"Unfair to try" or "to try unfairly"?

Boolell v The State (Mauritius) [2006] UKPC 46 (16 October 2006) illustrates the difference between the questions, (i) whether the trial was, or would be, fair, and (ii) whether it would be fair to put the accused on trial. The case also illustrates how easy it is to confuse these questions.

In Mauritius, the right to a fair trial is expressed, in s 10(1) of the Constitution, in a phrase giving the right to a “fair hearing within a reasonable time by an independent and impartial court established by law”. This has given rise to the question whether an accused can only complain of delay if it has adversely affected his right to a fair hearing. (In contrast, the New Zealand Bill of Rights Act 1990, s 25(b), isolates the right to trial without undue delay, from the separate right to a fair hearing in s 25(a)).

This question, which also arises under Art 6(1) of the ECHR, was resolved by the House of Lords in Attorney General's Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72, where it was held that a breach of the right to a hearing without undue delay can be established without the accused having to show that the trial would be unfair. Consequences of a breach of each right need not, therefore, be the same. In Boolell the Privy Council noted that Lord Bingham in Attorney-General’s Reference (No 2 of 2001) had “quoted with approval the aphorism of Hardie Boys J in the New Zealand case of Martin v Tauranga District Court [1995] 2 NZLR 419, 432: "The right is to trial without undue delay; it is not a right not to be tried after undue delay."” That is to say, undue delay does not give rise to a right not to be tried at all.

On the question of remedies, the Privy Council in Boolell followed Attorney-General’s Reference (No 2 of 2001), holding that a stay of proceedings is not appropriate unless (a) there can no longer be a fair hearing, or (b) it would otherwise be unfair to try the accused (para 31).

I have emphasised the word “otherwise” here to make the point that trial unfairness is only a subset of the set of occasions where it would be unfair to try the accused. In para 38 of Boolell, Lord Carswell, delivering the judgment of their lordships, confuses this point. He deals with a submission that the trial was unfair by applying criteria relevant to fairness in the “otherwise” sense. The “test” – as Lord Carswell called it - as laid down by Lord Bingham at para 25 of Attorney-General’s Reference (No 2 of 2001), is:

“25. The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, but Mr Emmerson contended that the category should not be confined to such cases. That principle may be broadly accepted. There may well be cases (of which Darmalingum v The State [2000] 1 WLR 2303 is an example) where the delay is of such an order, or where a prosecutor's breach of professional duty is such (Martin v Tauranga District Court [1995] 2 NZLR 419 may be an example), as to make it unfair that the proceedings against a defendant should continue. It would be unwise to attempt to describe such cases in advance. They will be recognisable when they appear. Such cases will however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant's Convention right.”

Lord Bingham is not here talking about cases where the trial would be unfair. Lord Carswell’s slip highlights the fact that criteria for determining the fairness of a hearing have yet to be established. My view is that the fairness of a hearing is to be determined by whether it would involve a biased determination of the facts, or an inaccurate application of the law to the facts. Delay may give rise to an unfair trial if it results in the unavailability of witnesses or evidence that could assist the defence. The matters relied on by counsel for the appellant in Boolell, para 38, seem not to involve delay but rather to focus on aspects of the actual conduct of the trial (its length, its interruptions, restrictions imposed on the conduct of the defence, and comments made by the judge that suggested bias). The Privy Council may well have been correct to conclude that, in the circumstances of this case, these did not amount to trial unfairness. In holding that the appellant’s right to a trial within a reasonable time had been breached (para 37), the appropriate remedy was the declaration of the breach and the quashing of the sentence of imprisonment, with a fine being substituted, although complexities concerning how the quantum should be calculated are not explored.

NZ criminal law may be fair!

Readers of these blogs will be pleased to see that criticisms of Moloney v New Zealand (see blog entry for 3 May 2006, and the article developed from that, “A little unfairness goes a long way” [2006] NZLJ 210) turned out to be essentially the reasons that an appeal from that decision was allowed today: New Zealand v Moloney [2006] FCAFC 143 (5 October 2006).

The Full Court (5 judges) of the Australian Federal Court held that the judge had been wrong to conclude that differences, as between New Zealand and Australia, in rules of procedure and evidence concerning the conduct of criminal trials, permitted the conclusion that a trial in New Zealand would be unfair. Overruling him, the Full Court made the following points:

• The close relation between New Zealand and Australia, reflected in the abbreviated extradition procedure which is analogous to that which applies within Australia, permits an assumption of trial fairness in New Zealand (paras 2, 21, 22, 36, 37).

• The approach to warning juries in cases concerning historical allegations of sexual abuse is not significantly different as between Australia and New Zealand: both have the objective of a fair trial, and both recognise that warnings must be tailored to the circumstances of the trial. It was wrong to assume that a judge in New Zealand would not give a warning (212, 215, 216, 219, 221, 222, 224, 226).
  

• As far as trials involving multiple complainants are concerned, it is a matter for the trial judge in New Zealand to decide whether severance is appropriate or whether similar fact evidence is admissible. Such differences as there are between the laws of Australia and New Zealand on these points is little more than a different formulation of the judge's discretion to exclude unfairly prejudicial evidence. Conclusions about the likelihood of joint trials were unwarranted at this stage (228, 229, 231).
  

It has been announced that the unsuccessful respondents in this case will seek leave to appeal to the High Court of Australia. [Update: on 16 October 2006 the High Court of Australia declined leave to appeal.]
 

Challenging detention pending bail

 A prompt and automatic opportunity to challenge the lawfulness of detention is a key provision to prevent arbitrary detention and to protect the person against the risk of ill-treatment and abuse of power by officials: McKay v United Kingdom [GC] [2006] ECHR 820 (3 October 2006). This is distinct from the opportunity to apply for bail, which must also be afforded within a reasonable time. If the person is arbitrarily detained, he must be released immediately and no question of his being encumbered with bail obligations arises.

Sometimes people who are arrested are brought before judicial officers who lack the power to inquire into the lawfulness of detention. In McKay the Grand Chamber observed that this had occurred in some cases from Malta (para 37).

A question arises, for people in New Zealand, whether the Habeas Corpus Act 2001, which requires that these applications be made to judges of the High Court, complies with the equivalent right to that considered in McKay. This right, in Article 9 para 4 of the ICCPR, and in s 23(c) of the Bill of Rights Act 1990, the former being unspecific as to promptness, while the latter requires absence of delay. The risk of non-compliance with this right arises because High Court judges are not the judges before whom a person appears initially. Of course, once the High Court is aware of an application under the Habeas Corpus Act 2001, it gives the matter top priority (s 9), but a lapse of time may nevertheless occur.

For example, a person arrested on a Friday may not be brought before a court until Saturday when a community magistrate, District Court Registrar, or Justice of the Peace may be sitting. There may be no opportunity to provide legal advice other than through a duty solicitor. The person will, if held in custody, be remanded to the following Monday, when the judicial official will be a District Court Judge. Legal aid counsel may be assigned on that occasion, but in some cases a bail application will not be able to be heard. For example, a person who has a previous conviction for a drug dealing offence can only apply to the High Court for bail on a fresh drug dealing charge: Bail Act 2000, s 16. Some High Court Registries restrict bail applications to 2 afternoons a week, and not all High Courts in the country have judges available throughout the year.

There is thus the risk of breach of s 23(c) of the Bill of Rights:

“23 Rights of persons arrested or detained

(1) Everyone who is arrested or who is detained under any enactment—
(a) Shall be informed at the time of the arrest or detention of the reason for it; and
(b) Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and
(c) Shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.”

There is a difference here between the expression “without delay” (admittedly, more strict than is required by ICCPR), and the phrase in s 23(3) “as soon as possible”:

“(3) Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.”

In McKay, the ECtHR held, para 33:

“The judicial control on the first appearance of an arrested individual must above all be prompt, to allow detection of any ill-treatment and to keep to a minimum any unjustified interference with individual liberty. The strict time constraint imposed by this requirement leaves little flexibility in interpretation, otherwise there would be a serious weakening of a procedural guarantee to the detriment of the individual and the risk of impairing the very essence of the right protected by this provision (Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145 B, § 62, where periods of more than four days in detention without appearance before a judge were in violation of Article 5 § 3, even in the special context of terrorist investigations).”

And at, para 34, the Grand Chamber emphasised the significant procedural point that review of the legality of detention must be automatic:

“The review must be automatic and cannot depend on the application of the detained person; in this respect it must be distinguished from Article 5 § 4 which gives a detained person the right to apply for release [for example, on bail]. The automatic nature of the review is necessary to fulfil the purpose of the paragraph, as a person subjected to ill-treatment might be incapable of lodging an application asking for a judge to review their detention; the same might also be true of other vulnerable categories of arrested person, such as the mentally frail or those ignorant of the language of the judicial officer (e.g. Aquilina v. Malta [GC], no. 25642/94, § 49, ECHR 1999 III).”

Periods of delay of more than four days between commencement of detention and review of the legality of the detention will be unlikely to meet international standards. There may be a need to extend powers of review, akin to habeas corpus applications, to the court of first instance, with corresponding enhancement, if necessary, of judicial training.

Going international

Strip searches that are not carried out in compliance with proper safeguards to protect the dignity of those being searched may attract remedies under international law. This occurred in Wainwright v United Kingdom [2006] ECHR 807 (26 September 2006), where the European Court of Human Rights awarded damages, which could not be obtained under domestic law.

