-season question. And yes, the people of Quebec are called Quebeckers. In R v Labaye [2005] SCC 80 (21 December 2005) the Supreme Court of Canada had to decide whether acts of indecency included group sex by consenting adults in an environment where any spectators were also voluntary on-lookers. The larger a court, the more likely it is that there will be dissent. Here, the court split 7 – 2.

The majority held that in the circumstances the group sex was not indecent. What is remarkable about this is the complexity of the legal test for indecency, which was summarised at para 62 as:

"Indecent criminal conduct will be established where the Crown proves beyond a reasonable doubt the following two requirements:

1. That, by its nature, the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by, for example:
(a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or
(b) predisposing others to anti-social behaviour; or
(c) physically or psychologically harming persons involved in the conduct, and

2. That the harm or risk of harm is of a degree that is incompatible with the proper functioning of society."

The vetting of members of this private club (L’Orage Club, Montreal) meant, held the majority, that there was no such harm as was required by this test.

The minority placed less emphasis on the private nature of the club, and applied what had hitherto, in their view, been the traditional test, the community standards. Interestingly, they referred to JS Mill (para 105) as underpinning the majority’s emphasis on the need for harm, and they criticized this on the grounds that behaviour may be criminalised without there being an identifiable harm:

"In the case at bar, the offence relates to social morality. To place excessive emphasis on the criterion of harm will therefore make it impossible to give effect to the moral principles in respect of which there is a consensus in the community."

Noting that evidence indicated that only 2 to 5% of Quebeckers engaged in group sex (para 138), the minority concluded (para 153):

"Our analysis does not permit us to conclude that the Canadian community would tolerate the performance, in a commercial establishment to which the public has easy access, of group sexual activities on the scale of those that took place in this case."

The Canadian Charter of Rights and freedoms was not cited in this case, but it makes the rights and freedoms it guarantees "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" (clause 1). Relevant Charter rights are (clause 2) freedom of conscience, thought, belief, opinion, peaceable assembly, and association. (And see the comparable provisions of NZBORA, s 5, 13, 14, 16, 17.) Even if the minority in Labaye is correct, and the Canadian community would not tolerate group sex in the circumstances in which it occurred in that case, the further question should be whether that intolerance is justified in a free and democratic society. The harm-based analysis applied by the majority surely has a role here.

A "companion case" was also decided yesterday by the same Court, with the same split in judges: R v Kouri [2005] SCC 81 (21 December 2005). Here, the question was whether group sex in a bar was indecency, where entrance was restricted to people who agreed that they were "liberated". Incongruously, entrance was also restricted to "couples", a rather charming nod in the direction of propriety. Important for the majority was the effective restriction of entry to those who knew very well what they were in for.

I should add a technical point. In Kouri, the minority judges dissented by using the same reasoning they employed as the minority in Labaye. Strictly speaking, the law was established in Labaye, and the minority were compelled to follow it. If they were to reach a conclusion different from that of the other Judges, they should have done so by applying lawful reasoning. For example, they may have decided that there was sufficient social harm arising from the relevant conduct to make it criminally indecent. Alternatively, and admittedly, impractically, the minority would should have required argument on whether the law as established in Labaye should be changed.

The evil that men think

If I am offended, not by what I see a person doing, but by what I think he might do later, have I observed behaviour that the criminal law calls "offensive"?

Further, if I have gone out of my way to see what the person is doing, can I complain? He might have been unobservable by all but the most inquisitive.

Obviously, judges may disagree over what amounts to offensive behaviour. They may also disagree over whether offensive behaviour is nevertheless insufficiently serious to warrant the intervention of the criminal law.

Cases on questions such as these are encountered by all first-year law students. Far from being confined to serve as minor intellectual irritants for novices, such matters also cause disagreement among senior judges.

In R v R (2005) 21 CRNZ 610 (CA) the issues included whether it was offensive behaviour for the appellant to have concealed himself in his curtained van and taken pictures of uniformed schoolgirls as they arrived at school. He could only be observed with difficulty, and was observed by a police officer who went up to the van and peered through a gap in the curtains. One might wonder, at this point, whether such conduct by the police officer might itself be offensive. In any event, one of the Judges in the Court of Appeal, who is not named in the Court’s single judgment, thought the appellant’s behaviour was not, in law, "offensive". The conduct was, this Judge thought, amenable to innocent interpretation (para 39):

"Had the photographer been, for example, a police officer taking photographs for the purposes of a criminal investigation or a paparazzi [sic] taking photographs for a newspaper or magazine, the observable behaviour would have been identical."

But would it necessarily be sufficient to know more? If there was evidence, for example, that the photographs were to be used for sexual gratification, would the taking of the photographs then be offensive? This point did not require consideration by the majority in R, because they found that the behaviour was, albeit marginally, offensive.

This point was, however, considered in Rowe v Police 12/12/05, John Hansen J, HC Dunedin CRI 2005-412-000051. The same Mr "R" took photographs in the University Library. Perhaps learning from his earlier brush with the law, he did not, on this occasion, resort to subterfuge. While his actions were in plain view, there was insufficient evidence in the case to prove what he was photographing. On the point of whether the behaviour would be offensive if more was known, the Judge observed (para 46):

"…It is the action that must be offensive. As a matter of logic, if the observer has no knowledge of what is being photographed the content of the photographs cannot be used to create the necessary level of offence. But the Judge has gone further. She has referred to the downloading of material to the laptop, and possibly the other circumstances as well, as creating in the mind "the need to determine legitimacy". It is unclear from [this] how the need to determine legitimacy would arouse feelings of anger and/or potential disgust [the legal test for offensiveness], or what is the evidential basis for such a finding. While it may raise a need to investigate further, it falls short of what is required in the criminal sense."

