Hidden badness

An attack by an accused on the character of a prosecution witness, especially a complainant, may result in the court being informed of the accused’s bad character. In DS v HM Advocate [2007] UKPC D1 (22 May 2007) the accused challenged the validity of Scottish legislation to this effect, on the basis that it infringed his right to a fair trial.

Lord Hope noted that the accused’s right to a fair trial is absolute:

“17. … The Convention right that the appellant invokes is his right to a fair trial. This was described in Salabiaku v France (1988) 13 EHRR 379, para 28, as a fundamental principle of law. In Doorson v The Netherlands (1996) 22 EHRR 330, 358, para 67 the Court said that its task was to ascertain whether the proceedings as a whole were fair. In Dyer v Watson, 2002 SC (PC) 89, 113, I drew attention to the fact that a distinction must be made between those rights which are said by the Convention to be absolute and unqualified and those which are expressly qualified by provisions which permit them to be interfered with in certain circumstances. I said that the overriding right guaranteed by article 6(1) was a fundamental right which did not admit of any balancing exercise, and that the public interest could never be invoked to deny that right to anybody in any circumstances: see also Montgomery v HM Advocate, 2001 SC (PC) 1, pp 27E, 29F-G; Brown v Stott, 2001 SC (PC) 43, pp 60B 74B [also reported as Procurator Fiscal v Brown (Scotland) [2000] UKPC D3]. The fundamental nature of the right to a fair trial has been stressed repeatedly in subsequent cases both in the Judicial Committee and in the House of Lords: R v Forbes [2001] 1 AC 473, para 24; Porter v Magill [2002] 2 AC 357, para 87; Millar v Dickson, 2002 SC (PC) 30, para 52; Mills v HM Advocate, 2003 SC (PC) 1, para 12; Sinclair v HM Advocate, 2005 SC (PC) 28, para 37. The law-making powers of the Scottish Parliament do not permit it to pass laws which will deny an accused a fair trial.”

Under the relevant legislation, in the circumstances that arose in this case, it was for the accused to show that “the interests of justice” favoured non-disclosure of his prior conviction. As to this phrase, Lord Hope said:

“49. … the words "the interests of justice" should be read, in this context, as directed primarily to the accused's right to a fair trial. This issue should be addressed in the light of what I have already said about the reasons why previous convictions for sexual offences or an offence in which a substantial sexual element was present may be relevant. The objection should be tested in the light of what use may properly be made of the conviction with regard to the accused's propensity to commit the offence charged, and what use may properly be made of it with regard to his credibility if he were to give evidence or has made exculpatory statements before trial. The test needs to be exacting in proceedings on indictment, in view of the risk that the jury may attach a significance to the conviction which, due to its age or other factors, it cannot properly bear.”

Whether juries are likely to treat the accused’s previous convictions correctly is a matter that we have seen commented on in R v Becouarn [2005] UKHL 55 (blogged 5 August 2005), not cited in the present case, where a jury study was quoted. However, in DS the Privy Council took a robust approach to this point. Lord Rodger, with whom all the other members of the Board agreed, said:

“85 … [the section allowing the accused’s conviction to be revealed, once he had attacked the complainant’s character] would provide an element of parity or balance in the treatment of the two sides by giving the jury an opportunity, when considering their verdict, to have regard also to what the accused had done on other occasions. The balance between the two sides is not perfect: it is tilted in the accused's favour since the jury only get to know about his previous criminal sexual misbehaviour. Any other behaviour or any other aspects of his character or any condition or predisposition are not revealed.”

Baroness Hale also upheld the fairness of the legislative scheme:

“94 There is nothing intrinsically unfair in a court hearing evidence of an accused person's character and conduct, provided that it is relevant to something which the court has to decide. Our historic reluctance to trust the jury with this information arises from the fear that they may give it more weight than it deserves or regard it as proving that which it does not prove. The answer to that does not have to be to withhold it from them; they can be given clear and careful directions about how to use it.”

Lord Brown summarised the accused’s argument and answered it as follows:

“102 … having won the initial ruling that the evidence [of the complainant’s bad character] is required to enable him to defend himself properly, he submits that no inhibition should thereafter be put in his path; he should not be subjected to the pressure of having to choose between two evils: either forgoing the opportunity to advance his defence properly or allowing the jury to learn of his previous convictions of which otherwise they would have remained in ignorance.

“103 Plausible and beguiling though at first blush this argument may appear, it is to my mind founded upon a central fallacy. The long and the short of it is that the accused has no fundamental right to keep his past convictions from the jury. There is nothing intrinsically unfair or inappropriate in putting these into evidence and, indeed, in doing so not merely on the limited basis that they go only to the accused's credibility (the fiction which to my mind disfigured the administration of criminal justice in England and Wales for far too long, now at last ended by the Criminal Justice Act 2003—see particularly sections 101(1)(d) and 103(1)(a)) but on the wider ground that they bear also on the accused's propensity to commit offences of the kind with which he is charged.”

Great reliance is placed on the ability of the trial judge correctly to warn the jury about the use to which they may put the evidence of the accused’s bad prior conduct, and great reliance is also placed on the ability of juries to follow such directions. This latter reliance appears to be misplaced in the light of the jury study cited in Becouarn, above. Should decisions about the fairness of trials rest on legal assumptions that may not be justified in fact?

Howse of discontent

Another case (in addition to Bain, also decided on 10 May 2007, see blog below) in which a Court of Appeal thought that the case against the accused was strong enough to make errors at trial insufficient to amount to a substantial miscarriage of justice, is Bernard v The State (Trinidad and Tobago) [2007] UKPC 34 (10 May 2007).

Here, the court had compelled the accused to be represented at his murder trial by an inexperienced lawyer, who had only been admitted to the bar three months previously. There had been a failure to disclose material facts to the defence, as well as an understandable failure to make the most of the available forensic techniques that a more experienced counsel (“an older hand” para 25) would have had at his disposal.

The Board cited Randall v The Queen [2002] UKPC 19, [2002] 1 WLR 2237, 2251 as authority for the approach to take on the question whether errors at trial have resulted in unfairness, quoting para 28 of Randall:

“While reference has been made above to some of the rules which should be observed in a well-conducted trial to safeguard the fairness of the proceedings, it is not every departure from good practice which renders a trial unfair. Inevitably, in the course of a long trial, things are done or said which should not be done or said. Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated and particularly if, where appropriate, they are the subject of a clear judicial direction. It would emasculate the trial process, and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed that was incapable of attainment in practice. But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.”

And added (para 29 of Bernard):

“There are statements in the Australian case of Wilde v The Queen (1988) 164 CLR 365 which, if taken out of context, could give support to a proposition that where the evidence against a defendant is overwhelmingly strong, the defects in procedure required for setting the verdict aside on the ground that the trial was unfair have to be such that there has scarcely been a trial at all. The Board applied the decision in Wilde v The Queen in the New Zealand appeal of Howse v The Queen [2005] UKPC 30, but it is not to be taken to have approved this formulation as the universally necessary criterion for proof of unfairness of a trial. In the context of the incorrect admission of evidence, the strength of the rest of the evidence will be material, but in a case of procedural unfairness their Lordships would regard the statement which they have quoted from Randall v The Queen as the appropriate approach. Determination of such an issue involves weighing the seriousness of the irregularities. If the defects were relatively minor, the trial may still be regarded as fair. Conversely, if they were sufficiently serious it cannot be accepted as fair, no matter how strong the evidence of guilt. In such a case it may also be said that the defendant was deprived of his constitutional right of due process.”

The distinction made here is between cases, like Howse, where the error at trial had been the wrongful admission of evidence, and cases like the present appeal, where the question was whether the error had involved procedural unfairness.

Whether this is a clear distinction remains to be seen. The wrongful admission of evidence could result in the fact-decider undertaking a biased task, so creating procedural unfairness, just as failure to disclose material facts to the defence, or failure to cast the doubt on the prosecution case that could have been cast, also gives rise to procedural unfairness.

Perhaps the Privy Council is, in Bernard, tactfully disagreeing with the contentious decision in Howse, where the Board was split 3-2. This, however, may be doubted, because this judgment was delivered by Lord Carswell, who had delivered the majority judgment in Howse. However, a reader of these decisions who applies the rule-of-thumb “Lord Bingham is never wrong” will note his absence from Howse and his presence in Bernard, in which only one judgment was delivered. Did Lord Bingham prompt this subtle qualification of the application of Wilde?

Justices Marple, Holmes and Poirot

Stating the law is one thing, applying it another. An appellate court may be able correctly to state the way it should approach the question of whether there has been a substantial miscarriage of justice in the case before it, yet, when it comes to deciding the appeal, it may contravene its own statement of the law.

This fundamental error occurred in the New Zealand Court of Appeal’s decision which yesterday was overturned by the Privy Council: Bain v R (New Zealand) [2007] UKPC (10 May 2007).