Wainright concerned strip searches of visitors to a prison, carried out with the aim of preventing the entry of drugs. The officials who carried out the searches did not comply with rules that had been promulgated, and therefore they were not within the terms of Article 8, para 2, of the European Convention on Human Rights as being “necessary in a democratic society”. In reaching this conclusion the European Court noted that domestic law in the UK, as held in the House of Lords decision in this case, did not provide a remedy for negligent breach of privacy. This deficiency amounted to a breach of Article 13 of ECHR and the Court awarded damages. The actual sums were fairly modest, the Court noting that it does not make aggravated or exemplary damages awards.

In other countries, issues of this sort may be dealt with by the United Nations Committee on Human Rights, if the relevant domestic law did not provide a remedy. The International Convention on Civil and Political Rights has provisions concerning the right not to be subjected to inhuman or degrading treatment (Article 7), and the right to have one’s private life respected (Art 17). The First Optional Protocol to the ICCPR enables individuals claiming to be victims of violations of ICCPR rights to bring communications to the Human Rights Committee, which may, ultimately, “forward its views to the State Party concerned and to the individual” (Art 5 para 4). While this falls short of the corresponding declaration in Art 13 of ECHR that “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority …”, and Art 41 “…the Court [ECtHR] shall, if necessary, afford just satisfaction to the injured party”, the forwarding by the Human Rights Committee of its views is a significant matter.

In Taunoa v Attorney-General [2006] NZSC 30 (12 April 2006) the Supreme Court granted leave to appeal to four appellants who claimed that, as prisoners, they had been subjected to breaches of s 9 and 27 of the New Zealand Bill of Rights Act 1990, the questions being whether there had been such breaches and, if so, what remedy was appropriate. One of the preconditions for bringing a communication to the Human Rights Committee is that domestic remedies, if any, must be exhausted. So, if unsuccessful before the Supreme Court, Taunoa may enter the international arena.

Negligent Barristers

Negligent barristers will – or should, despite their negligence – sit up straight and contemplate the Supreme Court’s removal of barristers’ immunity from suit for negligence: Chamberlains v Lai [2006] NZSC 70 (11 September 2006). The Court upheld the Court of Appeal decision in respect of civil cases, and extended it to include criminal cases.

Questions that this raises include:

• What sort of conduct can attract this liability: voluntary service at a citizens’ advice bureau, duty soliciting by barristers, pro bono services, preliminary advice which does not lead to engagement as counsel, advice concerning plea, applications for bail, discovery and other preparatory work, legal research, conduct of courtroom representation?
• Does a final decision by a court in the proceedings create an estoppel? To what extent would a collateral challenge to such a decision, as part of an action for negligence, amount to an abuse of process?
• What is the standard of conduct that amounts to negligence? Does it, for example, equate to professional misconduct?
• How should damages be assessed? If the client is guilty, does he have a duty to plead guilty at an early stage so as to mitigate any loss that might be suffered by endeavours (negligently conducted) to secure an acquittal?
• Can the barrister enter into a contract with the client to limit liability for negligence?
• Is this liability retrospective, and, if so, how far back does it extend?

The Supreme Court does not here seek to answer these questions, but rather recognises that developments in the law will be necessary as they are raised in particular cases.

Some indications of what may happen are given. In their joint judgment, Elias CJ, Gault and Keith JJ touched on issue estoppel, double jeopardy and abuse of process (paras 58-59), and concluded that it would be unwise to limit the potential use of the power to strike out proceedings to prevent an abuse of process (para 61). While a collateral challenge to a subsisting conviction may be an abuse of process, that will not always be so, and it is necessary to recognise that there may be exceptions (para 66). Tipping J disagreed on this point, to the extent of preferring a rule preventing collateral challenges to subsisting convictions (para 189), but Thomas J sided with the majority, citing his published views on the advantages of pragmatism over formalism (para 207).

Other matters for future consideration are mentioned in para 75:

" … Following the lifting of the immunity, it may well be necessary to consider whether reasons of legal policy impact upon liability for the negligent conduct of criminal proceedings. The extent to which the public interest requires redress to be obtained only or principally within the remedies provided by the criminal justice system itself will have to be considered. It will be necessary to consider too whether there are any limits to liability."

The standard of care was alluded to in para 78:

" … The application of liability "should not stifle advocates’ independence of mind and action in the manner in which they conduct litigation and advise their clients" [citing Moy v Pettman Smith [2005] 1 WLR 581, 599 per Lord Carswell]. Nor should the standard of care imposed be such as to force advocates into defensive lawyering which is contrary to the public interest in the fair and efficient operation of the criminal justice system. And establishing that negligence is causative of loss will not be easy in circumstances where the direct cause of loss is the imposition of an independent judgment."

Tipping J observed that an action for negligence could hardly succeed if an appeal against conviction had not succeeded (para 190):

"The decision of this Court in Sungsuwan v R [2006] 1 NZLR 730 makes it clear that the conduct of counsel, whether negligent or not, can afford grounds for setting aside a conviction if the Court of Appeal is of the view that there is a real risk that the verdict of the jury is unsafe. If that cannot be shown on appeal, counsel’s conduct could hardly later be found on the balance of probabilities to have led to an unsafe verdict. Real risk is a significantly lower standard to meet than more probable than not."

And he added, at para 200-201:

"The problems are likely to be more substantial in the criminal arena. Significant policy issues can be forecast. Should the law of torts award damages for negligence when the loss derives from a lawful period of imprisonment? Should the law impose on barristers a duty of care when other participants in the system, albeit for different reasons, owe no such duty or are immune from any liability for a breach?

"[201]Contribution problems may be substantial. Seldom is a conviction likely to be set aside solely on the grounds of counsel’s negligence. The Judge may have had some responsibility to guard the accused against certain types of negligence by counsel. While some of these points, and no doubt others, could be invoked in favour of retaining barristers’ immunity, I consider they are better addressed as facets of legal policy in the context where they truly belong, rather than as support for a blanket immunity for barristers."

So, we enter upon interesting times. And, potentially lucrative ones for insurance companies.

Checking the foundations

On this, the second anniversary of the start of this blogsite, when I am about to comment on a case where the meaning of "beyond reasonable doubt" was examined, and remembering that yesterday our Supreme Court ruled on the accused’s right to a fair trial, one might be excused for thinking that criminal law had only recently been invented. Surely, these fundamentals must have been settled centuries ago?

Well, criminal law is a living thing, with its basic assumptions and rules constantly under review. It involves the handling of complex concepts, and other disciplines, especially psychology, can make a significant contribution to our perceptions of what is currently appropriate.

A Full Bench of the New Zealand Court of Appeal, in R v Wanhalla 24/8/06, CA321/05, considered whether there should be adjustments to the standard way in which judges should direct juries on what the criminal standard of proof, proof "beyond a reasonable doubt" means.

In a joint judgment, William Young P, Chambers and Robertson JJ held that, although this was not intended to be a mandatory formula, the following direction should be of assistance in many cases (para 49):

"The starting point is the presumption of innocence. You must treat the accused as innocent until the Crown has proved his or her guilt. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his or her innocence.

"The Crown must prove that the accused is guilty beyond reasonable doubt. Proof beyond reasonable doubt is a very high standard of proof which the Crown will have met only if, at the end of the case, you are sure that the accused is guilty.

"It is not enough for the Crown to persuade you that the accused is probably guilty or even that he or she is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events and the Crown does not have to do so.

"What then is reasonable doubt? A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.

"In summary, if, after careful and impartial consideration of the evidence, you are sure that the accused is guilty you must find him or her guilty. On the other hand, if you are not sure that the accused is guilty, you must find him or her not guilty." [emphasis added]

It was also held that best practice is to avoid expressing reasonable doubt in terms of percentages (a point on which Glazebrook J had some doubt: para 107, 109), and not to use the "domestic analogy" of telling jurors that they should approach the matter as if they were making an important decision in their own lives (the Judges were more clearly unanimous on this point).

In her judgment, Glazebrook J embarked on a scholarly analysis of various jury studies that psychologists and legal experts have carried out. Her main concern was that jurors may be too inclined to be tolerant of prosecution failures of proof, ie too reluctant to recognise a doubt as reasonable. Some studies have found that jurors tend to think in terms of estimates of probabilities. Proof of the prosecution case to the standard of a likelihood of 75% often seems to be thought sufficient (some jurors think 50% is sufficient!), and Glazebrook J pointed out (para 107, 109) that it is arguable that 100% proof should be required, as the reasonable doubt standard is closer to that than it is to 75%.

Hammond J (who has the advantage over Glazebrook J of having been an experienced trial judge) felt that the arguments for and against revision of the standard approach to direction on reasonable doubt were evenly balanced. In fairness to the Crown, absolute certainty is not required (para 165), and therefore Hammond J did not favour the mathematisation of directions. He noted that experience has shown the need to emphasise that the standard is higher than even probabilities (para 167). He agreed that the direction proposed in the joint judgment (para 49, above) would meet the needs of the vast majority of cases, yet also observed that the actual direction in a particular case should be left to the discretion of the trial judge (para 171, citing Privy Council authority for that).