His Honour also noted that in the earlier case, the Court of Appeal had referred to the possibility that evidence of the defendant’s purpose "may be relevant in considering and weighing to strike the balance between competing interests" (para 47). That, however, was said in relation to purpose that is evident to those observing the behaviour (see paras 31-34 of R v R, above).

Unfortunately, the Supreme Court refused leave to appeal from the decision in R v R, because the question of law was not framed in sufficiently general terms to come within the Court’s jurisdiction: Rowe v R [2005] NZSC 40 (23 June 2005).

This discussion highlights the importance of the distinction between the impact on us of our own thoughts, and the impact on us of other people’s conduct.

Proof or believability

One of the difficult distinctions in the law of evidence concerns the use of statements made by a witness on a previous occasion to contradict what the witness now says in court. On the one hand, such statements impeach credibility: the court may place less reliance on what the witness now says, because the witness has said something different before. In this situation, reducing reliance on what the witness now says does not amount to positive proof to the contrary. On the other hand, such statements could be treated as proof of what they say, and the court might conclude that the facts were as the witness had previously said, not as the witness now says.

The Supreme Court of Canada, in R v Henry [2005] SCC 76 (15 December 2005), has held that an accused’s prior testimony at a miscarried trial may be used, to contradict evidence he gives at a subsequent trial, as proof of the truth of what was previously said. At para 48 it was put this way:

" …If the contradiction reasonably gives rise to an inference of guilt, s. 13 of the Charter [the right not to be compelled to give evidence; comparable to s 25(d) New Zealand Bill of Rights Act 1990] does not preclude the trier of fact from drawing the common sense inference."

The different approaches were summarised in para 8:

" … both parties view with scepticism the idea that the trier of fact can truly isolate the purpose of impeaching credibility from the purpose of incrimination. They agree on the problem but disagree about the solution. The appellants’ solution … is that unless the statements used to contradict the present testimony were innocuous when made at the first trial, and still innocuous at the second trial, they should be altogether excluded, i.e. even for the limited purpose of challenging credibility. … Otherwise, they fear, the contradictions may well be used by the trier of fact for the forbidden purpose of incrimination. The Crown also recognizes the troublesome nature of the distinction but … says that fair trial considerations absolutely require that the contradictions in the evidence of an accused be exposed. The Crown then goes further … in saying that the trier of fact should be able to make of the contradictions what it wishes, including drawing an inference of guilt, and indeed that a realistic appraisal of the trial process permits no other conclusion, human nature being what it is."

The resolution of this problem is reasonably easy where, as in Henry, the court is concerned with prior testimony, as opposed to out of court, unsworn, statements. Testimony is advanced for its truth, so if a witness had previously given evidence to one effect, it seems appropriate to use that on a later trial as evidence of its truth where it conflicts with what the witness now testifies.

In Australia, s 60 of the uniform evidence Acts has been interpreted to allow prior testimony to be used as proof of its truth, at least as far as intended, as opposed to unintended, assertions are concerned (Lee v R (1998) 195 CLR 594 (HCA)).

In New Zealand, clause 33 of the Evidence Bill sets out proposed "truthfulness rules", including a rule that the rules about hearsay evidence "do not apply to exclude evidence about reputation that relates to truthfulness". This formula, "do not apply to exclude", appears to mean that such evidence may be admissible for a hearsay purpose, that is, as evidence of its truth. The position here, however, is far from clear. If a court transcriber (judge's associate) were to be called as a witness to give evidence of what the accused had said at an earlier trial, to rebut what the accused has said at the present trial, that would not be hearsay evidence as defined in the Bill, because it would be evidence about a previous statement by a witness (see cl 4 definition of "hearsay statement"). Again, while this evidence would be admissible on the issue of credibility, it is not clear whether it is also admissible for the truth of what the accused previously said.

Currently, s 10 of the Evidence Act 1908[NZ] covers the position, insofar as it permits witnesses to be cross-examined about their previous inconsistent statements. Judicial opinion on whether the previous inconsistent statements admitted under this provision are evidence of their truth has varied from the mid-nineteenth century. Cross on Evidence, para 9.53, states that the present law is that they are not proof of their truth, citing Tepaki v Police [1967] NZLR 337, and at para 9.54 the learned authors say that the rationale for this is "simply another instance of the pseudo-logic occasionally indulged in by lawyers", while they acknowledge that previous statements made on oath may raise different issues than those made under differing circumstances.

The "rule" in Browne v Dunn

Can the rules of evidence, that have been designed to ensure fairness, be ignored if the judge feels that it would be more fair to ignore them? Certainly not, says the High Court of Australia in MWJ v R [2005] HCA 74 (7 December 2005).

In MWJ an inconsistency emerged with evidence that had been given by the complainant, when a subsequent witness gave evidence. Could the accused rely on the apparent inconsistency to undermine the complainant’s evidence? The inconsistency was "apparent" because the complainant was not re-called for questioning on the topic to see if the inconsistency was maintained.

This raised what is referred to in general terms as the rule in Browne v Dunn (1893) 6 R 67, which is that fairness usually requires that if a witness’s testimony is to be disputed, the grounds for that dispute should be put to that witness. The High Court noted that this rule has been applied in criminal law in many jurisdictions, including New Zealand, citing Gutierrez v R [1977] 1 NZLR 192, (1996) 14 CRNZ 108 (CA). In that case, the New Zealand Court of Appeal held

" … the rule is simply one of fairness. Has a reasonable opportunity been given to enable the evidence in question to be properly assessed? It is the responsibility of prosecuting counsel or a prosecutor who proposes to attack the credibility of defence witnesses, including the defendant, to cross-examine in a way which makes it plain that the relevant evidence is challenged and gives the witness a fair opportunity to answer the challenge. Such cross-examination however may not be necessary if from what has gone before or from the circumstances of the case it is fairly made plain that the truthfulness of particular facts given in evidence is not accepted, and an adequate opportunity to meet the challenge has otherwise been afforded.