The law as to how the question of substantial miscarriage of justice should be determined was set out by the Court, and quoted by the Board (para 35), as follows:

"The court went on, in paragraph 24 of its judgment, to observe that when fresh evidence is admitted, it must move on to the next stage of the enquiry
“which is whether its existence demonstrates there has been a miscarriage of justice in the sense of there being a real risk that a miscarriage of justice has occurred on account of the new evidence not being before the jury which convicted the appellant. Such a real risk will exist if, as it is put in the cases, the new evidence, when considered alongside the evidence given at the trial, might reasonably have led the jury to return a verdict of not guilty.”

“The court pointed out (paragraph 25) that its concern is whether the jury, not the court, would nevertheless have convicted had the posited miscarriage of justice not occurred. This was consistent with
“the fundamental point that the ultimate issue whether an accused person is guilty or not guilty is for a jury, not for Judges. The appellate court acts as a screen through which the further evidence must pass. It is not the ultimate arbiter of guilt, save in the practical sense that this is the effect of applying the proviso, or ruling that the new evidence could not reasonably have affected the result.”"

It was surprising, after such a precise statement of the appellate court’s role, that the Court of Appeal should then have embarked on a detailed analysis of the evidence and come to its own determination of the appellant’s guilt. As I observed in an article mentioning this case, “Proof, fairness and the proviso” [2006] NZLJ 156, 158 (copy available on this link): “ … we are left to wonder whether a jury would have reached the same conclusion at a new trial.”

The Privy Council held that only a jury could assess the impact of the fresh evidence that the defence had obtained. The Court of Appeal’s reasons for concluding that the appellant was guilty were based on assumptions and matters that had not been raised at trial. As to these (para 115):

“…The Board does not consider it necessary to review these points in detail, for three reasons. First, the issue of guilt is one for a properly informed and directed jury, not for an appellate court. Secondly, the issue is not whether there is or was evidence on which a jury could reasonably convict but whether there is or was evidence on which it might reasonably decline to do so. And, thirdly, a fair trial ordinarily requires that the jury hears the evidence it ought to hear before returning its verdict, and should not act on evidence which is, or may be, false or misleading. Even a guilty defendant is entitled to such a trial.”

And added (para 119):

“ … Where issues have not been fully and fairly considered by a trial jury, determination of guilt is not the task of appellate courts.”

The conclusion was that there had been a substantial miscarriage of justice (which became apparent only after the trial, when the fresh evidence came to light), that the convictions should be quashed and a retrial ordered.

The lesson here is that procedural fairness is of fundamental importance, and an improper focus on the apparent guilt of the appellant must not cause the appellate court to take over the role which is properly that of a jury.

As evidence of the temptation to overlook trial fairness and to focus on apparent guilt, we need only recall that in last year’s report by a retired High Court Judge on the likely occurrence of miscarriages of justice in trials in New Zealand, no criticism was made of the upholding of the Bain convictions.

Disorderly rights

Offences of disorderly behaviour, involving the simplest of facts, can provide the basis for interminable disputation among jurists. This affords students an introduction to the role of law, the need for certainty and the problem of definition of crime, the proper scope of judicial discretion, the nature of judgment, and the complicating influence of competing rights on the definition of the offence.

Also, such apparently simple cases can be occasions for judicial disagreement as they proceed up the court hierarchy. A dogged appellant can eventually succeed, as happened today in Brooker v R [2007] NZSC 30 (4 May 2007). In this case, the successful appellant represented himself before the Supreme Court, thereby illustrating what many may suspect: it’s the issues, not the lawyers, that matter.

The judges took 288 paragraphs to deliver their separate judgments, and the case was decided by a bare majority of 3 to 2. As Thomas J, one of the dissenters, pointed out (para 150), in all, 10 judges had considered the case, 7 of them were in favour of convicting, and only the 3 majority judges at this final appeal stage effected the quashing of the conviction. That, of course, is an illegal count, comparing – if one might carefully choose one’s fruit – apples with oranges.

For our purposes, the result of the case doesn’t matter. We are more interested in how judges differ in their approaches to deciding how the actus reus of the offence is affected by the existence of competing rights.

I should point out that vagueness in the definition of an offence is not unusual. Most offences can be attempted, and the attempt is a separate offence. To be guilty of an attempt, one must perform an act that is sufficiently proximate to the commission of the full offence to constitute an actus reus of an attempt. Proximity is vague, and fact-dependent. Nevertheless, the courts have worked out various ways of asking whether particular circumstances disclose sufficient proximity. Those cases, certainly not always free of controversy, do not involve the added complication of conflicting rights.

In Brooker, the complication of competing rights was approached in two different ways. In the first, one right was seen as a limitation on the other. The complainant’s right to privacy was seen as a limitation on the accused’s right to freedom of expression, and the question was whether this limitation was justified. If it was, the defendant was guilty. This approach is evident in the majority judgments of Blanchard J (para 69), Tipping J (91).

The second way of dealing with the complication of competing rights does not involve justifying the limitation to the defendant’s right to freedom of expression. Instead, the competing rights are put against each other: the right to freedom of expression as against the right to privacy, and the question is which the balance favours. The dissenters, McGrath and Thomas JJ take this approach (paras 136, 231 respectively).

The other judge, Elias CJ, held that the lower courts had applied the wrong test for what disorderly behaviour means, failing to require a serious disruption to public order, and allowed the appeal because of that error. She added that the defendant could not have been convicted on the correct approach.

The two approaches, summarised above, to dealing with the complication of competing rights in the context of a vaguely defined offence, deserve some reflection. They reveal a difference in the idea of the role of rights in society. For Tipping J, the question was what a reasonable citizen should be expected to bear (para 91): how much disorderly behaviour should a reasonable citizen be expected to bear in the interests of upholding the defendant’s right to freedom of expression? The focus is on the impact on the defendant’s right, because the question is basically what is the proper scope of the criminal law? This may seem a little odd, since it is the defendant who is initiating the conflict. One might have thought that the question should be put as, what limitation on his right to freedom of expression should the defendant be expected to bear (by incurring criminal liability), in the interests of upholding the complainant’s right to privacy?

In contrast to rights limitation, the other approach, elaborated carefully by Thomas J, involves rights balancing. Pragmatists will appreciate his reference to the test of the “reasonable person” (para 199), echoing that introduced by the famous pragmatist Oliver Wendell Holmes Jr. Thomas’s pragmatism has been noted in these blogs before. Some, too, will appreciate his reference to Barak’s “The Judge in a Democracy” (para 177).

Central to this pragmatist view of rights are the ideas that everyone is entitled to be treated with equal concern and respect (para 171), and that the right to dignity is central to all human rights. Primacy is not accorded, as a starting point, to the rights of the defendant when they are in opposition to the rights of another citizen; this playing field is level (232). It is doubtful that, at this point, Thomas J was intending to suggest that all rights will have equal weight in a balancing exercise.

Theory is one thing, putting it into practice another. We do not have to agree with Thomas J’s conclusion on the facts of the case. It is difficult to form a view of these, because each judge, in reporting the facts of the case, puts them in a light which tends to support his or her conclusion. Such is the way of humans.

Questions remain about which of the two approaches, rights limitation or rights balancing, is appropriate to the decision whether behaviour constitutes an actus reus. The four judges who considered this split 2-2. The balancing approach is familiar in the context of determining the admissibility of evidence obtained improperly, where the public policy discretion arises from the need to prevent abuse of process and the related need to avoid bringing the administration of justice into disrepute. The definition of offences, however, has traditionally been based on utilitarian grounds, whereby, as JS Mill put it, the state is justified in restraining the freedom of those within its jurisdiction only to the extent that such restraint is necessary to prevent harm.

Multiple intents

When does an agreement to do one specific unlawful thing extend to encompass the doing of another unlawful thing? And when does a lawful purpose prevent liability for an unlawful purpose?

Two people might, for example, agree to stop traffic in order to prevent an accident at the scene of a breakdown. They have two intentions: to stop traffic, and to prevent an accident. Do these two intentions exist without qualifying each other, so that the legal consequences of one are unaffected by the existence of the other?

In DPP v Hurnam (Mauritius) [2007] UKPC 24 (25 April 2007) there is a reminder of these sorts of questions, although the case itself is a straightforward one. A criminal lawyer (the respondent) had been convicted of conspiring to hinder police by fabricating an alibi for a client, Bholah, in order to mislead the police in their investigation of a robbery. The Supreme Court of Mauritius had allowed his appeal against conviction on the basis that the prosecution had to prove an intention to hinder the police, as distinct from an intention to fabricate an alibi. The Privy Council restored the conviction.

“[20] …The Supreme Court was in their Lordships' view wrong to have regard only to the ultimate object or intention of the parties. A conspiracy may have several objects (cf the discussion in Williams, Criminal Law, The General Part, para 217) and one of the objects may constitute a means of achieving the ultimate object. As Webster J said in Lewis v Cox [1985] QB 509, 517 in the context of obstructing a police constable in the execution of his duty:

“" … a court is not obliged … to assume that a defendant has only one intention and to find what that intention was, or even to assume that, if he has two intentions, it must find the predominant intention. If, for instance, a person runs into the road and holds up the traffic in order to prevent an accident, he clearly has two intentions: one is to hold up the traffic, and the other (which is the motive of that intention) is to prevent an accident. But motive is irrelevant to intention in the criminal law …"

“In this case the parties intended to assist Bholah to escape criminal liability, and they did so by means of fabricating an alibi, which would have the foreseeable and intended result of diverting the police from investigating his actions, so hindering their enquiry into the commission of the robbery. The immediate intention of their agreed course of conduct was to hinder the police in the accomplishment of their ultimate aim of exculpating Bholah. That in their Lordships' view was an agreement to hinder the police, sufficient to constitute the conspiracy with which the appellant was charged. The fact that the respondent and Bholah had an ultimate aim of exculpating the latter does not invalidate that conclusion.”