My concern is with one aspect of the direction in the joint judgment (above), a concern not mentioned by any of the Judges. This focuses on the word I have italicised. A direction that the jury "must" find the accused guilty if sure that the accused is guilty, is contrary to an important constitutional safeguard. This safeguard, which in practice is one of those things that dare not speak its name, and so is never mentioned although ever-present, is the power of the jury to perversely acquit the accused. Occasions for them to do this may arise if they feel that something deeply objectionable occurred in the police investigation of the case, or in the presentation of the prosecution evidence. Authority for this is discussed in R v Wang, blogged here on 14 February 2005.

The absolute right to a fair trial

The Supreme Court of New Zealand has accepted that the accused’s right to a fair trial is absolute, that breach of this right is a substantial miscarriage of justice so that the proviso cannot be applied, and a conviction obtained in an unfair trial must be quashed regardless of the strength of the evidence against the accused: Condon v R [2006] NZSC 62 (23 August 2006) at paras 76 - 78. The Court also reasoned that, if the error had not occurred, it could not be said that the outcome of the trial would have been the same, therefore there was unfairness in the trial and that accordingly a substantial miscarriage of justice had occurred (para 89).

This places unfairness in its proper position in relation to substantial miscarriage of justice, a position from which there had seemed to be some slippage in the Court’s earlier decision in Sungsuwan v R (blogged here 26 August 2005).

Also important in Condon is the Court’s indication of the burden of proof on fairness issues (para 81). The case concerned breach of the accused’s right to legal representation, a right described as one of the constituent elements of, or subsidiary rights to, the accused’s right to a fair trial (para 76). It held that if the court found that the subsidiary right was breached, the onus shifted to the prosecution to satisfy the Court that the trial was not unfair.

Although the Court did not specify standards of proof (more accurately, standards of persuasion) here, it did indicate that it would not easily accept that the trial had been fair: para 79.

Further indication of the importance of the right to a fair trial is the Court’s recognition that, even if the subsidiary right was not found to have been breached, the overall fairness of the trial would be examined, although in such a case the burden would be on the appellant (para 80):

"… if the accused makes an informed choice to go to trial without a lawyer, or is rightly refused legal aid, or by conduct creates a situation in which, on a proper balancing of the various interests, further delay in the holding of the trial is not to be tolerated, there will have been no breach of the s 24 rights. But even in such circumstances an appeal Court must still examine the overall fairness of the trial, as was done in the New Zealand cases cited earlier, because the right to a fair trial cannot be compromised – an accused is not validly convicted if the trial is for any reason unfair. If there has been no breach of the appellant’s right to representation, because the trial Court was properly "satisfied" in terms of s 30(2) of the Sentencing Act, the conviction will not be set aside unless the appellant can persuade the Court that the trial was unfair because the defence could not, in the particular case, have been adequately conducted without the assistance of counsel…."

We have seen in these blogs that pragmatism (which would lead to the dismissal of appeals against convictions where there was no doubt about the appellant’s guilt) and formalism (which places primacy on the need for compliance with procedural fairness at trial) have been emphasised differently by judges in all the jurisdictions considered here. Although Condon concludes by linking outcome in the absence of error (pragmatism) with substantial miscarriage of justice (para 89), much of the jurisprudence the Court accepts is formalist. It is clear that the Court endorsed the dominance of the formalist approach and that even if the evidence against the appellant had been overwhelming, the absence of a fair trial would have amounted to a substantial miscarriage of justice.

On a long view of the developments in this area of the law, Condon can be seen as settling a fundamental difference between judges on the status of a criminal trial. The view that has been rejected saw criminal trials as no different from civil trials, except for the standard of proof of the ultimate issue, and also except for a special rule concerning proof to the same high standard of the voluntariness of confessions if they were to become admissible evidence. From this perspective, trials function as a search for the truth, a search which must proceed to its conclusion despite circumstances that create unfairness to either side. While judges will try to be fair to each side, other interests may require something less than absolute fairness to the defence. Examples of such other interests might be the privacy interests of a victim, the public interest in bringing those accused of crime to trial (this sometimes being phrased, less circumspectly, as the public interest in bringing offenders to justice), and, more vaguely, the interests of justice, which was seen as an overarching consideration. This view of criminal trials was taken by the authors of our two leading textbooks on the Bill of Rights.

The alternative view, accepted by the Supreme Court in Condon, is that criminal trials are sui generis, with special rules needed to accommodate the considerations peculiar to criminal law. Criminal trials are not necessarily concerned merely with the question of guilt. They can have to deal with the problem of how to react to misconduct by officials in the gathering of evidence. This required development of the concept of abuse of process, and the recognition of two senses in which the term “fairness” is used. Public policy fairness has become the grounds on which wrongfully obtained evidence may, after a balancing of relevant interests, be ruled inadmissible. This is distinct from the second sort of fairness: trial fairness. No balancing of interests occurs to diminish the accused’s right to a fair trial, which is absolute.

Establishing the broad characteristics of the accused’s right to a fair trial (ie that it is absolute and essential), is only the start of securing this right. Giving content to the meaning of “fair trial” comes next. I have, in recent publications, developed the absolutist position by suggesting that a fair trial is one where the law is correctly applied to facts that are determined without bias. There is, inevitably, some circularity in this, insofar as the law is assumed to be fair. That is why, in New Zealand, the Evidence Bill should be attracting our attention. Some of its current provisions will operate unfairly to an accused. A central concept in trial fairness is the absence of bias, whether bias in the application of the law, or bias in the determination of the facts. Judicial directions to the jury are the final opportunity in a trial to prevent unfairness to the accused, and a rigorous approach to them is essential. Proposals to water them down must be resisted.

Public debates on admissibility

Should the courts encourage public discussion of judicial decisions about the admissibility of evidence? This is one of the important questions raised by the New Zealand Court of Appeal yesterday in TVNZ v Rogers 7/8/06, CA12/06.

Because the decision in Rogers is likely to be appealed to the Supreme Court, I will not discuss the facts of the case in any but the most general of terms. In a criminal trial, evidence of a confession by R was ruled inadmissible and he was acquitted. Subsequently, a television programme was proposed, in which the video of the confession, which the police had given to TVNZ, would be played. The present proceedings concern whether an injunction should issue to prevent that publication.

The decision to rule the confession inadmissible at the criminal trial was, noted the Court of Appeal, not uncontroversial in law. The authorities did not all point in the same direction, and the method of weighing the competing values may have been flawed (see the joint judgment of O’Regan and Panckhurst JJ at [27], and the separate concurring judgment of William Young P at [127]). It is public discussion of this admissibility decision that the Court of Appeal seems to be encouraging.

The joint judgment makes this observation:

"[88] Although there is some substance in the Full Court’s [ie the court below] view that the content of the videotape may not add to informed public debate, it must be borne in mind that an evaluation of the reliability of disputed evidence, and of its importance to the prosecution case, is an aspect of the balancing exercise ordinarily required following a finding that evidence was obtained in breach of a suspect’s rights. The Court should be prepared to expose its reasoning process to scrutiny, to avoid perceptions of an attempt to stifle debate about its decision or about the conduct of the police officers whose conduct was under scrutiny in that decision."

And William Young P added:

"[128] I agree that the underlying issues can be debated without the videotape being shown on national television. But experience shows that arguments are usually more easily understood where they are contextualised. An esoteric argument about the way the New Zealand Bill of Rights Act is applied by the Courts becomes far more accessible to the public if the implications can be assessed by reference to the concrete facts of a particular case. In that context, to prohibit the proposed broadcast of the videotaped confession and reconstruction would necessarily have the tendency to limit legitimate public discussion on questions of genuine public interest."

Well, let us examine that thought. If public discussion is to have a point, it must be fully informed. To be fully informed, it needs to be acquainted with the different considerations that may be relevant to admissibility decisions. This requires some regard for the functions of the criminal trial, and the appropriate balance between truth seeking, on the one hand, and the extent to which police misconduct in the obtaining of evidence should be tolerated, on the other. Two extremes are apparent: admit all probative evidence, or, exclude all evidence tainted by the misconduct of officials.

Members of the public can discuss and decide where on the continuum between these extremes they individually lie. It is plain that unanimity could not be expected, and people may find themselves taking different positions depending on the nature of a particular case.

This is where the utility of publishing the details of R v Rogers (ie the criminal case) may be questioned. It is the sort of case that is likely to attract an extreme position on admissibility. It illustrates a very small part of the continuum of cases, and so is likely to illuminate only a small part of the proposed admissibility debate. This gives rise to synecdoche: the taking of a part of something to represent its whole. The entire question of how admissibility of wrongfully obtained evidence should be decided is not fairly posed by an extreme example.

The Court of Appeal is alert to the public’s tendency to employ synecdoche. In a decision delivered the same day as Rogers, by a differently constituted bench ("bench": metonymy and synecdoche!), the Court of Appeal in Marfart and Prieur v TVNZ 7/8/06, CA92/05 said:

"[62] One of the complaints made - with considerable force - against contemporary media is that what it routinely does in forming mental pictures is to use synecdoche: the portrayal of a part for the whole. (See Miller The Anatomy of Disgust (1998)). It is a common and lamentable part of entering the public gaze that the media tends to promote one salient feature of an incident (often glorified as a 30-second sound
byte), with unfortunate and unfair results. Not the least is a refusal (or at least a misportrayal) which fails to respect the fact that people may well be different in private than in public."