"If evidence relevant to credibility is not so tested when it ought to be, it is likely to be unreasonable for the trier of fact to make an adverse finding in respect of credibility."

The High Court of Australia was unanimous in MWJ that in the circumstances of the case there was no miscarriage of justice and the appeal against conviction was dismissed. Two judgments were delivered, and they differ slightly on the point of when it is appropriate to give weight to the apparent inconsistency in the evidence.

Gleeson CJ and Heydon J held (para 19):

"In the present case, there was no obligation on trial counsel for the appellant to question the complainant about whether there had been more than one incident of sexual abuse at Sutcliffe Street, and there was no obligation to seek to have the complainant recalled for that purpose. Why would counsel for the appellant want to run the risk of eliciting further evidence of uncharged criminal acts by her client? That, no doubt, left the trial judge in a difficult position when he came to evaluate a criticism (in final address) of the complainant's credibility based on the supposed (although, in truth, non-existent) inconsistencies. It did not mean that counsel could not put her argument to the judge. As Doyle CJ said, it was a matter to be taken into account in assessing the weight to be given to the supposed inconsistencies. In the event, it was the fact that counsel chose (with reason) to leave the evidence in a state of uncertainty that undermined her submission about inconsistency. That was a forensic choice for counsel to make."

The penultimate sentence of this extract has difficulties. It was not for counsel for the accused to ask for re-call of the complainant; it was for counsel for the prosecution to offer (or, more accurately, to apply for) re-call of the witness. If counsel for the defence opposed that, less weight might have attached to subsequent reliance on inconsistencies. This is how the other Judges in MWJ, Gummow, Kirby and Callinan JJ, saw it (para 41):

"…As soon as the inconsistency emerged, and the trial judge rejected the appellant's objection to the evidence intended to be adduced from the complainant's mother [whose evidence had appeared to be inconsistent with that of her daughter, the complainant], it was open for the prosecution to offer to tender the complainant for further cross-examination. Had that happened it would then, and only then have been for the appellant, to decide whether to embrace the offer or not. If he had not, then and only then would the criticism that the Court of Criminal Appeal made of his conduct have been valid."

This seems to be the better view, but one might still wonder whether it is really accurate. If it would be unfair to permit recall of the complainant in view of, for example, the obligation on the prosecution not to split its case, then it would be unfair to ignore the apparent inconsistency. Each case will turn on its own facts, but fairness is the all-pervasive consideration.

What, then, if the rules of evidence appear to operate unfairly? This point was addressed in the three-judge joint judgment, para 37:

"Something should first be said of the trial judge's criticism of the appellant's failure, in effect, to give the complainant an opportunity of explaining away the inconsistency arising out of her mother's evidence. The criticism is ill-founded for these reasons. The complainant had already given her evidence when the mother gave her evidence. It was not for the appellant to know and anticipate, by cross-examining the complainant, what the mother would say about the complainant's assertions of complaints of multiple offences at Sutcliffe Street. It was not for the appellant to iron out inconsistencies in the case for the prosecution. Secondly, his Honour erred in holding that if there were competition between the avoidance of unfairness to the complainant and a "technical view of the rules of evidence" … (whatever that in the circumstances means), the former must prevail. It is not for a judge to depart from the rules of evidence on such a basis. The rules are designed to ensure fairness to all, certainly not least, to an accused in a criminal trial."

The difficulty in this apparent contrast between rules and fairness, is that the so-called rule in question is itself more of a principle than a rule. It is, as the New Zealand Court of Appeal said in Gutierrez, above, one of fairness. While it is usually called the "rule" in Browne v Dunn, that is simply shorthand non-technical language.

How civilised are we?

What use of torture is tolerable? More precisely, what risk that evidence tendered to the court was obtained by torture is tolerable? The House of Lords has answered, if on the balance of probabilities there was no torture, that is acceptable: A v Secretary of State for the Home Department [2005] UKHL 71 (8 December 2005).

This means that a risk of torture, just falling short of tipping the balance, can be ignored. It is notable that this case involved 7 Law Lords, and they split 4-3 on this difficult issue. Of course, they unanimously held torture to be repugnant to the common law. The minority, Lords Bingham, Nicholls and Hoffmann, held that evidence was inadmissible if the court was left with a real risk that it had been obtained by torture.

We should remember that in R v McCuin [1982] 1 NZLR 13 (CA) it was held that statements by accused persons should be excluded unless the court was sure beyond reasonable doubt that they had been made voluntarily.

As we often see in cases considered in this blog over the last 16 months, the choice between formalist and pragmatic reasoning is fundamental. This is illustrated in A’s case by Lord Hope, para 119:

"… it would be unrealistic to … demand that each piece of information be traced back to its ultimate source and the circumstances in which it was obtained investigated so that it could be proved piece by piece, that it was not obtained under torture. The threshold cannot be put that high. Too often we have seen how the lives of innocent victims and their families are torn apart by terrorist outrages. Our revulsion against torture, and the wish which we all share to be seen to abhor it, must not be allowed to create an insuperable barrier for those who are doing their honest best to protect us. A balance must be struck between what we would like to achieve and what can actually be achieved in the real world in which we all live. Articles 5(4) and 6(1) of the European Convention, to which Lord Bingham refers in para 62, must be balanced against the right to life that is enshrined in article 2 of the Convention."

