Propensity evidence: admissibility and Bayes Theorem

The High Court of Australia has given detailed consideration to how evidence of an accused’s propensity should be handled, in three jointly heard appeals: HML v The Queen; SB v The Queen and OAE v The Queen [2008] HCA 16 (24 April 2008).

The seven Judges delivered seven judgments. Unfortunately, and a trace of regret about this is evident in the remarks of Kirby J at para 82, the issue of real general interest was not unanimously decided because of the different approaches taken. This issue is, what role, if any, the standard of proof beyond reasonable doubt has in connection with proof of the alleged propensity.

The admissibility rule in Australia
I say that was the issue of general interest, because much of the judgment is concerned with the nearly-extinct rule in Pfennig v The Queen [1995] HCA 7, (1995) 182 CLR 461. This is, in essence, a rule about the probative value that propensity evidence must have in the context of a particular case before it can be ruled admissible. Only if the judge finds that, assuming the propensity evidence is accepted as true, and assuming the other prosecution evidence in the case is also accepted, the effect of the propensity evidence would be to exclude any reasonable doubt that would otherwise exist about the accused’s guilt, can the evidence be said to have sufficient probative value to be admitted. This affects the more generally applicable requirement that evidence must be excluded if its probative value is outweighed by its illegitimately prejudicial effect, by replacing the discretion with a rule (Gleeson CJ at 15). Hayne J discussed the application of this rule at 112 – 118. Gummow J and Kirby J agreed (41, 51).

Standard of proof of propensity evidence
It is often claimed that the only thing that needs to be proved beyond reasonable doubt in a criminal trial is the guilt of the accused. Each element of the offence must be proved beyond reasonable doubt. Policy has supported an evidential rule that the voluntariness of a confession must be proved beyond reasonable doubt. It is by no means clear that evidence of the accused’s propensity has to be proved beyond reasonable doubt.

Propensity evidence is, after all, a form of circumstantial evidence, and circumstantial evidence does not carry a standard of proof. But the view favoured by Kirby J is that propensity must be proved beyond reasonable doubt. He summarised the approaches of the other members:

“82 … Heydon J considers that it is unnecessary to decide whether the criminal standard of proof has a wider application in cases such as the present, because whatever the case, the judges' summing up in each of the three appeals included a direction incorporating the criminal standard[Reasons of Heydon J at [339], [376], [395]-[396]]. This is so, notwithstanding that the ostensible purpose of these appeals was to settle that issue with an authoritative statement by this Court. Crennan J endorses a principle similar to that stated by Gleeson CJ[Reasons of Crennan J at [477]], although she ultimately relies on the conclusion of Heydon J that directions incorporating the criminal standard were in fact given in the trial of OAE[Reasons of Crennan J at [483]]. It is apparent from the analysis of Kiefel J[See reasons of Kiefel J at [512]-[513]] that her Honour considers that, because the relevant evidence was relied upon for a purpose other than "disclosing [OAE's] sexual interest" in the complainant[Reasons of Kiefel J at [517]], a direction as to the criminal standard of proof was not required.”

Gleeson CJ held at 31 that the standard of proof beyond reasonable doubt applies only to indispensable facts, and Crennan J at 477 agreed. Hayne J held at 196 that where propensity evidence is admitted as an essential step in the reasoning (and Pfennig indicates that, since it is the admissible propensity evidence that removes any reasonable doubt about the accused’s guilt, it is essential) it must be proved beyond reasonable doubt.

Kirby J held that propensity evidence must be proved beyond reasonable doubt:

“[83] I support the conclusion of Hayne J. It is necessary and desirable for this Court to resolve the issue concerning directions to be given on the standard of proof applicable to evidence of "uncharged acts" for the guidance of trial judges and intermediate courts still observing the common law in this respect. I would hold that wherever such evidence has been admitted under the Pfennig test and is propounded as relevant to a step in reasoning towards the accused's guilt of an offence charged, the jury must be told that they are to be satisfied beyond reasonable doubt that such evidence has been proved before they reason that the accused is guilty on the basis of it[Reasons of Hayne J at [132], [244]]. This is the essential quid pro quo for allowing such evidence to be placed before the jury at all. It is mandated by considerations of law but also of basic fairness, considered in the context of an accusatorial trial that still observes rules of particularity as to the offences charged.”