Pragmatism will dictate different approaches to admissibility decisions, depending on who is looking at the decision. Lawyers will look for an approach that is predictable in outcome, so that the likely prospects of a successful challenge can be assessed. Judges will look for an approach that balances the multitude of relevant considerations – interests of the accused, the prosecution, victims, the public, and the overarching need for a fair trial. Members of the public, as interested observers of the administration of justice, will look for an approach to admissibility decisions that reflects their own values.

The central idea is that of "instrumental truth" in the sense used by William James in his second lecture, entitled "What Pragmatism Means", in Pragmatism (1907):

"Truth in our ideas and beliefs means … that ideas, (which themselves are but parts of our experience) become true just in so far as they help us to get in to satisfactory relation with other parts of our experience …". (James’s emphasis)

I would apply that to our present context in this way: the right or "true" answer to an admissibility problem is that which most satisfactorily relates to the concerns we perceive as relevant. The point is that different people may see different things as being relevant to the determination of the admissibility of wrongfully obtained evidence. Have the courts adequately taken into account public interests, so that public unease about a particular case is misplaced? Shouldn't the real inquiry be why the police obtained the evidence wrongfully? What inadequacies in police training or attitudes permitted such misconduct to occur?

Reverse onus in the House of Lords

While we in New Zealand await our Supreme Court’s decision in Hansen v R, which will decide the standard of proof placed on the accused by reverse onus provisions in the light of human rights legislation, we note that the House of Lords now finds the reading down of reverse onus provisions a relatively routine matter: O v Crown Court at Harrow [2006] UKHL 42 (26 July 2006).

Here, the House of Lords was concerned with the meaning of "is satisfied" in a provision that required refusal of bail unless the court was satisfied that exceptional circumstances existed (s 25 of the Criminal Justice and Public Order Act 1994[UK]):

"(1) A person who in any proceedings has been charged with or convicted of an offence to which this section applies in circumstances to which it applies shall be granted bail in those proceedings only if the court or, as the case may be, the constable considering the grant of bail is satisfied that there are exceptional circumstances which justify it."

Two approaches to this were considered in the Court of Appeal. Kennedy LJ thought "satisfied" means "considers" and that the question is a matter of judgment for the court, not involving any particular standard of proof. Hooper J, on the other hand, thought that "satisfied" here puts the burden on the bail applicant, and is therefore inconsistent with the ECHR, so s 25 has to be "read down" to place only an evidentiary burden on the bail applicant.

Lords Nicholls and Hutton, and Lady Hale, agreed with Lord Brown; Lord Carswell did too, but examined the difference in interpretation in more detail. He referred, rather obliquely, to Re McClean (blogged here 7 July 2005) in which it was decided, inconsistemtly with the present case, that doubts must be resolved against the prisoner. He held that "satisfied" in s 25 means more than just an exercise of judgment, and that it connotes a burden or presumption, so s 25 has to be read down to comply with convention rights. Thus, Lord Carswell agreed with Hooper J’s approach.

Lord Brown, delivering the leading speech, had a "mild preference" for Hooper J’s approach (para 35). He pointed out that in most cases the decision will be clear cut and that the burden of proof will not assume any relevance. Occasionally, however, the court will be left unsure, and in these cases the default position should be that bail should be granted, and s 25 should be read down to make that plain.

Differences in principle and pragmatism

Appellate judges often disagree over whether an error at trial caused a substantial miscarriage of justice. Finding himself in a minority of one in Bounds v R [2006] HCA 39 (20 July 2006), Kirby J observed, para 85:

"Conclusion: a basic error: I accept that different conclusions are available on this issue. The nature of the controversy and the breadth of the language of the 'proviso' virtually assures the existence of differences of judicial views. Such differences may reflect the diverse values that judges accord to considerations of principle and pragmatism, as they regard them. Those differences appear in many cases in this Court concerned with the 'proviso' … [citing Green v The Queen (1971) 126 CLR 28 at 31; Jones v The Queen (1997) 191 CLR 439; Darkan v The Queen [2006] HCA 34]. They are also reflected in the foregoing differences of opinion in the United States Supreme Court [ie Lane v US 747 US 438 (1986)]."

It seems likely that, on the key point in Bounds, the majority were correct. A second count had been wrongly included in an indictment. The error was that the second offence was purely summary, not triable on indictment. Nevertheless, evidence of its commission would probably have been admissible as similar fact evidence in respect of the only count that should have been in the indictment. The majority (Gleeson CJ, Hayne, Callinan and Crennan JJ) at para 26 held

"… The evidence admitted at the appellant's trial about the downloading of the images the subject of count 2 was very limited. It would have been admissible on the trial of an indictment alleging only count 1."

Kirby J did not think this was so (para 100):

"Nor do I consider that the tender of such material would have been permitted in a trial if that trial had been limited to the indictable offence of possession of child pornography. A judge guarding the fairness of the conduct of such a trial would be properly careful to restrict extraneous, and possibly prejudicial, evidence. By impermissibly charging the two offences in the one indictment, an inter-mixture necessarily occurred. Descriptions or conceptions of the contents of the images became inevitable. It is that inter-mixture, before the jury, that presents the risk of a substantial miscarriage of justice. It is that risk that withholds the application of the 'proviso'."

Apart from the difference of opinion on that issue, Kirby J also differed from the majority on whether the jurisdictional error was, of itself, sufficient to prevent application of the proviso without examination of issues relating to the conduct of the trial. He reasoned (paras 87-88) that the Western Australia legislature had carefully separated the jurisdictions and that the community and the accused are therefore entitled to a trial that conforms to the law and is without jurisdictional flaw.

The majority, however, did focus on what happened at the trial of the count that was properly before the jury (para 13-30). Their conclusion on the trial conduct contrasts with that of Kirby J, who held, para 96:

"… The impermissible inclusion of the second count in the indictment deprived the appellant of a trial that was free from any reference to this extraneous factor [images of bestiality]. It deprived him of the chance of avoiding this added complication in his trial. Specifically, it deprived him of the forensic choices that the separate trial of the offences referred to in the two counts would have entailed."

It is not clear what those "forensic choices" were, even on the basis that the evidence was not (as Kirby J held) admissible as similar fact. Even the mere fact that these images (whatever they might have depicted) were downloaded at a particular time seems to have been relevant to whether the images which were the subject of count 1 were downloaded by the accused (see majority judgment, para 26).

This case is interesting for its references to other cases, including English and United States decisions, where differences of opinion have occurred over how to decide whether an error has caused a trial to be unfair. It is now 99 years since England enacted what has been almost universally adopted as the "proviso", and one would have thought that, by now, appellate judges would have worked out a rational approach to its application, thereby promoting uniformity of result and minimising disagreements. My own view is that the basic problem is that judges have not got to grips with the meaning of the essential requirement of a fair trial. Until judges learn to define the characteristics of trial fairness and to apply them rationally, vagueness over the meaning of "substantial miscarriage of justice" will continue to make the results of appeals difficult to predict.

If one were to apply my own "Fair Trial Analysis", one would identify the following issues in Bounds. Since a fair trial is one where the law is accurately applied to facts determined without bias, the first question is, what errors of law occurred? It was common ground that count 2 should not have been in the indictment. Was the admission of evidence relevant to that count an error? This requires examination of the admissibility of the evidence as similar fact in relation to count 1. The judges in Bounds did not undertake this inquiry in detail, they simply announced their conclusions, and, as noted, Kirby J dissented on this. If it is correct that the evidence was admissible as similar fact, then the question is whether the judge’s direction to the jury on that topic was adequate to ensure that the evidence was not misused. If the evidence was not admissible as similar fact, then the question is whether the jury were adequately warned to ignore it in relation to count 1. The jury direction was not revealed in the judgments in Bounds. Then, in relation to the unbiased determination of the facts, the appellate court should ask whether the similar fact evidence – even if it was admissible – could have, by reason of its content, prejudiced the rational assessment of the other evidence. This point is addressed in Bounds, but again it was a point of difference. Kirby J thought that it could have caused prejudice, simply because of the risk of an averse reaction by any juror to the mere mention of bestiality. The majority, however, considered that the mention of bestiality (the jury were not shown any images) was of peripheral concern and would not have caused illegitimate prejudice. At the heart of this difference of judicial opinion is the extent to which it should be acknowledged that jurors may not approach their task rationally. This was mentioned as recently as the 19th of this month by the House of Lords in R v Coutts (blogged 21 July 2006), where Lord Bingham (with whom the others agreed), citing a High Court of Australia case, Gilbert v R (2000), said at para 20 that the jury room may not be a place of undeviating intellectual and logical rigour. Coutts and Bounds are cases that complement each other: in Coutts the concern was failure to include an offence in the indictment, whereas in Bounds the concern was improper inclusion of a count. Should the court be less sensitive to the risk of jury prejudice in one than in the other?

Fairer than you may want

The right to a fair trial is a right that the accused cannot waive.

This may seem a strange statement: why would the accused ever want to waive the right to a fair trial? Well, trial tactics are complicated things. If charged with one serious offence, the accused may prefer to hope for an outright acquittal on that rather than have the judge tell the jury that if they acquit on the serious charge they may then consider whether to convict on a lesser charge. A conviction on the lesser charge, and the consequence of imprisonment on that, may be something the accused would see as rendering his victory on the more serious charge Pyrrhic.