Lord Carswell reasoned as follows (para 158):

"After initially favouring the Bingham test, I have been persuaded that the Hope test should be adopted … in determining whether statements should be admitted when it is claimed that they may have been obtained by the use of torture. Those who oppose the latter test have raised the spectre of the widespread admission of statements coming from countries where it is notorious that torture is regularly practised. This possibility must of course give concern to any civilised person. It may well be, however, that the two tests will produce a different result in only a relatively small number of cases …. Moreover, as my noble and learned friend Lord Brown of Eaton-under-Heywood points out in para 166 of his opinion, intelligence is commonly made up of pieces of material from a large number of sources, with the consequence that the rejection of one or some pieces will not necessarily be conclusive. While I fully appreciate the force of the considerations advanced by Lord Bingham in paras 58 and 59 of his opinion, I feel compelled to agree with Lord Hope's view in para 118 that the test which he proposes would, as well as involving fewer practical problems, strike a better balance in the way he there sets out."

Reflecting on this case, one is tempted to think that, as the courts have to respond to the difficult issues raised by the State’s responses to terrorism, a law peculiar to the demands of this sort of warfare will develop. It may well be that where public safety is a major consideration, a criterion for admissibility set at the level of the balance of probabilities can be acceptable, whereas in criminal cases of the ordinary kind the McCuin approach will remain appropriate.

Another point, on which laws about terrorism may properly set themselves apart, is the extent to which investigation of crime may be lawful, even though it is based on information obtained through torture. In ordinary criminal cases, the lawfulness of investigatory techniques, such as the use of interception devices, is assessed by ignoring information that had been improperly obtained. For example, if there is insufficient information available to support the granting of an interception warrant once improperly obtained information is ignored, the warrant is invalid: R v Crowe [1996] 3 NZLR 415; (1996) 13 CRNZ 708 (CA). But terrorism raises different values. As Lord Bingham said:

"68. … If the police were to learn of the whereabouts of a ticking bomb it would be ludicrous for them to disregard this information if it had been procured by torture. No one suggests the police should act in this way. Similarly, if tainted information points a finger of suspicion at a particular individual: depending on the circumstances, this information is a matter the police may properly take into account when considering, for example, whether to make an arrest.
"69. In both these instances the executive arm of the state is open to the charge that it is condoning the use of torture. So, in a sense, it is. The government is using information obtained by torture. But in cases such as these the government cannot be expected to close its eyes to this information at the price of endangering the lives of its own citizens. Moral repugnance to torture does not require this."

Judicial supervision of executive acts, however, can produce what in A was called a "mismatch" between information properly considered by the executive, and information properly admissible in evidence. While the Law Lords considered this mismatch was an acceptable inevitability (Lord Bingham at para 48 said "The common law is not intolerant of anomaly"), one might wonder how persistent this mismatch will be; this, indeed, is the central question. The law tends to adopt pragmatic compromises, as Lord Bingham pointed out in para 16:

" … there is an obvious anomaly in treating an involuntary statement as inadmissible while treating as admissible evidence which would never have come to light but for the involuntary statement. But this is an anomaly which the English common law has accepted, no doubt regarding it as a pragmatic compromise between the rejection of the involuntary statement and the practical desirability of relying on probative evidence which can be adduced without the need to rely on the involuntary statement."

On another point, but one that arises from this sort of legislative endorsement of illegal investigatory procedures, Lord Bingham let slip an old fashioned remark. At para 51 he said:

"… it would of course be within the power of a sovereign Parliament (in breach of international law) to confer power … to receive third party torture evidence."

Well, would it? Historical understanding of sovereignty supports this view, but the development of strong international law, with which this case is largely concerned, is incompatible with the notion that Parliament can make any law whatsoever. Further, the implications of Lord Bingham’s remark are that the British people may embrace barbaric behaviour, condemning themselves in the same terms as the Law Lords, and all civilized people, condemn torture.

Similar issues, to those considered in A's case, could arise in New Zealand under the Terrorism Suppression Act 2002, which (to summarise some of its aspects) allows the Prime Minister to use any relevant information to designate as a terrorist any person or organisation (s 30), and which creates offences of involvement with terrorists (s 13). On prosecution, a dispute may arise over the applicability of the definition to a particular person or organisation, and some inquiry into the source of the Prime Minister's information may be necessary: s 39(4) "In determining the proceedings, the Court may take into account any relevant classified security information available to it, even though that information has not been disclosed to or responded to by other parties to the proceedings."

Synchronicity

The House of Lords and the New Zealand Supreme Court decided similar cases on 1 December 2005. Each concerned the rights of persons who had been convicted, and each involved sentencing. They differed, in general terms, in that the English case concerned a transitional question arising from a legislation change, whereas the New Zealand case concerned the effect of a change in the circumstances of the offender, namely his age, on his eligibility for the indeterminate sentence of preventive detention. Both cases were decided by applying considerations of fairness.

In R (on application of Hammond) v Secretary of State for the Home Department [2005] UKHL 69 (1 December 2005) a literal reading of the relevant legislation required that the punitive period of a sentence of life imprisonment must be set by a High Court Judge on the papers and without an oral hearing. It was held that this should be read as being subject to an implied condition that an oral hearing must be permitted where that is necessary to comply with the prisoner’s right to a fair trial under art 6(1) of the European Convention on Human Rights.

Interestingly, this implication of an exception to an absolute legislative provision was accepted by the Secretary, once it had been decided that the absolute provision breached the Convention. There was, accordingly, no need to reconsider this approach to interpretation, which had been established in R v A [2002] 1 AC 45 (HL), where it was held that such implication was required by s 3(1) of the Human Rights Act 1998[UK], which provides:

"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."