The Board mentioned (para 23) a couple of general points, the approach to findings of fact in lower courts, and the need to demonstrate a clear departure from the requirements of justice when appeals are as of right, as is the case in Mauritius. The Board declined to interfere with the sentence of 6 months’ imprisonment, holding that the delay (from 2000) had been occupied largely by the trial and the appeals process, and observing that the importance of maintaining the high standards of conduct at the criminal bar supported the sentence.

This case, while not deciding any new point of law, serves as a reminder that the concept of agreement, as an element of conspiracy, can include more than one objective.

Judging the gatekeeper

In Wizzard v R (Jamaica) [2007] UKPC 21 (29 March 2007) the Privy Council was reminded of the decision of the House of Lords in R v Mushtaq [2005] UKHL 25, [2005] 1 WLR 1513 (blogged 22 April 2005). Although the facts of the present appeal did not require Mushtaq to be applied, some observations on it were made by the Board.

Because it is based on the ancient ("from the time of Lord Hale") common law principle against self-incrimination, Mushtaq was held to apply in Jamaica (and this implies, of course, that it extends to any other common law country unless there is legislation to the contrary effect), and to apply retrospectively to cases heard before Mushtaq was decided.

Mushtaq held that a jury must be directed, where the matter is in issue, that if they are not satisfied that a statement was made by the accused in the absence of oppression, they must ignore it.

Prior to Mushtaq, the Judicial Studies Board in England had approved a direction which, once the judge had decided the oppression point against the accused and ruled the statement admissible, the jury could give it what weight they wished, even if they thought it could have been made as a result of oppression. Thus, Mushtaq made an important correction to the way the law had developed.

Technically, what the jury is doing under the Mushtaq direction, is not deciding the admissibility question (which is a matter the judge had decided), but instead is deciding that, because of the possibility of oppression, the statement should be given no weight and it should be ignored. That, of course, is a highly technical distinction, but it has importance in preventing erosion of the standard that the judge must apply to the question of whether there was oppression.

It would be wrong for a judge to think that, because the jury can decide to ignore the statement, it may as well be ruled admissible even where there is a real risk that it had been obtained by oppression. The challenge for those involved with making judges apply the law with integrity is to ensure that this sort of error does not occur.

Inferences

An area of the law of evidence that has long been a subject of discussion and confusion is the drawing of inferences. In R v Hillier [2007] HCA 13 (22 March 2007) the High Court of Australia corrected an error of reasoning by an appellate court on this topic.

The accused had been convicted of murdering his estranged wife, his motive being alleged to be to obtain custody of their children. There was only circumstantial evidence of his guilt. The Court of Appeal (ACT) had quashed the conviction, holding ([2005] ACTCA 48 at [105]):

"other aspects of the evidence, such as that relating to the unusual features of the injuries she suffered and the apparent use of the handcuffs … [made] it difficult to reconstruct what actually occurred on the night in question and the evidence suggesting that another person may have been present at the time of her death".

The Court of Appeal found that this made it impossible to conclude, beyond reasonable doubt, that the accused was guilty.

As the High Court pointed out, it is wrong to isolate pieces of evidence and use them to support an inference inconsistent with guilt. Gummow, Hayne and Crennan JJ, jointly, with Gleeson CJ concurring, and Callinan J agreeing in allowing the Crown’s appeal (but who would have ordered a retrial, rather than, as the others did, remit the case to the Court of Appeal for reconsideration), held at para 46:

“The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances [footnote: See, for example, Martin v Osborne (1936) 55 CLR 367 at 375; Plomp v The Queen (1963) 110 CLR 234 at 243 per Dixon CJ.]. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence [footnote: Shepherd v The Queen (1990) 170 CLR 573 at 579 per Dawson J].”

So, because there were circumstances consistent with innocence, the question was whether, in the context of all the evidence in the case there was a reasonable doubt.

This is a slightly different matter from another circumstantial evidence problem that causes much debate: to what standard must circumstantially-proved facts be established before they can be used to support an inference of guilt? In some cases, where the reasoning progresses along a logical path, each step depending on the one before, the answer is clearly that each link in the chain of reasoning must be proved beyond reasonable doubt. But even here, this is not to say that, where more than one item of evidence is needed to constitute proof of the fact relied on for each step, each must be proved beyond reasonable doubt. That is because, where something is proved by circumstantial evidence, the circumstances must be seen in combination, not in isolation. In isolation, they might be doubtful, but the question is whether, in combination, they must be true and, in the case of reasoning in logical steps, each necessary step in the reasoning is established.

It is only the elements of an offence that need to be proved beyond reasonable doubt; other facts need not be.

It is unlikely that there is a difference between the laws of Australia and New Zealand in this regard, although the matter has not always been clear. The High Court of Australia, in the present case at para 48, quoted with approval an earlier decision (the famous “the dingo’s got my baby!” case R v Chamberlain (No 2) (1984) 153 CLR 521 at 535) in which R v Thomas [1972] NZLR 34 at 37-38, 40 was cited. Thomas was a notorious case in New Zealand, the convicted accused ultimately being pardoned. Thomas has also been cited with approval in Canada: R v Morin (1988) 44 CCC (3d) 193.

However, the standard of proof of facts which form the basis for inferences of elements of the offence, may not be universally agreed. The position in Australia was recently summarised by Kirby J, in a case not cited in Hillier: De Gruchy v R (2002) 211 CLR 85 (HCA), at para 47:

“In Australia, but not in England [footnote: Hodge's Case (1838) 2 Lewin 227 [168 ER 1136] per Alderson B; McGreevy v Director of Public Prosecutions [1973] 1 WLR 276; [1973] 1 All ER 503. Samuels, "Circumstantial Evidence", (1986) 150 Justice of the Peace 89] and some other countries, [footnote: As to New Zealand, see R v Hedge [1956] NZLR 511; R v Hart [1986] 2 NZLR 408 at 413; cf Police v Pereira [1977] 1 NZLR 547. As to the position in Canada see R v Cooper [1978] 1 SCR 860 and in the United States see Holland v United States 348 US 121 (1954)] a rather strict approach is taken to the instruction that must be given about circumstantial evidence. The jury must be warned that the primary facts, from which an inference of guilt is to be drawn, must themselves be proved beyond reasonable doubt. The inference of guilt must be the only inference that is reasonably open on all the primary facts which the jury find to be established to the requisite standard of proof. [footnote: Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 599 per Brennan J; cf R v Van Beelen (1973) 4 SASR 353 at 379-380. See also Peacock v The King (1911) 13 CLR 619 at 634; Glass, "The Insufficiency of Evidence to Raise a Case to Answer", (1981) 55 Australian Law Journal 842 at 852-853.”]"

This is not to say that these primary facts must individually prove guilt beyond reasonable doubt.

Interestingly, in Chamberlain (No 2), and in Thomas, the courts were ultimately shown to have been wrong to uphold convictions, because of errors in the evidence upon which inferences of guilt were based. In Chamberlain (No 2) the red splashes in the car were not, it was later discovered, blood; in Thomas the police were later found to have planted evidence in order to connect the accused with the murder. Perhaps, in now being more rigorous in its requirements concerning the factual basis for inferences, Australia has learnt a lesson that New Zealand still has not.

The third way

For an interesting study in how the most senior judges can differ over problems in criminal law, one need go no further than yesterday’s decision by the High Court of Australia in R v Taufahema [2007] HCA 11 (21 March 2007).

Here, a policeman had been shot dead by a man who got out of a car, of which the respondent, in this Crown appeal, was the driver. There were four occupants in this car, all on parole, all carrying guns, and with them in the car were 2 pairs of gloves and a hockey mask. The car had been, briefly – for up to 20 seconds – chased by the officer in a patrol car, until it came to a halt in an accidental collision. That was when the murderer, Mr P, got out with his gun and killed the victim.

The prosecution’s case had been advanced in two ways at trial. Initially, it was alleged that the men in the car had agreed among themselves to use guns to prevent their being apprehended. By the end of the evidence in the trial, the prosecutor, after a lengthy discussion with the judge, decided to put the case to the jury on the basis that the common agreement between the men was simply to assist each other to avoid apprehension. The advantage this gave the prosecution was that it was unnecessary for the jury to decide that the use of a gun was part of this common agreement. The respondent, Mr T, was convicted of murder as a secondary party, and that must have been because the jury was satisfied that he had foreseen the possibility that, in avoiding arrest, one of the others would use a gun.

Mr T appealed against his conviction to the CCA NSW, on the basis that before he could be liable in this way, a common intent to commit a crime would have to be proved, and here, escaping apprehension was not a crime. Since there was no “foundational” crime, the CCA quashed his conviction and entered an acquittal. The Crown applied, in this present case, to the High Court of Australia for leave to appeal this decision, and for an order for a new trial.