A fair trial is a trial conducted according to law. This means, as the House of Lords held this week in R v Coutts [2006] UKHL 39 (19 July 2006), that the jury must be fully informed about the alternatives available to it, whether either side want that or not. In Coutts, both sides agreed that the judge should not instruct the jury about the alternative of manslaughter, when the accused faced a solitary charge of murder. The Crown, confident that it would secure a conviction for murder, did not want the jury to instead convict for manslaughter, so, clothing its stance in the guise of a fairness objection, it argued that the accused was entitled to an acquittal if the jury had a doubt about the way the Crown had sought to prove its case for murder. The defence, having argued that the killing was accidental, did not want the risk of a conviction for manslaughter, because the sentence for that would, in the circumstances, be a lengthy term of imprisonment. Following the conviction for murder, the defence appealed, arguing that the judge should have directed the jury about manslaughter. The House of Lords upheld this argument and quashed the conviction, remitting the case so that a retrial could be considered.

Coutts establishes that fairness requires that the jury be fully informed about the law and the alternatives open for consideration in the particular case. Further, failure to inform the jury of the legal position amounts to a substantial miscarriage of justice. The appellate court does not enter into an inquiry about whether the jury only convicted the accused of the serious charge because it did not want him to walk free. To do that would be to engage in speculation. While a foundation of the system of trial by jury is the assumption that juries apply the directions on the law that judges give them (Lord Rodger, para 87), it is proper to recognise that the jury may be affected in its approach by the choices that it perceives as being available to it (an observation by Callinan J in the High Court of Australia case Gilbert v The Queen (2000) 201 CLR 414 para 101, quoted by Lord Bingham at para 20, Lord Hutton at 54, Lord Rodger at 88 and Lord Mance at 99).

Accordingly, the public interest in the administration of justice is best served if the judge leaves any obvious alternative offence to the jury irrespective of the wishes of counsel. Lord Bingham, with whom the other law lords agreed, put the requirement as follows (para 23):

"The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support. I would not extend the rule to summary proceedings since, for all their potential importance to individuals, they do not engage the public interest to the same degree. I would also confine the rule to alternative verdicts obviously raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial. Application of this rule may in some cases benefit the defendant, protecting him against an excessive conviction. In other cases it may benefit the public, by providing for the conviction of a lawbreaker who deserves punishment. A defendant may, quite reasonably from his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency.

"24. It is of course fundamental that the duty to leave lesser verdicts to the jury should not be exercised so as to infringe a defendant's right to a fair trial. This might be so if it were shown that decisions were made at trial which would not have been made had the possibility of such a verdict been envisaged. But no such infringement has ordinarily been found where there is evidence of provocation not relied on by the defence, nor will it ordinarily be unfair to leave an alternative where a defendant who, resisting conviction of a more serious offence, succeeds in throwing doubt on an ingredient of that offence and is as a result convicted of a lesser offence lacking that ingredient. There may be unfairness if the jury first learn of the alternative from the judge's summing-up, when counsel have not had the opportunity to address it in their closing speeches. But that risk is met if the proposed direction is indicated to counsel at some stage before they make their closing speeches. They can continue to discount the alternative in their closing speeches, but they can address the jury with knowledge of what the judge will direct. Had this course been followed in the present case there would have been no unfairness to the appellant, and while taking a contrary view the Court of Appeal did not identify the unfairness which it held would arise. It is not unfair to deprive a defendant, timeously alerted to the possibility, of what may be an adventitious acquittal."

Public privacy

Courts may disagree over whether language is “grossly” offensive. In DPP v Collins [2006] UKHL 40 (19 July 2006) the House of Lords unanimously disagreed with two lower courts on this point. The defendant had left messages by telephone at his MP’s office, employing terms of racial abuse that were unquestionably offensive. The lower courts held that the messages did not cross the line between offensive and grossly offensive. The embarrassment of disagreeing with the lower courts was exacerbated because essentially the question whether the messages were “grossly” offensive was one of fact, to be determined by applying the standards of an open and just multi-racial society taking into account the context and all relevant circumstances (Lord Bingham, para 9) – standards which the lower courts should be particularly well placed to apply.

How had the lower courts gone wrong? Lord Bingham at para 13 concluded:

“Differing from the courts below with reluctance, but ultimately without hesitation, I conclude that the respondent's messages were grossly offensive and would be found by a reasonable person to be so.”

He agreed with Lord Carswell, who was a little more explicit about this (para 22):

“I felt quite considerable doubt during the argument of this appeal whether the House would be justified in reversing the decision of the magistrates' court that the reasonable person would not find the terms of the messages to be grossly offensive, bearing in mind that the principle to which I have referred, that a tribunal of fact must be left to exercise its judgment on such matters without undue interference. Two factors have, however, persuaded me that your Lordships would be right to reverse its decision. First, it appears that the justices may have placed some weight on the reaction of the actual listeners to the messages, rather than considering the reactions of reasonable members of society in general. Secondly, it was conceded by the respondent's counsel in the Divisional Court that a member of a relevant ethnic minority who heard the messages would have found them grossly offensive. If one accepts the correctness of that concession, as I believe one should, then one cannot easily escape the conclusion that the messages would be regarded as grossly offensive by reasonable persons in general, judged by the standards of an open and just multiracial society. The terms used were opprobrious and insulting, and not accidentally so. I am satisfied that reasonable citizens, not only members of the ethnic minorities referred to by the terms, would find them grossly offensive. "

The offence in question was held to require mens rea – an intention that the words be grossly offensive to those to whom they related, or an awareness that they may be taken to be so (Lord Bingham, para 11). But on the approach taken here, that state of mind need not be followed by actual offence taken by the recipient of the message. Indeed, it was held not to be necessary than anyone actually receive the message (para 8).

Consequently, the offence of sending a grossly offensive message could be committed without actually offending anyone. What makes it an offence is the fact that the social standards have been infringed. The offence is, on this interpretation, sending a message that would grossly offend a reasonable person if such a person became aware of it. That seems to be a bit of a stretch from the wording of the relevant legislation: s 127 of the Communications Act 2003[UK]:

“127. Improper use of public electronic communications network
(1) A person is guilty of an offence if he—
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.”

The justification for the imposition of community standards is the public nature of the communication network, which would be fine if everyone had ready access to everyone else’s communications. In reality, of course, the network is no more public than words exchanged in a conversation between two people on the street.

Our case against you is secret ...

No one could be surprised that included in the guarantees recognised as indispensable by civilised peoples are the right, when on trial, to be present, and to be privy to the prosecution evidence. In Hamdan v Rumsfeld, 548 US 557 (2006), 29 June 2006 the United States Supreme Court held that these rights applied to detainees that the Government proposed to prosecute in special military commissions.

Stevens J, joined by Souter, Ginsburg and Breyer JJ, wrote, in an important footnote (p 71, n67):

"The Government offers no defense of these procedures other than to observe that the defendant may not be barred from access to evidence if such action would deprive him of a "full and fair trial." Commission Order No. 1, ß6(D)(5)(b). But the Government suggests no circumstances in which it would be "fair" to convict the accused based on evidence he has not seen or heard. Cf. Crawford v. Washington, 541 U. S. 36, 49 (2004) (" ‘It is a rule of the common law, founded on natural justice, that no man shall be prejudiced by evidence which he had not the liberty to cross examine’ ") (quoting State v. Webb, 2 N. C. 103, 104(Super. L. & Eq. 1794) (per curiam)); Diaz v. United States, 223 U. S. 442, 455 (1912) (describing the right to be present as "scarcely less important to the accused than the right of trial itself"); Lewis v. United States, 146 U. S. 370, 372 (1892) (exclusion of defendant from part of proceedings is "contrary to the dictates of humanity" (internal quotation marks omitted)); Joint Anti-Fascist Refugee Comm. v. McGrath,341 U. S. 123, 170, n. 17, 171 (1951) (Frankfurter, J., concurring) ("[t]he plea that evidence of guilt must be secret is abhorrent to free men" (internal quotation marks omitted)). More fundamentally, the legality of a tribunal under Common Article 3 cannot be established by bare assurances that, whatever the character of the court or the procedures it follows, individual adjudicators will act fairly."

There is here an obvious relevance to the law concerning the use of special advocates. Such advocates are used, for example, in England and Wales in relation to some immigration matters: see the Special Immigration Commission Act 1997[UK], and Parts 3, 4 and 7 of the Special Immigration Appeals Commission (Procedure) Rules 2003 SI 2003/1034. These procedures have been described as "an unfortunate legacy from someone who rode roughshod over liberties in this country in a breathtaking manner" (per Dominic Grieve, Conservative Member for Beaconsfield, Commons Hansard, 23 February 2005).

A special advocate procedure is planned in New Zealand in relation to whether a person is a risk to the security of the nation for the purposes of certification by the SIS and consequent expulsion.

The Ellis case and trial fairness

For a draft paper on the trial of Peter Ellis for sexual offending at the Christchurch Civic Creche, see my web site, and follow the links to more about me, and articles available on this site.

A look at torts ...

During this strangely extended lacuna between interesting criminal cases around the world, we have a moment to glance at yesterday’s decision of the House of Lords in Jones v Saudi Arabia [2006] UKHL 26 (14 June 2006).