International law was also relevant in Mist v R [2005] NZSC 77 (1 December 2005). Here, preventive detention could be imposed on an offender, who was otherwise eligible, if he was "not less than 21 years of age". The provision did not specify whether this age was to be taken as at the date of the commission of the offence, or at the date of sentencing.

The Court was unanimous that the answer was the age of the offender at the time of the offence. Three Judges decided this on a narrow point: the interpretation of s 4(2) of the Criminal Justice Act 1985 (legislation which has since been replaced with provisions clear on the point). The other two Judges, Elias CJ and Keith J, agreed with that, and added broader considerations, which included the need to read s 4 consistently with art 15 of the International Covenant on Civil and Political Rights. Gault J summarised the opposing arguments in a way that suggested they were finely poised, but at para 62, he expressed agreement with a generous interpretation of s 4(2) "in conformity", apparently meaning the requirement of consistency with rights to which Elias CJ and Keith J had referred.

Eilas CJ and Keith J referred to the need for fairness and due process (paras 28, 29) and to developments in human rights law over the last 30 years (para 39), and to the need to give individuals the full measure of their rights (para 45).

Implicit in this approach is compliance with s 6 of the New Zealand Bill of Rights Act 1990, which is as follows:

"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."

The Bill of Rights is, according to its statement of purpose, "An Act – … (b) To affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights".

Article 15(1) of that Covenant states:

"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby."

The first sentence of this is echoed in s 26(1) NZBORA. The second and final sentences are reflected in s 25(g) of NZBORA, although the wording differs slightly:

"(g) The right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty."

Of course, in Mist it was the offender’s age, not the legislation, that had changed, but Elias CJ and Keith J, and implicitly Gault J, were prepared to apply the applicable provision consistently with art 15.

Significantly, this approach does not involve a close reading of s 6 NZBORA (which, indeed, was not cited in Mist). There was no agonizing over how strongly s 6 compelled an interpretation consistent with rights, and no attempt to contrast the approach required by s 6 NZBORA with the approach required of English courts by s 3 of the Human Rights Act 1998[UK]. The force of international rights law was recognised by three judges as relevant to the interpretation problem in Mist. As in Hammond, the rights-mandated approach to interpretation was accepted, without the need for argument over the strength of the legislative direction to conform to rights.

This has relevance to the forthcoming issue of the standard of proof imposed on the defence by reverse-onus provisions, which is essentially the question on which leave to appeal was granted in R v Hansen [2005] NZSC 74 (24 November 2005). Developments in international rights law have revealed an aversion to interpreting reverse onus provisions as placing legal burdens on the defence. Those developments can be followed in New Zealand without straining the words of s 6 of NZBORA.

Bain, again

Supporters of David Bain will, no doubt, be studying Mallard v R [2005] HCA 68 (15 November 2005). Both started as petitions for the exercise of the Royal prerogative. Just as in R v Bain [2004] 1 NZLR 638, (2003) 20 CRNZ 637 (CA), this was a reference to the court of the question of the conviction of the petitioner, although, in Mallard, the proceedings reached the High Court of Australia on appeal from the determination of the reference by the Court of Criminal Appeal of Western Australia. The equivalent New Zealand provision is s 406 of the Crimes Act 1961. In Bain, the Court of Appeal noted, para 4, that

"A reference under s 406(a) has the effect of an appeal against the convictions so referred. Hence this Court must consider the matters arising as if David Bain was appealing against his convictions a second time."

In Mallard, the corresponding provision was described, at para 6, in the following terms:

"The significance of this history for present purposes, is that the exercise for which s 140(1)(a) of the Sentencing Act 1995 [WA] provides is effectively both a substitute for, and an alternative to, the invocation, and the exercise of the Crown prerogative, an exercise in practice necessarily undertaken by officials and members of the Executive, unconfined by any rules or laws of evidence, procedure, and appellate conventions and restrictions. That history, briefly stated, argues in favour of an approach by a court on a reference of a petition by the Attorney-General to it, of a full review of all the admissible relevant evidence available in the case, whether new, fresh or already considered in earlier proceedings, however described, except to the extent if any, that the relevant Part of the Act may otherwise require."

A significant point concerning the approach of the appellate court in these circumstances (where fresh evidence is relied on by the petitioner) was made in Mallard. This is that it is wrong for the appellate court to view the evidence in a way that is constrained by the verdict that had been reached at trial. At para 10 of Mallard the Court criticised the approach taken by the CCA (WA) whereby limitations were perceived on the court’s jurisdiction to consider the evidence. Instead, the HCA held that the reference of "the whole case" to the appellate court carried no such limitations, and

"…The inhibitory purpose and effect of the words "as if it were an appeal" are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and further, and perhaps most relevantly, to require the Court to consider whether the overall strength of the prosecution case requires the Court to apply the proviso …".

The corresponding New Zealand provision does not use the phrase "the whole case", but it is clear that the meaning is intended to be the same. It refers to "the question of the conviction", and, as with the Western Australian provision, it contrasts that with reference of "any point arising in the case".

It seems fair to say, therefore, that on reference of the conviction, the Court of Appeal should not feel constrained in its view of the facts by the jury’s decision. It is wrong, on this view, to say that because the jury must have accepted certain evidence, that that evidence carries enhanced status for the purposes of determining the reference.

Another indication of the correct approach, stated in Mallard at para 23, is

"It was not for the Court of Criminal Appeal to seek out possibilities, obvious or otherwise, to explain away troublesome inconsistencies which an accused has been denied an opportunity to explore and exploit forensically."