The High Court held, by a majority of 4 to 3, that there should be a new trial. The dissenters were, jointly, Gleeson CJ and Callinan J, and in a separate judgment, Kirby J. The majority (Gummow, Hayne, Heydon and Crennan JJ) delivered a joint judgment.

The Crown’s application was to advance the case on the basis that the men in the car had planned to commit robbery, and this killing was a foreseeable consequence of the pursuit of that common purpose. This way of inviting a conviction had not been offered before in the proceedings.

The main issues were:

•  Should the public interest in the prosecution and conviction of offenders govern the decision?
  
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•  Should the prosecution be bound by its tactical decisions at trial?
  
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•  Would ordering a new trial amount to giving the prosecution an opportunity to make a new case, contrary to principles of avoiding double jeopardy?
  
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•  Should the prosecution be allowed to raise the new point on appeal, when it hadn’t raised it either at trial or on the appeal in the court below?
  
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•  Was there sufficient evidence of the newly proposed common purpose to warrant a new trial?
  
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•  How difficult should it be for an appellate court’s order for an acquittal to be overturned?
  
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•  How much involvement should judges have in the way the prosecution chose to bring its case, especially if the prosecution could be said to have squandered its chances at trial?
  
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•  Does the jurisdiction of the High Court of Australia include acting as an appellate court or as a court of error? Is the HCA limited to reviewing the exercise of a discretion by the CCA?
  
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•  Was there a miscarriage of justice for which a more adequate remedy was available than an order for a new trial, or did the fact that this was the murder of a policeman require a decision by a jury rather than an acquittal arising from a deficiency in the law?
  

The case illustrates how important matters of policy can arise from relatively straightforward facts. So many policy issues arose here that any decision could have been justified, which explains the 4 - 3 division between the High Court justices.

The problem with the case at the trial was that the prosecution became conscious of the weakness of the available inference of agreement to use a gun to prevent apprehension, which was the original basis on which it put its case. Instead of accepting almost inevitable defeat, the prosecution changed its stance. It would have been possible to allege, at the outset, liability in the third way - that identified on appeal, involving an allegation of an agreement to commit robbery. Had that been done, the defence would have been fully informed of its jeopardy before the trial.

Sometimes, however, mistakes just can't be allowed to happen.

Lurking doubts

Recently the Privy Council has reminded us of the appropriate way to approach the question whether there has been a substantial miscarriage of justice in a case, requiring the quashing of a conviction: Dookran v The State (Trinidad and Tobago) [2007] UKPC 15 (7 March 2007).

The facts of the case, which are a tale of sex, love, jealousy, and death, do not need to be traversed here. At issue, in respect of the appeal by one of the two appellants, the daughter, was whether the Court of Appeal had applied the proviso correctly. That Court, having decided that her statement should not have been used in evidence, nevertheless concluded:

“In all the circumstances we hold that the case against this appellant was strong even in the absence of the statement and there was no miscarriage of justice.”

The Privy Council pointed out that this was the wrong test, para 14:

“On the contrary, the Court of Appeal were entitled to apply the proviso and uphold [her] conviction only if they could be satisfied that, without that evidence, a reasonable jury would inevitably have convicted her. The Court of Appeal did not apply that test and so their conclusion that there was no miscarriage of justice and that her appeal should be dismissed was fundamentally flawed.”

Given that the Court below had applied the wrong test, what should the Privy Council do? Obviously, it had to apply the correct test: would a reasonable jury inevitably have convicted? The other evidence against her was from an eyewitness (her sister) to the killing, who had been treated as a suspect when interviewed by the police. At trial, the prosecution case was that her evidence was supported by the appellant’s own statement. Having held that that statement should not have been used in evidence, the eyewitness evidence was unsupported. The Privy Council concluded, para 17:

“It is impossible to affirm that, without that corroboration from the admission statement, any reasonable jury would inevitably have rejected the criticism of [the eyewitness’s] evidence and relied on her evidence alone to convict [this appellant]. In these circumstances there is no room for applying the proviso.”

The other appellant was the mother of the first appellant (and, indeed, of the victim and the eyewitness). The Board summarised the basis of the argument for her as follows, para 28:

“Although reference to lurking doubt has been criticised from time to time as an unwarranted gloss on the language of the statute regulating appeal proceedings in England and Wales, it is really just one way in which an appeal court addresses the fundamental question: Is the conviction safe? In the vast majority of cases the answer to that question will be found simply by considering whether the rules of procedure and the rules of law, including the rules on the admissibility of evidence, have been applied properly. Very exceptionally, however, even where the rules have been properly applied, on the basis of the "general feel of the case as the Court experiences it", there may remain a lurking doubt in the minds of the appellate judges which makes them wonder whether justice has been done: R v Cooper [1969] 1 QB 267, 271, per Widgery LJ.”

In considering whether there was this sort of lurking doubt, the Board mentioned the following points. The mother’s statement was taken in circumstances not unrelated to those in which inadmissible statements had been taken (para 31). The trial judge seemed to have been concerned that too much weight might be given to her statement (para 32). There were factors which could have made here more vulnerable than an average person when interviewed in the police station (para 33). A material witness to the events in the police station was not available to give evidence at the trial (para 34). The factors affecting the credibility of the eyewitness also applied to this appellant (para 35). These matters led the Board to conclude:

“…their Lordships cannot avoid a residual feeling of unease about whether justice has been done in [the mother’s] case and so about the safety of her conviction. …”.

This case is a straightforward illustration of how appellate courts should approach the application of the proviso when complaints are made alleging the wrongful admission of evidence. It is noteworthy that the appellate court should not go about constructing a case against the appellant in place of the flawed case at trial. It should not try to explain away inconvenient circumstances in order to uphold a conviction. It should not, even, apply a high burden on the appellant of showing a reasonable doubt, in the sense of a doubt based on reason, or logic.

Trial by unjust law

Today’s decision by our Supreme Court, Hansen v R [2007] NZSC 7 (20 February 2007), holds that some trials are conducted under law that is an unjustifiable limitation on the presumption of innocence.

The implications of this are considerable. Do such trials contravene the accused’s right to a fair trial, which is an absolute right, so that convictions obtained at them cannot be upheld?

Should Parliament reform the impugned law, s 6(6) of the Misuse of Drugs Act 1975, so that it does not place a legal burden of proof on the accused?

The foundation of Hansen is a finding by all 5 members of the Court that the expression “until the contrary is proved” can not mean “until a reasonable doubt is raised”. It is pointless, now, to dispute that, although in England and Wales that meaning is accepted.

The absence of a meaning that did not involve more than a justifiable limitation on the right to be presumed innocent meant that the Court had to apply the unjustifiable limitation (namely, that the accused had to prove, on the balance of probabilities, lack of intent to supply a drug).

Parliament had been assured by the Attorney-General in 2005, when it revised the offending provision, that there was no unjustified limitation of the accused’s rights. The Supreme Court has now decided that that assurance was wrong (although Blanchard J dissented on this point).

Justice McGrath put the position in this way:

“[254] Articulating that reasoning serves the important function of bringing to theattention of the executive branch of government that the court is of the view thatthere is a measure on the statute book which infringes protected rights and freedoms,which the court has decided is not a justified limitation. It is then for the other branches of government to consider how to respond to the court’s finding. Whilethey are under no obligation to change the law and remedy the inconsistency, it is areasonable constitutional expectation that there will be a reappraisal of the objectivesof the particular measure, and of the means by which they were implemented in thelegislation, in light of the finding of inconsistency with these fundamental rights andfreedoms concerning which there is general consensus in New Zealand society andthere are international obligations to affirm.”

None of the judges in Hansen considered whether trials where the offending provision applies will necessarily be unfair. One would expect that, in most cases, the provision will have little scope for real effect on the accused’s risk of conviction. It is only in borderline cases, where the accused has possession of a quantity of drug close to that at which he is presumed, by this provision, to have it for supply, that there is a risk that he will be found guilty although the jury was not satisfied beyond reasonable doubt that he had that purpose. He could then, perhaps, argue that the proceedings were biased against him, and that this bias, albeit required by law, was unjustifiable.

It is now unlikely that the prosecution will rely on the statutory presumption, in its present form,
where the amount of drug is close to the presumptive level. It is clear that the matter needs to be addressed by Parliament.

How satisfying was that!

The High Court of Australia has, this week, held that the requirement that a judge be “satisfied” of something (here, the appropriateness of revoking a non-parole period, which, in this case, would mean no possibility of release on a life sentence), does not entail a standard of decision analogous to a standard of proof: Leach v R [2007] HCA 3 (6 February 2007).