This case concerns the civil jurisdiction of domestic courts to adjudicate on claims in tort for damages for torture inflicted in another country by officials of that foreign country. In contrast to the universal criminal jurisdiction provided for by the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (the "Torture Convention"), there is no corresponding universal civil jurisdiction. The claimants in Jones sought to establish that the State Immunity Act 1978[UK] should be interpreted, contrary to its ordinary and natural meaning, so as to permit refusal of immunity in respect of torture claims, because such an interpretation was required by s 3 of the Human Rights Act 1998[UK] to give effect to the Art 6 of the ECHR right of access to courts.

That claim and argument was rejected unanimously. State immunity is a procedural matter determining jurisdiction, and does not have substantive content. There is no international consensus recognising universal civil jurisdiction, and there is no such exception in the UN Immunity Convention 2004. And, there is no evidence that States have recognised an international law obligation to exercise universal jurisdiction over alleged breaches of peremptory norms of international law. Therefore, the (assumed) restriction on access to the domestic courts was directed at a legitimate objective and was not disproportionate, and the interpretation sought by the claimants could not prevail.

See also, blog entry for 17 March 2006.

Inchoate offences and the scope of mens rea

We have already noted the Supreme Court’s decision in L v R (see blog for 3 April 2006), in which the mental elements of an attempt to commit an offence that could be committed recklessly were held to include the same recklessness. Yesterday, the House of Lords reached a different conclusion in R v Saik [2006] UKHL 18 (3 May 2006), which concerned the statutory definition of "conspiracy". Both attempts and conspiracies are what is called inchoate offences: they are, in this sense, uncompleted substantive offences.

It is interesting to observe that legislatures can differ on what sort of behaviour, preliminary to the commission of a substantive offence, they consider appropriate to criminalise, and they can also differ on how precisely they wish to indicate the scope of proscribed behaviour.

Under English law, money laundering (the relevant substantive offence in Saik) can be committed knowingly, or by having reasonable grounds to suspect, in relation to the fact that the money or property is the proceeds of criminal conduct. The New Zealand definition of money laundering is broadly similar in these respects; both the Crimes Act 1961 and the Misuse of Drugs Act 1975 contain laundering offences, and the relevant state of mind is knowing, believing, or being reckless as to the money or property being proceeds of a serious offence.

There is, obviously, a difference, in that the English provision encompasses having reasonable grounds to suspect, whereas in New Zealand the scope does not extend beyond recklessness.

The material difference for present purposes is in the definitions of the inchoate offences. The English statutory conspiracy is defined in s 1(1) and (2) of the Criminal Law Act 1977[UK], and, significantly, s 1(2), as interpreted in Saik, requires that, in relation to essential circumstances that need not be known for liability for the full offence, the accused must intend or know of them for liability to arise for the conspiracy. Thus, for conspiring to launder property, where the full offence does not require knowledge that the property is proceeds of criminal conduct (reasonable grounds to suspect being sufficient), the consequence of the Saik interpretation of s 1(2) is that conspiring to launder property requires proof that the accused knew or believed that the property was proceeds of criminal conduct.

In New Zealand, the crime of attempting to commit an offence is defined in s 72 of the Crimes Act 1961, which requires an "intent to commit an offence". In L v R this was interpreted to mean, for attempted sexual violation, intention to penetrate (or, in the peculiar circumstances of that case, an intention that penetration should occur), and recklessness as to whether the victim consented. The policy applied in L has thus, from this point of view, resulted in expansion of the meaning of "intent" in s 72.

In summary, the UK Parliament defined conspiracy narrowly, and the Court declined to interpret the definition in a way that would have extended it, whereas the New Zealand Parliament defined attempt without specifying whether it should be construed widely or narrowly, and the Court chose a wide interpretation.

Thou art far more fair than she ...

Is Australian criminal law really fairer than New Zealand’s? In Moloney v New Zealand [2006] FCA 438 (21 April 2006) (blogged here on 1 May 2006), Madgwick J thought it is. It is arguable that his approach to this matter was wrong. He should have used as fundamental a point that he did note, namely that since New Zealand, like Australia, is a party to the International Convention on Civil and Political Rights, and, further to what he noted, that since New Zealand, unlike Australia, has the accused’s right to a fair trial included in a Bill of Rights, courts in New Zealand are unlikely to tolerate an unfair trial.

The question would then have been, would New Zealand judges be likely to interpret their rules of evidence in a way that results in unfairness to the accused?

It is not a matter of comparing the rules in Australia with those in New Zealand, as Madgwick J did, because it is the result of the application of the rules that is critical. The real question in Moloney was, does the right to a fair trial in New Zealand have overriding importance?

I have argued that it does: see "The Accused’s Right to a Fair Trial: Absolute or Limitable?" [2005] New Zealand Law Review 217. I must acknowledge, however, that the mere fact that the eponymous question has to be asked indicates that in New Zealand there has been some doubt over whether the accused’s right to a fair trial overrides other rights and interests. My conclusion in that article was that the majority of senior New Zealand judges appear to accept the absolute view of the accused’s right to a fair trial. Concern over the status of trial fairness in New Zealand should focus on the grounds on which judges disagree over that.

In Moloney, Madgwick J gave two main reasons for concluding that trials of the relevant charges, allegations of historical sexual misconduct going back 22 to 31 years, on balance would be unlikely to be conducted fairly in New Zealand, if fairness is assessed by Australian standards. Each reason has its weaknesses.

The first reason concerned judicial warnings to the jury about the reasons that evidence by complainants about events that are allegedly remembered after so long a time may be unreliable, and reasons why the accused may be disadvantaged in challenging such allegations. In Australia such warnings, in cases of delay of this length, are apparently mandatory. That, at least, was the view of Madgwick J, and we may for present purposes assume that he was correct on this point. In New Zealand they are discretionary. What, then, is the significance of this difference?

As suggested above, the question should have been, would New Zealand judges be likely to decline to warn the jury about those matters in the circumstances of these cases? And, if they did not give the warning, would convictions be likely to be upheld on appeal; that is, would the Court of Appeal recognise that failure to give the warning amounted to a substantial miscarriage of justice?

The current state of development of the law in New Zealand is such that, while we may be reasonably sure that a trial judge would warn the jury, if he did not, we cannot be sure that an appellate court would regard that omission as a substantial miscarriage of justice. The problem of appellate recognition of substantial miscarriage of justice is not confined to New Zealand: the Privy Council not infrequently differs among its members on this. There is, therefore, reason for some unease on this score.

The second reason that Madgwick J gave was that in Australia the charges would be heard at separate trials, because the evidence of each complainant was only relevant to the allegations made by that complainant, whereas it seemed that in New Zealand a court would be likely to regard the evidence of some complainants as corroborative of the evidence of others, so that some joinder of trials may occur. This area of the law of evidence concerns what is usually called "similar fact" evidence. Essentially, where different complainants make similar allegations, one tends to increase the likelihood that another is true, unless there was evidence that they had colluded to concoct falsely similar stories. The proper focus of similar fact evidence, where it is admissible, is on the weight to be given to the evidence of the complainant whose allegations are being decided. The great danger of this evidence is that juries will go straight to a conclusion that the accused is the kind of person who does this sort of thing, so he must be guilty. In other words, the error would be to convict the accused for what is now alleged because of what he is said to have done before, rather than because this complainant is believable.

The law about similar facts has been problematic everywhere. This has often been because its admissibility has been linked to the criterion of whether the probative value of the evidence outweighs its illegitimately prejudicial effect. I have discussed this in "Probative value, illegitimate prejudice and the accused’s right to a fair trial" (2005) 29 Crim LJ 8. In Moloney, Madgwick J considered that in Australia the similar fact evidence would not be admissible. Assuming that to be so, would it be admissible in New Zealand? A leading case on this is R v Holtz. I have discussed this case in Misuse of Drugs, para 306, as follows:

"There could appear to be some withdrawal from the requirement of hallmark or striking similarity in R v Holtz [2003] 1 NZLR 667; (2002) 20 CRNZ 14 (CA). But whether that is so, and if so, whether it is to be taken as a generally applicable modification of the law, may be doubted. The Court observed at para 35 that it is wrong to look for principles of admissibility applicable to all evidence of past conduct in all circumstances. Identity was disputed in relation to some of the allegedly similar facts, and at para 43 the Court merely required a credible strand of circumstantial evidence pointing to the accused as the offender. However, a more rigorous requirement appeared at para 47, where it was stated that the evidence must be truly probative and cogent. In full, this crucial paragraph reads as follows:

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

"It should be noted here that the requirement is that the risk of improper use of the evidence can be avoided, not just reduced to a level where it is outweighed by the probative value of the evidence."

If this criterion is applied strictly the "trial according to law" aspect of the right to a fair trial would be protected. Unfortunately, it cannot be said for certain, at present, that the "avoiding" of improper use of the evidence would be required, instead of merely the risk of improper use being "outweighed" by the probative value of the evidence. Again, on this point, one cannot be sure that judges in New Zealand would interpret this rule of evidence in a way that would ensure the dominance of the accused’s right to a fair trial.