In a separate, concurring, judgment, Kirby J held, para 84, that in a fresh evidence case, the question was whether absence of that evidence

"… could have seriously undermined the effective presentation of the defence case, [as] a verdict reached in the absence of the material evidence (and the use that the defence might have made of it) cannot stand."

Mallard also contains a useful review of the prosecution’s duty of disclosure of evidence to the defence.

In the light of Mallard, the need to reconsider Bain is clear.

Death and certainty

How much formalism is too much? In interpreting statutes, to resolve an ambiguity, judges may focus on the context of the problematic phrase: the paragraph, subsection, and the placing of the section in the scheme of the Act, are considered. In addition, standard tools of interpretation, such as ejusdem generis, and noscitur a sociis, may be used.

Another approach, which may be used in conjunction with this formalistic method, or as an alternative, is the purposive, or pragmatic approach. According to this, the meaning of ambiguous legislation should be determined by reference to what would promote or further Parliament’s purpose in enacting the provision.

There is no consistency in approach to interpreting ambiguous criminal legislation. For example, in R v Secretary of State for the Home Dept; ex p Pierson [1998] AC 539, Lord Steyn said at 585:

"Counsel for the Home Secretary argued that the fixing of the tariff cannot be a sentencing exercise because the judge pronounces the only sentence, ie one of life imprisonment. This is far too formalistic. In public law the emphasis should be on substance rather than form. This case should also not be decided on a semantic quibble about whether the Home Secretary’s function is strictly ‘a sentencing exercise’. The undeniable fact is that in fixing a tariff in an individual case the Home Secretary is making a decision about the punishment of the convicted man."

And, in R v Karpavicius [2002] UKPC 59 (PC) Lord Steyn said, para 15:

"…In a more literalist age it may have been said that the words of s 6(2A)(c) [of the Misuse of Drugs Act 1975[NZ]] are capable of bearing either a wide and narrow meaning and that the fact that a criminal statute is involved requires the narrower interpretation to be adopted. Nowadays an approach concentrating on the purpose of the statutory provision is generally to be preferred: Cross, Statutory Interpretation (3rd ed), 1995, pp 172-175; Ashworth, Principles of Criminal Law (3rd ed), 1999, pp 80-81. This is reinforced by s 5(1) of the Interpretation Act 1999 [New Zealand] which provides that the meaning of an enactment must be ascertained from its text and in the light of its purpose."

We must, then, wonder whether Lord Steyn has consistently taken this pragmatic approach in Smith v The Queen (Jamaica) [2005] UKPC 43 (14 November 2005). Here, the Privy Council split 3-2 on a question of interpretation, and Lord Steyn was part of the majority.

The issue in Smith was the meaning of the phrase "in the course or furtherance of" in the definition of capital murder in Jamaica. There, capital murder (ie where the sentence may be death) occurs where murder is committed "in the course or furtherance of … burglary or housebreaking" (s 2(1)(d) of the Offences Against the Person Act 1864, as amended in 1992).

The facts of Smith were refreshingly brief; they were summarised in the minority judgment, para 18, as "The appellant stood on a ladder against the outside of the deceased's house at night, pulled aside a curtain and a piece of plastic in a window, inserted his head and upper body through the window and struck the deceased a number of blows with a machete as she lay in her bed under the window."

There was no doubt that his entry with felonious intent constituted burglary. The question was whether the murder was in furtherance of the burglary. He committed the burglary with intent of murdering. The minority considered that the murder was therefore committed in the course of or in furtherance of the burglary. This, one might have thought, is the ordinary and natural meaning of the phrase. But no; another interpretation is possible: the offender had a single purpose of murder, and the burglary was in furtherance of the murder, not the other way around, so the murder was not within the definition of capital murder. This was the majority view.

There are two competing public policy justifications. The minority refer, para 23, to the purpose of the section as being:

"…to protect citizens from being murdered in their own homes by intruders who break in at night and to deter offenders from committing such murders. We consider that the legislature could not have intended that an intruder who broke into a house, which he believed to be unoccupied, for the purpose of stealing therein and then, coming upon the occupier, killed him or her, should be guilty of capital murder, but that a person who broke into a house with the express purpose of killing the occupant and did so should not be guilty of capital murder."

On the other hand, the majority refer, para 8 to:

"The vice in these cases, which was thought by …[Parliament] to justify the death penalty, was that the defendant resorted to killing his victim in the course or furtherance of committing the [lesser offence]. It was the wanton and cynical nature of the killing, the debasing in the context of a comparatively minor criminal act of the value that is to be attached to human life, that was regarded as particularly reprehensible."

The majority adhered to authority that required a "duality of purpose" before capital murder was committed: Lamey v The Queen [1996] 1 WLR 902 (PC). Such adherence to precedent is an illustration of formalism being dominant over pragmatism: see Thomas, "The Judicial Process" (2005). Thomas would remove all formalism from the law, whereas the current approach of courts is to employ either formalism, pragmatism, or a blend of them both, as seems appropriate.


This is also illustrated in Lamey, where the Board (which again included Lord Steyn) considered the interpretation of another paragraph of s 2(1) of the Jamaican legislation. This one, (f), includes within the definition of capital murder, any murder committed in furtherance of an act of terrorism. The unanimous judgment refers to the approach to penal statutes:

"6. The starting point in any consideration of section 2(1)(f) must be the fact that its object was to reduce the categories of murder which attracted the death penalty. It follows that a construction which produces little or no reductive effect is unlikely to be correct. Furthermore regard must be had to the general principle that a person should not be penalised and in particular should not be deprived of life or freedom unless under clear authority of law (Bennion's Statutory Interpretation, 2nd Edn. page 574)."