The Australian approach to propensity evidence was devised to avoid a perceived risk that judicial directions on the proper use of such evidence will not necessarily be effective. Hayne J put it this way at 116:

“… Judicial directions about use of such evidence have not hitherto been seen, and should not now be seen, as solving that problem. The possible uses to which evidence of other acts (which does not meet the Pfennig test) may be put are inevitably so intertwined that they cannot be sufficiently disentangled to give useful instructions to the jury. And even if the various uses of such evidence could be disentangled, that would leave unaddressed and unanswered the further difficulty that the jury may attach more significance to the evidence of other acts than they should. That is why the solution that has been adopted for so long by the common law, reflected in this Court's decision in Pfennig, is to limit the circumstances in which evidence of other discreditable acts of an accused will be received in evidence.”

He summarised the Court’s position on the standard of proof of propensity evidence that demonstrated that the accused had a sexual interest in the respective complainant in these appeals:

“[247] …It is important to recognise, however, that at least a majority of the Court[Gummow J at [41], Kirby J at [63], Kiefel J at [506] and these reasons at [132]] is of the opinion that "[i]n the ordinary course a jury would be instructed by the trial judge that they must only find that the accused has a sexual interest in the complainant if it is proved beyond reasonable doubt"….”

Logical reasoning
Since the choice of the standard beyond reasonable doubt for propensity evidence is a policy choice, it should not be criticised for being illogical. But it is illogical.

It imposes on the jury an “if and only if, then …” form of reasoning: if and only if the propensity evidence is true, then the accused is guilty on the present charge. It is more appropriate to apply a logic of conditional probabilities to this situation (and, indeed, to most decisions a jury has to make). In the absence of concessions or admissions, certainties don’t arise in trials. Even fingerprint evidence is given in the form of opinion, and testimony involving any form of measurement inevitably involves a range of error. The truth of testimony is appropriately thought of as a probability. Evidence of propensity will be assessed by a juror as being more or less likely to be true, that is, as having a probability of being true.

The majority approach in HML v The Queen, requiring this probability to equate with beyond reasonable doubt, is too restrictive. Conditional probability reasoning, as expressed in Bayes’ Theorem, involves considering the likelihood of getting the assessed probability of the propensity, given the accused is guilty on the present charge, compared to the likelihood of getting that assessed probability of the propensity, given that the accused is innocent on the present charge.

I have discussed the application of Bayes’ Theorem to propensity evidence in a draft paper (a perpetual draft so that it can be updated), available on this site here.

This question of whether some or any facts need to be proved beyond reasonable doubt before a verdict of guilty can be returned has given rise to controversy: see for example Chamberlain v The Queen (No 2) (1984) 153 CLR 521 (HCA), Shepherd v The Queen (1990) 170 CLR 573 (HCA), Thomas v R [1972] NZLR 34 (CA), R v Puttick (1985) 1 CRNZ 644 (CA), R v Holtz [2003] 1 NZLR 667; (2002) 20 CRNZ 14 (CA), R v Morin (1988) 44 CCC (3d) 193, and R v MacKenzie (1993) 78 CCC (3d) 193 (SCC).

A point that has led to confusion is the need for a juror to be sure (beyond reasonable doubt) of what fact is accepted; this is not to say that the fact itself establishes anything beyond reasonable doubt. For example, a witness may say that on examination of a bullet there is an 80% chance that it was fired from a specified gun. To require the juror to be sure, beyond reasonable doubt, that the result “80%” is correct, is not the same as requiring the juror to be sure, beyond reasonable doubt, that the bullet came from that gun. Once the testimony has been accepted, the juror can assess the likelihood of the result “80%” being obtained, given that the accused is guilty, compared with the likelihood of getting the “80%” result, given that the accused is innocent.

It is better, when trying to grapple with the role of proof beyond reasonable doubt, to think of the reasoning as following the logic of conditional probabilities, rather than to use the traditional metaphors of ropes and chains of reasoning. This is because they are too vague. In HML v The Queen the rope metaphor was not used by any of the Judges, but chains of reasoning were spoken of.