I have previously noted here some discussion over whether a standard of decision is applicable to requirements like the court having to be “satisfied”. I use the expression “standard of decision” to acknowledge that the decision is a matter of judgment, based on facts, and that those facts will have been determined to a standard appropriate to their context. Indeed, in Leach, the High Court of Australia distinguished between the factual matters on which the decision had to be based, these having to be proved beyond reasonable doubt, and the judgment on those facts whereby the court, having to be “satisfied” was exercising a judgment not amenable to a standard. See, in particular, para 47 of the joint judgment:

“…. The concept of a standard of proof, like the related concept of onus of proof, is apposite to the resolution of disputed questions of fact in issue in the litigation. Both onus and standard of proof concern the adducing of evidence at trial and the determination of which of the facts in issue are established by that evidence[citing Cross on Evidence, 7th Aust ed (2004) at [7005]; Stone, "Burden of Proof and the Judicial Process: A Commentary on Joseph Constantine Steamship Ltd v Imperial Smelting Corporation Ltd", (1944) 60 Law Quarterly Review 262]. Standard of proof is not a concept that is apposite to the resolution of a contested question of judgment of the kind required by [the relevant section], any more than it is apposite to the resolution of a disputed question of law.”

In contrast, the House of Lords in O v Crown Court at Harrow (blogged 31 July 2006) - not mentioned in Leach - held that in the context considered there, whether release on bail was appropriate, “satisfied” meant more than an exercise of judgment, and connoted a burden or presumption.

There is plenty of scope for discussion of this point, as requirements that a court be “satisfied” of something are common. In the Sentencing Act 2002[NZ], for example, s 24(2)(b) and s 86(2) apply this requirement to determination of facts at sentencing, and to deciding whether an extended non-parole period is appropriate, respectively.

Obviously, decisions in some contexts will be more important than in others, so the requirement that a judge be “satisfied” of a critical matter needs to accommodate that. This does not, however, mean that the standard of satisfaction, if there is a standard, will vary; instead, the weight of the considerations needed to meet the standard could be regarded as the variables. An analogous point was made in relation to “the balance of probabilities” in Sharma v DPP and others (Trinidad and Tobago) (blogged 11 December 2006).

Refusals to attach a standard to the requirement that the judge be “satisfied” are, no doubt, put on the policy basis that finality in litigation is desirable. Unless a lower court has taken into account irrelevant matters, or failed to consider relevant matters, or has been plainly in error, its decision on a discretionary matter should be final. On the other hand, where a decision concerns matters that are the subject of human rights, international trends are towards interpreting “satisfied” as carrying a standard of beyond reasonable doubt.

See also my discussion of proof and risk in relation to another House of Lords decision not cited
in Leach:  re McClean, 19 July 2005.

Appeal verdicts

How should an appellate court decide whether a verdict is safe? It is difficult to find agreement among senior appellate judges on the safety of verdicts, even where they express the relevant legal approach in similar terms. Only last week the Supreme Court of Canada split 5 – 4 on whether a verdict in a lower court was reasonable: R v Beaudry [2007] SCC 5 (31 January 2007).

I have previously mentioned here several cases on this difficulty: Dial v The State (Trinidad and Tobago) 17 February 2005, R v Stevens 25 October 2005, Taylor v R (Jamaica) 14 March 2006. And next month, the Privy Council will hear an appeal, the last from New Zealand, by David Bain, which concerns whether convictions for murders should be upheld in the light of fresh evidence.

In Beaudry the majority emphasised that it is the verdict that is reviewed, not the process that was followed to reach it. An error of reasoning in the lower court (here the trial was by judge alone, so reasons for the verdict were available for inspection on appeal) did not, of itself, mean that the verdict was unsafe; instead, the appellate court had to thoroughly reexamine the evidence, bringing to bear the weight of its judicial experience in deciding whether the verdict was a reasonable one (para 58).

I will, I hope, be forgiven for thinking that that is a very vague formulation of the proper appellate task. Some help might be obtained from a combination of dicta from the cases mentioned above, so that the question for the appellate court is whether a jury might, on a proper approach, have a reasonable doubt about the defendant’s guilt (Dial), bearing in mind that the jury may have different perceptions of the facts from the perceptions entertained by appellate judges (Stevens), and that the jury must rule out all inferences consistent with innocence before it can convict (Taylor).

Reliability and relevance

Concealed within the requirement that evidence, to be admissible, must be relevant, is a threshold of reliability.

It is a fundamental principle that relevant evidence is - subject to exclusionary rules -  admissible, and that evidence that is not relevant is not admissible: see, for example, s 7 of the Evidence Act 2006[NZ]. “Relevant” means having a tendency to prove or disprove anything that is of consequence to the determination of the proceeding. Is any “tendency”, no matter how slight, sufficient to establish relevance? Logically, the tendency of evidence to prove something must include a requirement that it has some reliability. The need for reliability can be seen from the use of that term in the Act.

The reliability requirement is found as an express requirement in the Evidence Act 2006[NZ], as a qualification on the admissibility of particular sorts of evidence. For example, hearsay evidence requires, from the circumstances in which it was obtained, “reasonable assurance that the statement is reliable” (s 18(1)(a)), unreliable statements by defendants in criminal proceedings must be excluded (s 28(2)), previous consistent statements must have been made in circumstances that provide “reasonable assurance” that they are reliable (s 35(3)(a)), and there are reliability rules concerning identification evidence (visual identification: s 45(1) and (2), voice identification: s 46). These references to reliability are consistent with the view that reliability is a fundamental requirement for admissibility.

A concept akin to reliability is probative value, but they are not the same. Evidence cannot have probative value unless it has reliability, and increasing reliability may lend the evidence more probative value, but not necessarily. Although highly reliable, evidence might have relatively slight probative value. Reliability reflects accuracy, whereas probative value is a reflection of the importance of the evidence to the logic of the case.

In the terminology of the Act, probative value is something that a judge must weigh against unfairly prejudicial effect, and this applies generally (s 8). The expert opinion rule in s 25 is governed by this probative value determination, because of its general application, but neither probative value nor reliability are mentioned in s 25. This raises the question: does expert opinion evidence have to be reliable before it can be admissible?

Expert opinion is admissible if (s 25(1)) “the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.” Here, “substantial help” may well be contingent on reliability; this seems to be the only route by which the common law requirements, of general acceptance of the opinion among experts in the field, can come into play in s 25.

Yesterday, the Supreme Court of Canada split 6-3 on what was essentially a difference about whether a threshold of reliability is a fundamental requirement for the admissibility of evidence: R v Trochym [2007] SCC 6 (1 February 2007). Here, the evidence was that of a witness who claimed to have seen a person she said was the accused, leaving the victim’s apartment, some time after the victim was murdered. She gave two versions of exactly when she had seen this: her first version was that the accused had left the day after the murder, but later, under hypnosis, she changed this to the same day as the murder. Was the version she had given under hypnosis sufficiently reliable to be admitted in evidence, so that its weight (probative value) could be assessed by the jury? Or, should the first question be whether her hypnotised version had sufficient probative value, compared to its unfairly prejudicial effect, for the matter of its weight to be left with the jury?

The majority (McLachlin CJ, Binnie, LeBel, Deschamps, and Fish JJ, with Charron J concurring but differing slightly, particularly as to the position on the part of the witness’s evidence that was not the subject of hypnotic inquiry) held that reliability is the fundamental requirement for admissibility as far as “novel scientific evidence” is concerned. Whereas in many areas of scientific inquiry the reliability of expert evidence is established, science develops:

“31. Not all scientific evidence, or evidence that results from the use of a scientific technique, must be screened before being introduced into evidence. In some cases, the science in question is so well established that judges can rely on the fact that the admissibility of evidence based on it has been clearly recognized by the courts in the past. Other cases may not be so clear. Like the legal community, the scientific community continues to challenge and improve upon its existing base of knowledge. As a result, the admissibility of scientific evidence is not frozen in time.

“32. While some forms of scientific evidence become more reliable over time, others may become less so as further studies reveal concerns. Thus, a technique that was once admissible may subsequently be found to be inadmissible. An example of the first situation, where, upon further refinement and study, a scientific technique becomes sufficiently reliable to be used in criminal trials, is DNA matching evidence, which this Court recognized in R. v. Terceira, 1999 CanLII 645 (S.C.C.), [1999] 3 S.C.R. 866. An example of the second situation, where a technique that has been employed for some time comes to be questioned, is so-called “dock”, or in-court, identification evidence. In R. v. Hibbert, 2002 SCC 39 (CanLII), [2002] 2 S.C.R. 445, 2002 SCC 39, at para. 50, Arbour J., writing for the majority, stated that despite its long-standing use, dock identification is almost totally unreliable. Therefore, even if it has received judicial recognition in the past, a technique or science whose underlying assumptions are challenged should not be admitted in evidence without first confirming the validity of those assumptions.

“33. … Even though the use of expert testimony was not in itself at issue in the present case — this appeal concerns the application of a scientific technique to the testimony of a lay witness — the threshold reliability of the technique, and its impact on the testimony, remains crucial to the fairness of the trial.”

The emphasis is on the threshold of reliability and the fairness of the trial. The majority concluded, para 55, and 65-66, that “this technique and its impact on human memory are not understood well enough for post-hypnosis testimony to be sufficiently reliable to be used in a court of law.” That applies to the witness’s evidence on topics that have been the subject of hypnosis. As far as evidence from the witness about matters that have not been mentioned under hypnosis, (as held by the majority except Charron J) the judge determines admissibility by assessing whether the detrimental effects of hypnosis are outweighed by the probative value of the evidence (para 64). Charron J would not require the balancing exercise to automatically apply here (para 87), and she would also allow evidence of topics covered under hypnosis to be given if supported by a pre-hypnosis consistent statement (para 88).