Note the slightly more restrictive approach endorsed here, compared with that taken in Karpavicius, above. In Lamey the conclusion was that paragraph (f) required two intents:

"8. … In their Lordships' view the paragraph requires there to be a double intent on the part of the murderer namely an intent to murder and an intent to create a state of fear in the public or a section thereof."

In Smith, this approach was applied to paragraph (d), and this reasoning is an example of formalist analysis.

Dealing with vagueness

Rights may be expressed in unavoidably vague terms, so how can they be said to be absolute? An example is the right not to be subjected to inhuman or degrading treatment. Does it make sense to say that this right is absolute?

This was the fundamental question that confronted the House of Lords last week in R v Secretary of State for the Home Department, ex parte Adam [2005] UKHL 66 (3 November 2005). It was decided that this right is absolute, once a threshold level of inhuman or degrading treatment has been reached, and that the threshold is relative to the circumstances of each case. Furthermore, the threshold is a high one (except where pain and suffering are deliberately inflicted).

It may be clearer to say that, once treatment can properly be described as inhuman or degrading, then there has been a breach of the right. To say that the threshold is a high one (in particular, Lord Bingham, para 7) is really a way of saying that inhuman or degrading treatment must be relatively harsh. How harsh, depends on the circumstances. On this point, Lord Hope quoted, at para 54, cases from the European Court of Human Rights:

"But the European Court has all along recognised that ill-treatment must attain a minimum level of severity if it is to fall within the scope of the expression "inhuman or degrading treatment or punishment": Ireland v United Kingdom (1978) 2 EHRR 25, 80, para 167; A v United Kingdom (1998) 27 EHRR 611, 629, para 20; V v United Kingdom (1999) 30 EHRR 121, para 71. In Pretty v United Kingdom 35 EHRR 1, 33, para 52, the court said:

‘As regards the types of 'treatment' which fall within the scope of article 3 of the Convention, the court's case law refers to 'ill-treatment' that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.’

It has also said that the assessment of this minimum is relative, as it depends on all the circumstances of the case such as the nature and context of the treatment or punishment that is in issue. The fact is that it is impossible by a simple definition to embrace all human conditions that will engage article 3."

Significantly, the House of Lords in Adam rejected the spectrum analysis applied in the Court of Appeal, pursuant to which the question whether inhuman or degrading treatment amounts to a breach of the right depends on whether it is nevertheless justified, for example by government policy. Lord Brown, while not actually approving the spectrum analysis, came close to applying it by reasoning that the motive for the treatment may be relevant (para 94). Lord Hope, while not expressly distancing himself from Lord Brown’s approach, pointed out, at para 55, that it would be wrong to include government policy in the assessment of the threshold as that would allow proportionality in by the back door.

Given, then, that the concept of inhuman or degrading treatment is not qualified by considerations of government policy, how close can we get to a definition of it? Lord Bingham put it like this, para 8-9:

"… The answer must in my opinion be: when it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life. Many factors may affect that judgment, including age, gender, mental and physical health and condition, any facilities or sources of support available to the applicant, the weather and time of year and the period for which the applicant has already suffered or is likely to continue to suffer privation.
[9] It is not in my opinion possible to formulate any simple test applicable in all cases. But if there were persuasive evidence that a late applicant was obliged to sleep in the street, save perhaps for a short and foreseeably finite period, or was seriously hungry, or unable to satisfy the most basic requirements of hygiene, the threshold would, in the ordinary way, be crossed."

We might like to consider whether this approach is applicable, by analogy, to the determination of fair trial issues. Whether the appropriate circumstances amount to unfairness can depend on the assessment of factors such as whether the accused would be able properly to challenge the prosecution case, and whether the case would be determined by an unbiased tribunal. Once that arises (not: once that threshold is crossed), then there is a breach of the absolute right to a fair trial.

Leaving readers with that thought, I return to celebrating the 25th anniversary of the publication of my first article, which appeared in England, in what was then the leading criminal journal in the common law world, the Criminal Law Review.

Whose verdict?

Appeals against conviction require consideration of whether there has been a substantial miscarriage of justice. This, in turn, can raise two questions: whether the trial was fair, and, whether the accused was wrongly deprived of a real chance of an acquittal. These are independent questions. The latter is often (and wrongly) taken to be an opportunity for an exacting judicial analysis of the evidence, notwithstanding the oft-repeated claim that it is not for the appellate judges to substitute their verdict for that of the jury. R v Bain [2004] 1 NZLR 638, (2003) 20 CRNZ 637 (CA) is a prime example of applying the trained judicial mind to the analysis of the evidence, rather than considering how the jury might have reacted to proposed new evidence.

An interesting observation on the fact that jurors may not apply linear logic to their task of coming to a verdict was recently made by Kirby J (happily siding with the majority) in R v Stevens [2005] HCA 65 (21 October 2005), para 82:

"One assumes that the human mind, and even more the collective mind of a jury, operates in serious decision-making, rationally and reasonably. But the mind does not necessarily act according to linear paths of strict logic. At any time in a criminal trial, several issues are in play. As Callinan J correctly points out [at para 158: "Nor do I think it is an answer in this case to say that one defence, or a direction in respect of it, subsumed another to the extent that the latter needed not to be mentioned or put to the jury in appropriate terms. Different people may have different perceptions of facts. Certain words, or language, or expressions of concepts, may provoke different responses in different people"], different people, especially a group of people, may have different perceptions of facts and of words, expressions and language (such as on being told of the substance of the Code's provisions on accident). The appellant, who was facing, if convicted, the heaviest penalty known to the law, was entitled to have the chance of a favourable response of the jury to the exemption provided by the Code from criminal responsibility for accident, properly explained. The trial judge ought not to have deprived the appellant of that chance."