A difference of reasonable minds

Fairness can be a very difficult matter to agree on, as is demonstrated in cases where judges have differed among themselves: see, for illustrations, blog entries for 10 October 2004, 10 July 2005, 28 August 2005, 9 December 2005 and 7 March 2006. Applications to extradite suspects to other jurisdictions where fairness of trial may be questioned give rise to the issue of what is an acceptable risk of unfair trial in the foreign court. In Bagdanavicius [2005] UKHL 38 (blogged 26 May 2005) it was held that extradition must be refused if there are "substantial grounds" for believing there to be "a real risk" of mistreatment in the foreign jurisdiction.

In Moloney v New Zealand [2006] FCA 438 (21 April 2006) the Federal Court of Australia (Madgwick J) held (para 120) that the burden, on appeal, was on the defendants (those resisting extradition) to show there would probably be an injustice in extradition. This might (it is difficult to say, as the point is not discussed by Madgwick J) be an easier standard to satisfy than that required by the House of Lords in Bagdanavicius.

That aside, Moloney points to some areas in New Zealand criminal law that are not self-evidently fair. Diplomatically, Madgwick J acknowledges (para 108) that "reasonable minds may and do differ on what constitute the incidents of a fair trial", so that, in effect, this is a difference between friends. No insult being intended, the Federal Court held that, judged as it must be by the standards of Australian law (Bannister v New Zealand (1999) 86 FCR 417), trial of the charges in New Zealand would probably be unfair.

Moloney holds that New Zealand criminal law falls short of the Australian standard of fairness in the following respects:

(1) In cases of historical allegations, in Australia judges must warn the jury about the dangers inherent in accepting the evidence of complainants (this is called the direction in Longman v R (1989) 168 CLR 79 (HCA)), whereas the New Zealand Court of Appeal has rejected the mandatory requirement of a warning, preferring to leave the need for a warning as a matter for the judge to decide: R v M 13/11/95, CA187/95. This was held to be the factor that made the difference between Australian and New Zealand law sufficiently serious to prevent extradition. Australian courts regard the Longman direction as being "a vital requirement for a just trial in a case of long delay" (para 109). But there were other factors too.

(2) Whereas in Australian law it is clear that the charges would have to be heard separately, because similar fact evidence would be inadmissible, this was not so clear in New Zealand law (citing R v Holtz [2003] 1 NZLR 667, 675 (CA)). While this uncertainty made this factor less than decisive, it was, nevertheless, "a circumstance exacerbating the disabilities" caused to the defence and arising from the delay (paras 117, 123).

(3) Australia has rejected the use of representative charges (S v R (1989) 168 CLR 266 and KBT v R (1997) 191 CLR 417 (HCA)), whereas they are acceptable in New Zealand: para 110, quoting R v Accused [1993] 1 NZLR 385, 389 (CA). The objections to representative charges concern vagueness as to when the offence for which the accused is convicted occurred, and what facts were accepted as proof of it.

There was, in summary, between Australia and New Zealand "a fundamental difference as to the content of an effective right to a fair hearing, such right being recognised … as a basic human right" (para 113).

Apologists for New Zealand law might argue that, vague though the law may be, everything would turn out alright in the end, as appellate courts can take an overview and correct unfairness. Such wooliness is, indeed, behind the development of the law to this unsatisfactory state. Disturbingly, New Zealand has been led into this difference of "reasonable minds" by some of our foremost judges: participants in New Zealand Court of Appeal decisions cited in Moloney include Cooke P (now, Lord Cooke), Gault P, Richardson J (subsequently P), Casey, Hardie Boys, and Keith JJ. In this area, rules are preferable to discretions, and precision must be pushed as far as it will go.

Having said that, it should be acknowledged that a face-saving appeal against Madgwick J’s decision in Moloney could result in a different view of New Zealand’s approach to fairness. It could be held that Madgwick J was wrong to consider that in Australia a warning was inevitable in the circumstances of the case(s), citing Doggett v R (2001) 182 ALR 1 (HCA), where McHugh J dissented in holding that no warning was required in that case, as an illustration of how the need for a warning can be controversial. That would make the position on warnings as uncertain in Australia as it seems to be in New Zealand. Further, while the risk of evidence of other complainants being admissible on a similar fact basis seems to be high in New Zealand, it cannot be discounted in Australia either, because the merits of the case (correctly recognised as not relevant to the extradition decision) may give other complaints high probative value as corroboration. Such corroboration would, in turn, reduce the need for a warning in Australian law. The result could be that New Zealand’s law on fairness is not significantly different from Australia’s.

That, however, could be said to mean that the law on fair trials is equally unsatisfactory in each country.

Public policy and degrees of misconduct

Public policy exclusion of evidence is sometimes still spoken of by courts as if it was a means of protecting the accused’s right to a fair trial. This was done yesterday by the Privy Council in Williams v R (Jamaica) [2006] UKPC 21 (25 April 2006). A statement had been obtained from the accused when he was aged 12, in breach of the procedures laid down for the interviewing of young suspects (para 27). The Board concluded, at para 28:

"…the circumstances of the appellant's detention and of the taking of the statement were such as to create a significant amount of unfairness to him. Their Lordships cannot conclude that in all the circumstances of the case it was fair to admit the statement."

While the Board was not expressly referring to trial fairness, the expressions "unfairness to him" and it not being "fair to admit" the statement do suggest that trial fairness is the object of concern. Another point in this extract that is misleading is the expression "a significant amount of unfairness".

My view is that in these situations the courts are not excluding the evidence for reasons that have anything to do with trial fairness. The probative value of the evidence is not relevant to the decision on admissibility in these cases (see, for example, my blog entry for 4 April 2006 concerning "cogency"). It is not the accused’s guilt that matters, it is the objectionable way in which the evidence was obtained that is critical. This is why the discretion, in this area, is best called the public policy discretion. It is true that, historically, this discretion evolved from – and remains part of - the court’s inherent power to prevent an abuse of process. In turn, that power has been referred to as giving rise to a discretion to exclude evidence in the interests of "fairness", or, sometimes, "fairness to the accused". But these are not references to trial fairness.

One of the reasons for making this distinction between the public policy exclusion of evidence, and the exclusion of evidence to ensure trial fairness, is to preserve the concept of the absolute nature of the accused’s right to a fair trial. In the above quotation from para 28 of Williams, the expression "a significant amount of unfairness" could, wrongly, suggest that fairness of trial exists in gradations, and that some forms of trial unfairness are acceptable. I have given examples of misuse of this terminology in "The Duty to Prevent an Abuse of Process by Staying Criminal Proceedings" in Essays on Criminal Law – A Tribute to Professor Gerald Orchard (Brookers Ltd, 2004), 133, 146.

What, it is respectfully suggested, the Privy Council should have said in Williams, is that the breaches of the Directions on the conduct of interviews of young persons that occurred in this case were sufficiently serious that admission of the statement obtained thereby would be an abuse of process. The evidence was excluded to prevent the administration of justice being brought into disrepute, as would occur if the courts appeared to endorse the police misconduct. In that context it is appropriate, if one must use the "fairness" terminology, to speak of degrees of unfairness, because official misconduct comes in degrees.

There may be cases where trial fairness could be relevant to the admission into evidence of a statement that had been obtained wrongfully. But it must be remembered that, at the stage when the ruling on admissibility has to be made, the effects of admission on the defence will not be known: the Judge will not know whether the defendant intends to give or call evidence, let alone what any such evidence would be. There is a difference between using fairness as grounds for excluding evidence, and using fairness in considering, as an appellate court, whether to apply the proviso. It is the appellate court that is best placed to evaluate the effect of an erroneous admission of evidence, and, when the public policy discretion has been exercised in favour of admitting the evidence, it may be only retrospectively that the trial can be said to have been unfair.

Seeing and believing

Eyewitness identification evidence may need to be treated with some circumspection, and juries are usually given a direction on the special need for caution before relying on such evidence. In some jurisdictions, these warnings are required by statute, although, as is the case in New Zealand, the points required to be covered are not spelt out in great detail. The common law antecedent of these directions is known as the Turnbull direction, originating in the English Court of Appeal’s decision R v Turnbull [1977] QB 224.

In Edwards v R (Jamaica) [2006] UKPC 23 (25 April 2006) the Privy Council indicated that there are some practices that should not be permitted at trials where identification is an issue and the prosecution relies on evidence of an eyewitness to the offence. These are:

(1) The eyewitness should not be permitted to identify the accused in the dock as the offender. The prosecution should, in general, adopt other means for establishing that the accused is the person who was arrested (para 22):

"… it is only in the most exceptional circumstances that any form of dock identification is permissible: cf the discussion in the Scottish devolution appeal Holland v HM Advocate [2005] UKPC D1, 2005 SLT 563. It may be borne in mind that this was far from being a first identification and it can fairly be said that the dock identification may have had little impact on the minds of the jury. It is, however, an undesirable practice in general and other means should be adopted of establishing that the defendant in the dock is the man who was arrested for the offence charged."

(2) A police officer should not be permitted to give in evidence his opinion on why an ID parade was not considered to be necessary (para 23).

(3) The police should not give in evidence the fact that a warrant was obtained for the arrest of the accused, or of the information on which the police acted, as this is hearsay and potentially highly prejudicial (para 23).

(4) The police should not give in evidence the fact that a potential witness was unwilling to come forward (para 23).

(5) The police should avoid confronting the eyewitness with the suspect (para 25).