The minority (Bastarache, Abella and Rothstein JJ) would have admitted the post-hypnotic evidence, preferring not to change the rule. They declined to classify this area as novel science, and would have confined the reliability test, in this context, to novel science. They considered that the majority had placed too high a standard for consensus in the expert community. In particular, they held that the majority’s approach, which took judicial notice of cases in the USA in which experts had expressed doubts on the reliability of testimony by witnesses who had been hypnotised, amounted to denying a party in the present case the opportunity to cross-examine those experts.

The Court in Trochym was unanimous on another aspect of the appeal: similar fact evidence had been wrongly admitted. A single incident (knocking on the victim’s door after a fight with her) did not disclose a pattern of behaviour, and was not unique conduct that identified the offender (paras 74-78, 83; 185, 187).

This case illustrates that there are times when the judge cannot simply say that the issue of admissibility depends on whether the probative value of the evidence outweighs its unfairly prejudicial effect. The first requirement is relevance, and relevance depends on whether the evidence has a tendency to prove or disprove a matter in issue, and that in turn depends on a threshold of reliability. Doubts about the probative value of evidence may extend beyond the balancing exercise, to the more fundamental question of relevance.

Propensity and logic

For my observations on the admissibility of propensity (similar fact) evidence under the
Evidence Act 2006[NZ], in the light of Bayes' Theorem and the requirements of logic,
Click here.

Stare decisis in the European Court

Some interesting points are illustrated in Young v United Kingdom [2007] ECHR 48 (16 January 2007). A prisoner was found to have been denied a fair disciplinary hearing, mainly because the Governor, who was the tribunal, was not appointed independently of the prosecuting agency, and also because no legal representation was made available to the prisoner. The European Court of Human Rights (Fourth Section), sitting as a Chamber, held unanimously that Article 6 of the European Convention on Human Rights had been breached; Judge Maruste delivered a separate concurring judgment in which he adhered to an earlier dissenting opinion he had expressed but distinguished it on the grounds that in the present circumstances a rigid application of prison rules had not been justified.

Dissenting judgments

The first point of interest, therefore, is to what extent judges should adhere to dissenting opinions that they have previously expressed. Judge Maruste’s dissent had been delivered in Ezeh and Connors v United Kingdom [2003] ECHR 485 (9 October 2003), and held that where the result of proceedings is to postpone release on parole, that is not the imposition of a new sentence, and it does not require a trial, or the sort of hearing that attracts the fairness requirements of Art 6. The majority held (para 123) that Art 6 did apply: “The reality … was that prisoners were detained in prison beyond the date on which they would otherwise have been released, as a consequence of separate disciplinary proceedings which were legally unconnected to the original conviction and sentence.”

Even though the majority Grand Chamber decision in Ezeh and Connors was 11 to 6, in terms of the ratio of that case the point of law was decided: prison disciplinary proceedings that may result in postponement of release must be fairly conducted. Should Judge Maruste (and the other dissenters in Ezeh and Connors) obey the law by abandoning their previous dissenting opinions? One of the other members of the Court in Young, Judge Pellonpaa, had also dissented in Ezeh and Connors; he did not repeat his own dissenting opinion.

[Update: another example of a dissenting Judge not repeating his dissent is Lord Hoffmann in Gibson v USA (The Bahamas) (blogged 26 July 2007): he declined to join the majority in overruling a case in which he had dissented (Cartwright v Superintendent of HM Prison [2004] UKPC 10); among the reasons for his now approving the majority's view in Cartwright was the point that the decision supported public policy and international treaty obligations, and it was not unjust.]

When are proceedings “criminal”?

For the right to a fair hearing to apply under Art 6, the proceedings must be “criminal” (or, in New Zealand, for example, they must involve a charge of an offence: NZBORA, s 25). To decide whether proceedings are “criminal”, the European Court considers the way the matter is classified in the relevant State law, but that is subject to the Convention; the nature of the accusation, and, as a separate point, the severity of any penalty that may be imposed.

There is no room for doubting the application of the right to a fair hearing where domestic law is clear, as in New Zealand, where “offence” is defined in the Crimes Act 1961, s 2, as meaning “any act or omission for which any one can be punished under this Act or under any other enactment, whether on conviction on indictment or on summary conviction.” Any doubts here would have to concern what “punished” means. Where proceedings do not involve a risk of conviction, the rules of natural justice apply: Drew v Attorney-General [2002] 1 NZLR 58, (2001) 18 CRNZ 465 (CA).

Waiver

Limitations on what amounts to waiver of convention rights were referred to in Young, at para 40. Waiver must be consistent with the public interest, it must be established in an unequivocal manner, and there must be minimum guarantees commensurate with the importance of the waiver. At para 41 the Court dealt with the question whether the applicant had waived her right to legal assistance as follows:

“According to the Government’s own account, the applicant was asked if she wished to have “help” at the hearing and the record of the adjudication indicated that, if she answered in the affirmative, she would be informed of the assistance and legal representation “possibilities”. There is therefore no indication she was in fact clearly offered legal representation for the hearing as opposed to the assistance of a friend/layperson. In addition, given the applicable domestic law and practice (outlined in the Ezeh and Connors judgment, §§ 59-62), any outline of the legal presentation “possibilities”, in the event of such an affirmative response from her, would not have indicated with any certainty that such representation would be available. Moreover, any choice would have been put to her at the adjudication hearing itself at which she was unassisted. Furthermore, she would have been required to respond to the Governor who conducted the hearing and who was charged with maintaining prison discipline and was responsible for the pursuit of the charges against her, for determining guilt or innocence and for fixing her sentence. The Court does not consider that, even accepting the Government’s submissions, the circumstances demonstrate that any choice by the applicant as regards legal representation could be considered unambiguous and free. Accordingly, and in so far as such a waiver would be permissible and not run counter to any important public interest, it is not established to have been unequivocal and accompanied by guarantees commensurate to its importance ….’

In New Zealand the requirements for effective waiver are under review. I have summarised recent developments in the text Misuse of Drugs, at para 1311, as follows:

"The giving of advice of rights to counsel is not to be an empty ritual .... In R v Kai Ji [2004] 1 NZLR 59; (2003) 20 CRNZ 479 (CA) it was held that telling the suspect of the availability of free legal advice was integral to the existence of the right to be informed of the right to consult a lawyer under s 23(1)(b) of the Bill of Rights. This is a departure from the holding in R v Mallinson [1993] 1 NZLR 528; (1992) 8 CRNZ 707 (CA) that the police do not have to facilitate the exercise of this right unless the suspect indicates a wish to exercise it. Although Mallinson was decided by 5 Judges, and Kai Ji by 3 Judges of the permanent Court, it is clear that the latter were indicating a change in approach in view of the intervening introduction of the statutory Police Detention Legal Assistance scheme in the Legal Services Act 2000."


Effect of the breach is irrelevant to whether there was a breach of the right to a fair hearing

An important point, only recently settled in New Zealand law, is that the right to a fair hearing is a procedural right, and does not depend on proof of loss, such as loss of an opportunity of a more favourable result (see, for example, Condon v R, noted here 26 August 2006). In Young, the Court noted that this was not a case of loss of a real opportunity of a more favourable result, as it was impossible to speculate about what would have been the result of a fairly conducted hearing (para 48, 49). Because that was so, the Court’s judgment was itself sufficient satisfaction for any damage that had been suffered.

Normally, of course, the consequence of a finding that a hearing was unfair will be the quashing of the result (usually, the conviction) of that hearing. In Young, there was no resulting conviction to quash, and all that the Court could have done was to make an award of damages for non-pecuniary loss, but that would have required proof of a loss. Although the result of the unfair hearing was 3 extra days in custody, the applicant could not show that the same result would have followed from a fair hearing.

Legal expenses and award of costs

The Court in Young significantly reduced the amount of costs that were sought to cover the successful appellant’s legal expenses. Aside from the absence of a fully itemized account, the reason was that most of the submissions had been prepared after the delivery of the Grand Chamber decision – Ezeh and Connors - that had settled the law.

The implication is that counsel must rely on the Court applying its earlier decisions, even when the court is a largely differently constituted bench considering a previous split of 11 to 6. Notwithstanding the risk of liability for negligence, which might result in a tendency to, albeit in good faith, over-prepare, and the potentially strong opposition from government-funded prosecuting counsel, it seems that less well funded counsel must have confidence in their case.
 

To speak, or not to speak?

For my observations on advising clients whether to talk to the police, Click here. 

Improperly obtained evidence

For my observations on the new provision in the Evidence Act 2006[NZ] concerning the discretion to exclude improperly obtained evidence, Click here.

Observations on hearsay

For my observations on the new hearsay provisions of the Evidence Act 2006[NZ], Click here. 

Deceit from a distance

Today our Supreme Court held that a person who, outside New Zealand, causes a copy of a document to be created in this country (here, by sending a fax), does an act in New Zealand so as to attract the application of New Zealand law: Walsh v R [2006] NZSC 111 (19 December 2006).