An example of acute judicial analysis of the trial evidence, this time with a view to discovering whether the accused had been deprived of the right to adequate facilities to prepare a defence, is the judgment of Thomas J in R v Griffin [2001] 3 NZLR 577, (2001) 19 CRNZ 47 (CA). He concluded that on the evidence, lack of opportunity to have a defence expert examine the complainant did not adversely affect the result, and therefore there was no unfairness. That was, with respect, an incorrect melding of the two questions set out above. He may well have been correct to conclude that there had been no loss of a real chance of an acquittal, on the evidence adduced at trial. But, if the trial was unfair there should have been (as the majority held) a substantial miscarriage of justice. Thomas J treated procedural fairness as irrelevant if the verdict appeared to be correct. He allowed pragmatism (or, as he calls it, substantialism) to override the formal requirements of a fair trial. The majority of the Privy Council did the same in R v Howse [2005] UKPC 31 (19 July 2005), blogged here on 23.7.05. In Griffin, the majority held that had it could not be said that, had the error not occurred, the jury would inevitably have convicted, and a new trial was ordered. They did, however, recognise that this consideration of the second question was probably unnecessary, as they had found that the trial had been unfair. They said, para 40, that it was difficult to imagine a case where there would not be a substantial miscarriage of justice after a breach of the relevant right.

Helpful Acts?

Legislation can make the law absurdly complicated. In Tabe v R [2005] HCA 59 (6 October 2005) Australia’s senior judges split 3 – 2 on an issue that should have been simple. When a person is charged with attempting to get possession of a drug, does the prosecution have to prove that he believed that he could do so?

A refreshingly simple person would think the answer obvious. Why would someone try to get something unless he thought he could? Sad to say, in Queensland things are not so straightforward. That State’s Criminal Code, s 24, provides:

"(1) A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.
(2) The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject."

Where this applies, an innocent belief will be a defence if it goes to an essential ingredient of the offence. So, if it is reasonably possible that you thought the thing you were trying to get was some substance you were entitled to have, you would not be guilty of unlawfully attempting to obtain a drug. Fair enough.

Unfortunately, the Drugs Misuse Act 1986 (Q), s 57, makes the position obscure. It provides, in para (d):

"(d) the operation of the Criminal Code, section 24 is excluded unless that person shows an honest and reasonable belief in the existence of any state of things material to the charge."

Seems redundant, you might think. However, one of the cherished ideas in what is called "statutory interpretation" (as if statutes were written in foreign languages) is that the words of an Act are to be given effect because the legislature would not have intended redundancy.

So, the next logical step seems to be to ask, what are the things that s 57(d) calls material to the charge? Section 57(d) appears to be saying that honest and reasonable mistakes about these are matters for the person charged to prove. This would give it an effect beyond that of s 24 of the Code, which may not place a burden of proof on the defendant. So the issue would then be, what does the prosecution have to prove, before the burden shifts to the defence if a mistake is being relied on?

Back to attempting to get possession of a drug. The physical ingredients of the offence were not critical in Tabe. It was not argued, on the facts of the case, that the defendant had not done acts sufficiently proximate to the completion of the offence to amount to an attempt to commit it. It was the mental elements of the offence that were the focus of the dispute.

On first principles, putting aside the judicial reasoning in Tabe, one would have thought that, if belief that the thing is a drug (the essence of the mistake which was, according to s 57(d) for the defence to prove) is not something that the prosecution has to prove, all that the prosecution must prove to establish a prima facie case is the defendant’s intention to perform the acts that he did. This, indeed, is what the majority held (Gleeson CJ in a separate judgment, and Callinan and Heydon JJ in a joint judgment).

The minority (McHugh and Hayne JJ, in separate judgments) saw the issue in two ways. McHugh J focused on the requirement of attempt that the defendant must have had an intention to commit an offence, so that an intention to obtain a drug (and hence a belief that the thing was a drug) was a matter for the prosecution to prove to establish a prima facie case. He also agreed with Hayne J’s approach, which reached the same conclusion by an analysis of the ingredients of possession.

I should point out, here, that none of the judges in Tabe used the expression "prima facie case" except (twice) where it appeared in quotations from another case. It is useful to remember the fundamentals of criminal law. Where an attemptis alleged, it is inevitable, if the prosecution case is to get off the ground, that evidence of belief in the existence of the thing sought, will have to be aduced. In Tabe, (I simplify the facts a little), the defendant thought that an envelope he was collecting contained a drug. It did not, because it had been intercepted by the police and its contents had been replaced with an innocuous powder. Hence the charge was attempt, rather than the full offence of possessing the drug. The evidence in the case included these background matters, and of course established a prima facie intention by the defendant to obtain a drug. Without that evidence, the prosecution could have hardly established a prima facie case by proving that the defendant went to collect an envelope. We would all be on trial, if that were sufficient.

Pragmatism must have motivated the Chief Justice of Australia to deliver the rather ham-fisted justification for his approach (para 20), namely that because most people charged with this claim that their intentions were innocent, that should be a matter for them to prove.

Legislation that speaks briefly can cause problems. Parliament need not try to emulate the Ten Commandments, admirable at least for their brevity. (Horace: "brevis essere laboro, obscurus fio." I try to be brief, but I become obscure.) Getting down to detail, in the tradition of Leviticus, can be appropriate. However this too can be taken too far, as our Sentencing Act 2002 illustrates; it reads like a Dummies guide. But, I digress. It would be appropriate for legislators to remember Cicero’s remark (De Natura Deorum, iii, iv): "The clarity of the case is impaired by arguments."

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."