There is, at this point – para 25 – a possibly unintentional suggestion by the Board that hearsay evidence might be given to establish the link between the person described to the police as the offender, and the suspect:

"The arresting officer would have been quite capable of establishing that the appellant was the person pointed out to him by Bailey [the eyewitness] near the Mango Tree Bar, so it was unnecessary to ask Bailey to come to the station to confirm that."

This, however, should be read as referring to "establishing" in an investigatory, pre-trial, sense, and not as "establishing" in evidence at trial.

In this case, the eyewitness to the killing had been standing next to the victim, and the bullet that killed the victim had passed through the eyewitness. The offender had been trying to rob the eyewitness, who suddenly and unsuccessfully tried to grab the gun. The eyewitness was hospitalised for 4 weeks, and it was 2 months after the killing before he saw the accused near the same bar. He claimed that the accused was the offender. In his first description of the offender, given 5 days after the incident while he was in hospital, the eyewitness failed to mention a prominent birthmark on the accused’s face, he was unable to say what sort of trousers the offender was wearing, and he claimed that the time he had to observe the offender was a couple of minutes although it must have been shorter than that. The circumstances in which the offender was observed were good: inside a bar in the morning with good lighting.

The Privy Council was concerned that there could have been an erroneous association of ideas arising from the location of the offence and the subsequent identification being similar, and that the judge had not adequately warned the jury of the dangers in accepting the evidence. The conviction was therefore unsafe.

In New Zealand, the Evidence Bill 2006, clause 122, almost exactly repeats the current provision on the need for judicial warning: Crimes Act 1961, s 344D. The slight difference is that instead of requiring the judge to "include the reason for the warning", the Bill requires the judge to "warn the jury that a mistaken identification can result in a serious miscarriage of justice". The need for a warning arises "In a criminal proceeding tried with a jury in which the case against the defendant depends wholly or substantially on the correctness of 1 or more visual or voice identifications of the defendant or any other person …". The inclusion of voice identification is new to the Bill.

The Bill contains other provisions relating to the admissibility of visual identification evidence. It is important to note that here the concern is with admissibility, not with the way admissible evidence is treated at trial. These provisions, for visual identification, are in clause 41, and they concern the implications of whether or not a formal identification procedure was used at the investigatory stage. The criterion for admissibility is proof, on the balance of probabilities, that the evidence is reliable. The Bill does not say to what extent, if any, this reliability should be assessed by reference to the other evidence in the case. It seems plain that the other evidence should not be included in the assessment of the reliability of the visual identification evidence, and that the focus should be on the circumstances in which the identification was made.

Balancing "cogency" of wrongfully obtained evidence

Simmons v R (Bahamas) [2006] UKPC 19 (3 April 2006) gives us an opportunity to highlight the distinction between "fairness" when that term is used in the context of the exercise of the public policy discretion to exclude evidence, and "fairness" in the separate sense of trial fairness for the accused.

The two appellants were convicted of murder. Included in the evidence against them were statements they had made to the police. These statements, referred to as confessions, although they were partly exculpatory (and, one accused who gave evidence adopted what he had said to the police), were obtained in breach of the appellants’ constitutional right to be informed of the availability of legal advice before they spoke to the police.

Breach of that right gives rise to a judicial balancing exercise to determine whether to admit or exclude the statement. This balancing exercise is a public policy discretion, having nothing to do with the fairness of the trial. It arises because of the conflict between, on the one hand, the public’s right to have suspects prosecuted and offenders brought to justice, and, on the other hand, the public’s right to have officials comply with the law in the investigation of offences. The only sanction that courts can impose on officials who act in breach of the law in this context is to exclude evidence that they obtain thereby.

Sometimes, in carrying out this balancing exercise, judges say that the cogency of the evidence is a factor strongly favouring its admission. An important observation on this point was made by the Privy Council in this case, para 26:

"The Board has one other concern about the judge's balancing of the respective interests of the prosecution and the defence on the issue of fairness: the evident importance which she attached to the confession being "very cogent evidence against Simmons." Their Lordships cannot accept that the potency of such evidence is necessarily a factor in favour of its admission. If, by denying a suspect his constitutional right to see a lawyer and perhaps be advised against making a statement, the state's case is thereby strengthened by a confession, it is by no means self-evident that fairness demands its admission rather than its exclusion."

However, in New Zealand the cogency of the evidence is routinely taken into account in this balancing exercise: R v Shaheed [2002] 2 NZLR 377 (CA), especially at paras 151-152. At para 151 the joint judgment (Richardson P, Blanchard and Tipping JJ) states: "A trial is not to be regarded as potentially unfair by reason of the admission of evidence unless that evidence may lead to an unsafe verdict." That, with respect, needs to be read with some caution. A safe verdict is not a cure-all for trial unfairness. That point was made strongly by Lord Steyn (Sir Swinton Thomas concurring) in Ebanks v R (Cayman Is) [2006] UKPC 16 (27 March 2006), blogged 28.3.06, at para 40. The Supreme Court acknowledged the same point in Sungsuwan v R [2005] NZSC 57 (25 August 2005), blogged 26.8.05, per Elias CJ at para 6 (putting as alternatives trial unfairness and unsafe verdicts), Tipping J at 112 (lack of a fair trial is itself a miscarriage of justice without the need to consider its effect on the verdict).

If I may, I should add that "cogency", which means being convincing or compelling, is always a matter for the jury. It is usually called the "weight" that is to be given to the evidence. Weight is separate from the question of admissibility, except on occasions where it is possible for a judge to conclude that no reasonable jury could give the evidence any weight. The Privy Council is correct to see no reason to link cogency to admissibility. However, this is not the end of the matter. What is being considered is not the admissibility of the evidence, but rather whether, as admissible evidence, it should be excluded because of the objectionable way in which it was obtained. The question whether convincing or compelling admissible evidence should be excluded is, appropriately, part of the weighing of the public interest in bringing suspects to justice. There is, though, a difficulty: the cogency of the evidence is also appropriately considered on the other side of the balance, where weight has to be given to the public interest in prevention of such abuse of process as would bring disrepute to the administration of justice. One might properly object to the inclusion of "cogency" in the weighing process on the basis that it falls on both sides of the scales.

That aside, having said that the exclusion of evidence to prevent the trial being unfair to the accused is separate from the public policy discretion, I should now make the distinction clear. A fair trial for the accused is one where the law is accurately applied and the facts are determined without bias. There may be flow-on effects of a wrongful exercise of the public policy discretion, in the sense that the trial may not be one where the law has been accurately applied. The question, in terms of trial fairness, of the significance of the error, will be determined, not by the strength of the other evidence against the accused, but by whether the error put the accused at a disadvantage in the trial. I made this point in the blog entry on 29 March 2006, discussing Gilbert v R (Grenada) [2006] UKPC 15 (27 March 2006).

Simmons is an example of the error in applying the public policy discretion not affecting the fairness of the trial. The statements in issue were partly exculpatory and the accused who gave evidence adopted what he had said. The judgment does, however, focus on the strength of the other evidence of guilt, concluding, para 31, that acquittals would have defied all reason. The relevance of this point is that the proviso could be applied: the error in admitting the statements did not amount to a "substantial miscarriage of justice." The error caused neither trial unfairness, nor the loss of a real chance of acquittal.

You may not get what you want ...

The crime of attempting to commit a crime has come under scrutiny in L v R [2006] NZSC 18 (30 March 2006), which concerned the state of mind required for liability.

The facts of L were extraordinary. The charge, faced by L, a 49 year old woman, was attempting to sexually violate a 15 year old male. She tried to cause his (presumably erect) penis to penetrate her vagina, being reckless as to whether or not he consented to that. In the circumstances, it seems to have been the case that his lack of consent should have been apparent to her.

The legal question was whether, to be liable for the attempt, L had to intend that he not consent, or was it sufficient that she merely be reckless (ie that she knowingly took a risk) as to his lack of consent. The question arose because the crime of attempting to commit a crime requires the accused to have an intent to commit that crime.

Plainly, L intended that the penis enter her own vagina, and she did acts in an effort to bring that about. Was that intent sufficient? Or, in addition, did she need to be reckless about the male’s lack of consent? Or, did she need to intend both penetration and his lack of consent?

There has been some division among the jurists on this general issue. As Simester and Brookbanks, Principles of Criminal Law, point out at para 6.1.1, the decision is one of public policy. Criminalising attempts is often justified because of the danger posed to society by a person who sets out to cause harm. That is, one whose intention is dangerous, albeit that his (here, her) acts may not constitute actual harm. This sort of deliberation suggests that intention should be given a narrow meaning, so as to exclude people who are reckless about circumstances such as consent. But, that narrow meaning would create anomalies (as has been pointed out by Professor Ashworth, cited ibid): imagine two men who set out to have sexual intercourse with two women. Both men are reckless as to consent, and neither woman consents. One man succeeds in penetration, and is guilty of rape. The other fails to penetrate, and, under this narrow view, is guilty of neither rape nor attempt to rape.

In L the Supreme Court held that recklessness (in the sense of absence of a reasonable belief in consent) as to circumstances is sufficient for liability for the attempt: what has to be intended here is the act of penetration.

All well and good. We are left with a lingering image of the facts of the case. In future, will people charged with sexual violation claim they did not consent, and that the other person should be charged?