The defendant appealed against convictions for forgery. She had been found guilty on the basis that she had, in Amsterdam, created false documents and then, perhaps after copying them to disguise the method of their creation, she had faxed them to the victims, intending thereby to dishonestly obtain money.

There was a difficulty here with the forgery convictions, because of the legal definition of a forged document as, essentially, a document that told the kind of lie about itself that brought it within the then-applicable statutory definition of false document (see para 9 of the judgment of Elias CJ, McGrath and Anderson JJ, with which Blanchard and Tipping JJ concurred). The difficulty here was that the forgeries were completed (outside the jurisdiction of New Zealand courts) before the copies were made, and the copies purported to be made by the accused, which was true: para 16. This was the position for all except 6 documents; these 6 purported to be letters addressed specifically to particular victims. While this point did not need to be decided, Blanchard J indicated, para 33, that he would have held that there were forgeries, as they each purported to be sent on the authority of their apparent writer, and that was a lie.

No such difficulty existed concerning the offence of uttering, and the Court amended the convictions accordingly. Uttering was defined at the relevant time by s 266 of the Crimes Act 1961, and the accused had committed the offences by sending the faxes to New Zealand: para 19, 20. There was no prejudice to the appellant in these amendments, because in order to have convicted her for forgery the jury must have accepted proof of all the ingredients of uttering. The same statutory maximum penalty applied, and the sentences were confirmed.

As Tipping J pointed out in para 40, the law in New Zealand was “substantially recast” from 1 October 2003 by the present sections 255 – 265 of the Crimes Act 1961, and the appellant would now appropriately be convicted, if she had committed the offences on or after that date, under s 258, of reproducing documents with intent to deceive.

The current offence of forgery attracts the same difficulties as those which were considered in this case, and the prosecution must select a charge appropriate to the circumstances of each case. Walsh is interesting for its reference to the jurisdictional point, and for the reasons why the convictions could be amended.

I wasn’t going to do a blog entry on Clift, R (on the application of) v Secretary of State for the Home Department [2006] UKHL 54 (13 December 2006), but, because there is an interesting parallelism of concepts, I will mention it here. The essential distinction, operative in both cases, is between status and action. In Walsh, the determination of whether a document is a forgery requires analysis of the distinction between what the document is, and what it seeks to do. To be a forgery, the document must make a false assertion about what it is, its status. This must not be confused with what it does, its action, which will be to make a false assertion about some state of affairs and thus mislead its intended recipient. In Clift, the point was that discrimination concerns what a person is, his status, and not what he has done, his action. Thus, in that case, (broadly speaking), a prisoner subject to a different parole regime to others who had received lesser sentences was held not to be the victim of discrimination in contravention of article 14 of the ECHR because the difference in parole eligibility was due, not to his status (as a person), but to his conduct in committing the crime for which he was sentenced.

Extended secondary liability

To be guilty of serious crime you must intend to do the prohibited thing. Intention is the fundamental requirement for liability. Those two statements require some qualification. Recklessness is often sufficient. There is a difference between a person who actually does the act (the principal offender) and one of the two sorts of secondary participants. The first sort of secondary parties are those who aid, abet, counsel or procure the commission of the offence. These people are liable if, like the principal, they intend the prohibited acts (or are reckless as to whether or not they occur). But, the second sort of secondary party, the one we will be concerned with here, is the person who assists in the commission of one offence, knowing that the principal “could” commit another offence; the question is, what sort of state of mind is needed by the secondary party for liability for that other offence?

I have put the word “could” in quotation marks because there is some variation in the law about what attitude the secondary party must have towards the commission of that other offence. In New Zealand, s 66(2) of the Crimes Act 1961 puts it like this:

“Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.”

The critical phrase here is “known to be a probable consequence”. Although this sort of secondary party can be liable without actually intending that the other offence be committed, he must regard its commission as a “probable”, rather than a “possible” consequence. This puts the requirement as higher than recklessness, which is usually understood to mean taking a known risk.

There is, therefore, room for some dissatisfaction with this law, as the principal offender may, depending on the definition of the offence in question, only be liable for prohibited conduct that he intended, while the secondary participant is liable merely because he knew its occurrence was probable even if he didn’t want it to happen.

The law of homicide is usually the source of illustrations by commentators, but this is a bad example. To put it in simplified terms, murder can be committed by the principal offender even though he doesn’t intend to kill: recklessness is sufficient. There is not, therefore, the disparity between parties as there might be in relation to some other offences. Nevertheless, in Clayton v R [2006] HCA 58 (13 December 2006) the appellants, convicted as secondary parties to murder, asked the High Court of Australia to change the law. In Victoria, the state of mind required by this sort of secondary party is defined by common law as knowledge that the commission of the other offence (here, murder) was “possible”. This is a lower standard for liability than “probable”. Kirby J, dissenting, thought that the anomalies in the law would be avoided if the requirement was changed to “probable” (para 121), but the other members of the Court declined to change the common law, emphasising that there was no disparity between the forms of liability as the principal could be liable without intending to kill (para 16), and that the issue might really amount to a change in the law of homicide, a matter that should be left to the legislature (para 19).

At para 20 the majority refer to the jurisprudential basis for the different forms of liability:

“Further, no change could be undertaken to the law of extended common purpose without examining the whole of the law with respect to secondary liability for crime. The history of the distinction between joint enterprise liability and secondary liability as an aider, abettor, counsellor or procurer of an offence has recently been traced by Professor Simester ["The Mental Element in Complicity", (2006) 122 Law Quarterly Review 578 at 596-598]. As that author demonstrates [at 598-599], liability as an aider and abettor is grounded in the secondary party's contribution to another's crime. By contrast, in joint enterprise cases, the wrong lies in the mutual embarkation on a crime, and the participants are liable for what they foresee as the possible results of that venture. In some cases, the accused may be guilty both as an aider and abettor, and as participant in a joint criminal enterprise. That factual intersection of the two different sets of principles does not deny their separate utility.”

This was the extent of the majority’s reference to the “separate utility” of the different forms of liability. Kirby J, at para 107, was not convinced by Simester’s rationale:

“The justification presented by Simester …[Simester and Sullivan, Criminal Law Theory and Doctrine, 2nd ed (2003) at 226; see also Simester, "The Mental Element in Complicity", (2006) 122 Law Quarterly Review 578 at 592-601] is ultimately unpersuasive. The law may indeed dislike group anti-social activities, particularly where they result in death. But a rational and just legal system will dislike such activities equally, whether the conduct charged is prosecuted as an offence of acting in concert or of aiding and abetting others in carrying out the group activity. The law will not withdraw from one means only of establishing the offence (by reliance upon extended common purpose liability) the normal requirement of the modern criminal law that the prosecution prove a requisite intention on the part of the secondary offender.”

The New Zealand Court of Appeal has taken this logical approach of treating principal and secondary parties on the same footing: R v Tuhoro [1998] 3 NZLR 568; (1998) 15 CRNZ 568 (CA), 573:

“Having regard to the increasing number of persons prepared to combine for major criminal activity, … it is neither contrary to public policy nor unjust to hold them to account on the same basis as the actual perpetrator of any crimes within the scope of their criminal plan.” 

Reliability and hearsay

Yesterday, the Supreme Court of Canada made some observations on hearsay that are relevant to issues that will arise in New Zealand under our new Evidence Act 2006: R v Khelawon [2006] SCC 57 (14 December 2006).

The crucial provision in the Evidence Act 2006 that I will focus on here is s 8:

“8 General exclusion

(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will---

(a) have an unfairly prejudicial effect on the outcome of the proceeding; or

(b) needlessly prolong the proceeding.

(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.”


This “right of the defendant to offer an effective defence” echoes s 25(e) of the New Zealand Bill of Rights Act 1990: “The right to be present at the trial and to present a defence”, and the word “effective” invokes other aspects of s 25. The importance of the Bill of Rights is recognised in the Evidence Act 2006, s 6, where the purposes of the Act are stated to include “providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990”.

The most fundamental of the rights in s 25 of the Bill of Rights is the accused’s right to a fair hearing. This right has been recognised by the New Zealand Supreme Court as fundamental and essential: Condon v R (blogged here, 24 August 2006). In Khelawon the Court recognised, at para 47, the link between the right to make a full answer in defence and the right to a fair trial, saying that this introduced a “constitutional dimension.”

Hearsay evidence is presumptively inadmissible, but it may be admitted. An essential for admissibility is that the circumstances relating to the statement provide reasonable assurance that it is reliable: Evidence Act 2006, s 18(1).

The Supreme Court of Canada, in Khelawon, has analysed the reliability requirement for admission of hearsay statements. Essentially, it held that reliability may arise in two ways, but these are not mutually exclusive. The first is where reliability can be assessed by the trier of fact (usually, the jury). Here, there will be means by which the truth and accuracy of the statement can be tested, other than by cross-examination. In such cases, the judge does not need to inquire into the truth or accuracy of the statement, in determining its admissibility, as those are matters for the jury. We may question, with respect, whether it is appropriate to call this first a test for “reliability”, rather than a test for “safety” of admitting the evidence. The point is that it is safe to admit the evidence because in the circumstances of the case its reliability can properly be assessed by the jury.

The second sort of reliability in the Supreme Court of Canada’s analysis is where the trustworthiness of the statement is put forward as the reason for admitting it: here, the judge must inquire into the factors that tend to show whether the statement is true or not.

That, of course, doesn’t take the reliability issue very far, and it is unlikely to be a subject for analytical expansion as opposed to illustration by example. Of more interest here is the Court’s model of trial fairness. At para 48 the Court noted that trial fairness embraces more than the rights of the accused: it includes broader societal concerns, one of which is that the trial process should arrive at the truth. These broad interests were, said the Court, reflected in the twin principles behind the admission of hearsay evidence: the necessity principle (usually meaning that the maker of the statement is not available to give evidence), which reflects the truth-seeking interest, and the reliability principle, which reflects the need for integrity in the trial process. Other fair trial interests were reflected in the general discretion of the judge to exclude evidence where its prejudicial effect exceeded its probative value.

An implication of this analysis is that the last-mentioned discretion must be exercised in a way that recognises the absolute and essential nature of the accused’s right to a fair trial. One may question whether it is appropriate to exclude this right from the reliability principle, if indeed that is what the Canadian Court intended. It seems directly applicable to the safety aspect of reliability (how could it be safe to admit a statement if the accused’s inability to cross-examine its maker could give rise to a real risk of bias?). It may be that the New Zealand legislation has better placed the Bill of Rights concerns as one of the purposes of the Evidence Act 2006, second only to the provision of logical rules. In that context it has a bearing on all the rules, and the accused’s absolute and essential right to a fair trial remains an overarching requirement.

The balance of probabilities

Sometimes, cases that are not quite interesting enough to warrant a blog entry here, nevertheless contain dicta that are worth noting.

Such a case is Sharma v DPP and others (Trinidad and Tobago) [2006] UKPC 57 (30 November 2006). The relatively uninteresting bit of the case is its recognition that a prosecutorial decision to file criminal charges can be subject to judicial review. Here, however, there was insufficient evidence of official misconduct to warrant leave being given to institute review proceedings. While there are some examples of successful reviews of decisions not to prosecute, there is, according to the Privy Council, no English case where a decision to prosecute has been reviewed.

One can understand that absence of example, because the more appropriate recourse would be an application for a stay of proceedings on the grounds that to continue with the prosecution would be an abuse of process.

However, the interesting point I wish to draw attention to in this case concerns what is usually called the civil standard of proof: proof on the balance of probabilities. At para 14 of their joint judgment, Lords Bingham and Walker quoted with approval an English Court of Appeal case, R(N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, [2006] QB 468 at para 62:

“… the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.”

The standard of proof on the balance of probabilities is frequently used in criminal law in relation to issues such as proof of the defence of insanity, proof of the admissibility of evidence, and proof of an issue by the defence where a statute specifies that that is the standard. It is also applied, exceptionally, to some findings of fact at sentencing, for example proof that specified property was the proceeds of offending.

In some cases the courts have said that the civil standard has the advantage of flexibility: where the issue is a serious one, the standard increases, tending to become akin to proof beyond reasonable doubt for really serious issues. That, it may now be seen, is the wrong way to look at what is going on; the standard is not increased, rather, more cogent evidence is required to satisfy proof on the balance of probabilities, as the issue becomes more serious.

What, one may wonder, is the difference? Well, imagine a case where, at sentencing, the judge has to decide whether certain property represents the proceeds of criminal offending. If it does, a fine may be imposed to represent the value of those proceeds. An illustration is s 39(1)(b) of the Misuse of Drugs Amendment Act 1978[NZ]. In this context, the “fine” is a means of depriving the offender of the benefit of his offending, rather than a punishment, so the civil standard of proof here is appropriate. Nevertheless, the issue is a serious one, especially where the property is valuable and loss of its value may have an adverse effect on innocent people. In the absence of an explanation for how he acquired the property lawfully, the court will be entitled to infer that it was indeed obtained with the proceeds of offending. That may be the ordinary and natural inference, although evidence for it may be slight. It may be a matter of common sense, rather than actual proof. On the other hand, the offender may provide evidence that, for example, at the relevant time he had recently inherited money which he used to pay for the property in question. Unlikely though that explanation may be, he may nevertheless be able to provide cogent evidence in support of his assertion.

Here, if (as is the case) the standard does not increase but the requirement for cogency does, the offender may well be able to establish, on the balance of probabilities, that he did buy the property with inherited money. And, similarly, the prosecution, having a common sense inference but little evidence to back it up, would fail to establish its case on the balance of probabilities. If, however, the seriousness of the issue meant that the standard of proof increased, then, notwithstanding the cogency of his evidence that he inherited the money, the court might still find that the more common sense inference prevailed: while he could establish lawful purchase to a likelihood of, say 51%, he could not reach the higher standard that the circumstances required.

It will be important to get judges to see the difference in these approaches to the meaning of the balance of probabilities. The difference is rather subtle. If the cogency of the required proof increases to a likelihood of, say, 60% in favour, why isn't that an increase in the standard of proof? "Balance" of probabilities suggests a more even contest. Nevertheless, the focus appears to be on the cogency of the evidence for each competing proposition, not on some imaginary shifting standard of proof.

[Update: The European Court of Human Rights rejects the English approach and holds that the strength of the evidence needed to meet the standard of proof does not change with the seriousness of the issue: Saadi v Italy [2008] ECtHR 179 at 140.]

Attempting to conspire

A good example of a policy decision about the scope of criminal law comes from the Supreme Court of Canada in R v Dery [2006] SCC 53 (23 November 2006). At issue was whether there should be an offence of attempting to conspire to commit an offence. There was no legislative provision determining this question, so it concerned the scope of the common law.

The Court held unanimously that there is no offence of attempting to conspire: acts preceding conspiracy are not sufficiently proximate to a substantive offence to warrant criminal sanction.

This decision highlights the meaning of “agreement” in the context of conspiracy. A criminal conspiracy is an agreement to commit an offence. Imagine two people, A and B, who discuss committing an offence; A is very keen that they should do so, but B wants more time to decide and tells A that he will send him a text message about this later. B leaves A and later decides that, yes, he will agree to commit the proposed offence with B, so he sends him a text message to that effect. However, the message is never received by A.

Here, B has tried to agree with A to commit the offence. He has done what A expects him to do to agree. He believes they have an agreement. Should B be guilty of attempting to conspire with A? His position is different from that of A, who, not having received any communication from B, does not believe they have reached agreement, although he hopes they have. A would not be guilty of conspiracy with B.

While it might be acceptable, in circumstances like this, to hold B guilty while A escapes liability, the legal concept of agreement as a combination of minds prevents this. The law looks at potential harm as the justification for imposing criminal liability, and for conspiracy it is the harm that arises from the combination of minds, directed at the commission of an offence, that warrants criminal sanction. While, in the hypothetical discussed here, B’s state of mind is that of a conspirator, the danger he poses is lessened because A is unaware of B’s agreement. It is often said that a person is not to be punished for his thoughts alone, and in the absence of a combination of minds B’s individual liability must depend on whether he does any other act which is sufficiently proximate to the commission of a substantive offence to make him liable for the attempt to commit that offence.

We are, of course, focusing on liability for an attempt to conspire. It should not be thought that A will escape all liability, for consideration will have to be given to incitement. It may be that A is liable for inciting B to commit the crime which was the objective he discussed with B. Further questions arise here, concerning what “inciting” involves. If it is no more than trying to arouse another person’s interest in committing an offence, then A would be liable whatever B decided; but, if inciting requires the actual arousal of that interest in the mind of the other person, then A is only liable if B (as he did in the above hypothetical) becomes interested in the commission of the offence. This latter approach would be consistent with the harm-based justification for imposition of criminal liability. However, the common law interpretation is different: inciting does not require the creation of an interest in the commission of the offence, mere encouragement being sufficient. Adams on Criminal Law puts it this way, at CA66.17(2):

““Inciting” means to urge or spur on by encouragement, persuasion, or coercion. See Burnard v Police [1996] 1 NZLR 566; R v Tamatea (2003) 20 CRNZ 363, and the following decisions at common law on the meaning of the term in the inchoate offence of incitement: Invicta Plastics Ltd v Clare [1976] RTR 251; R v Hendrickson [1977] Crim LR 356; R v Fitzmaurice [1983] QB 1083; R v James (1985) 82 Cr App R 226; Race Relations Board v Applin [1973] QB 815.”

A leading New Zealand case on incitement, consistent with this statement of the law, is R v Schriek [1997] 2 NZLR 139; (1996) 14 CRNZ 449; 3 HRNZ 583 (CA). The position may therefore be summarised as follows: criminal liability requires that the accused caused harm, and as far as conspiracy is concerned the minimum harm needed for liability is, consistent with the decision of the Supreme Court of Canada in R v Dery, the existence of an agreement to commit an offence. Such an agreement does not exist without communication between the two parties to it (or, where there are more than two parties, between at least two of them). But, where incitement is concerned, the necessary degree of harm has been held to arise from mere encouragement, whether or not an interest in offending is aroused. This inconsistency in policy will require attention.