Update: On 26 November 2018 the New Zealand Supreme Court refused leave to appeal on a challenge to the absence of a requirement for proof of propensity to the beyond reasonable doubt standard, holding that, despite the different approaches in the United Kingdom and Australia, the law in New Zealand had taken a different course and was now settled: Grooby v R [2018] NZSC 114.

Criminal and civil self-defence

Some comments on the difference between self-defence in criminal and civil law are worth noting here. They occur in a civil action in battery: Ashley v Chief Constable of Sussex Police [2008] UKHL 25 (23 April 2008).

The relevant issue was whether in civil law it is necessary that a belief in the need to use any force in self-defence has to be a reasonable belief. Broadly, in criminal law reasonableness on this point is not necessary, it being sufficient that the belief was honestly held. In criminal law (again, generally) reasonableness does have a role in self-defence, by limiting the amount of force permitted to reasonable force. The move to subjectivity on the element of belief came, as Lord Neuberger notes at para 88, as a result of the work of the Criminal Law Revision Committee, and, while having some persuasive value outside criminal law, is not necessarily applicable.

Lord Bingham observer, para 3, that the ends of justice differ in criminal trials and civil actions. This was elaborated by Lord Scott at 17 – 18:

“… One of the main functions of the criminal law is to identify, and provide punitive sanctions for, behaviour that is categorised as criminal because it is damaging to the good order of society. It is fundamental to criminal law and procedure that everyone charged with criminal behaviour should be presumed innocent until proven guilty and that, as a general rule, no one should be punished for a crime that he or she did not intend to commit or be punished for the consequences of an honest mistake. There are of course exceptions to these principles but they explain, in my opinion, why a person who honestly believes that he is in danger of an imminent deadly attack and responds violently in order to protect himself from that attack should be able to plead self-defence as an answer to a criminal charge of assault, or indeed murder, whether or not he had been mistaken in his belief and whether or not his mistake had been, objectively speaking, a reasonable one for him to have made. As has often been observed, however, the greater the unreasonableness of the belief the more unlikely it may be that the belief was honestly held.

“[18] The function of the civil law of tort is different. Its main function is to identify and protect the rights that every person is entitled to assert against, and require to be respected by, others. The rights of one person, however, often run counter to the rights of others and the civil law, in particular the law of tort, must then strike a balance between the conflicting rights. Thus, for instance, the right of freedom of expression may conflict with the right of others not to be defamed. The rules and principles of the tort of defamation must strike the balance. The right not to be physically harmed by the actions of another may conflict with the rights of other people to engage in activities involving the possibility of accidentally causing harm. The balance between these conflicting rights must be struck by the rules and principles of the tort of negligence. As to assault and battery and self-defence, every person has the right in principle not to be subjected to physical harm by the intentional actions of another person. But every person has the right also to protect himself by using reasonable force to repel an attack or to prevent an imminent attack. The rules and principles defining what does constitute legitimate self-defence must strike the balance between these conflicting rights. The balance struck is serving a quite different purpose from that served by the criminal law when answering the question whether the infliction of physical injury on another in consequence of a mistaken belief by the assailant of a need for self-defence should be categorised as a criminal offence and attract penal sanctions. To hold, in a civil case, that a mistaken and unreasonably held belief by A that he was about to be attacked by B justified a pre-emptive attack in believed self-defence by A on B would, in my opinion, constitute a wholly unacceptable striking of the balance. It is one thing to say that if A's mistaken belief was honestly held he should not be punished by the criminal law. It would be quite another to say that A's unreasonably held mistaken belief would be sufficient to justify the law in setting aside B's right not to be subjected to physical violence by A. I would have no hesitation whatever in holding that for civil law purposes an excuse of self-defence based on non existent facts that are honestly but unreasonably believed to exist must fail….”

There was no disagreement about this. Lord Carswell added, at 76:

“…The criminal law has moved in recent years in the direction of emphasising individual responsibility. In pursuance of this trend it has been held in different areas of the criminal law that it is the subjective personal knowledge or intention of the accused person which has to be established: see, e.g., R v Morgan [1976] AC 182, R v Kimber [1983] 1 WLR 1118. So in the case of self-defence it has been held that that if a defendant is labouring under an honest mistake, even if it is regarded as unreasonable, the defence is open to him: R v Williams (Gladstone) [1987] 3 All ER 411. The function of the civil law is quite distinct. It is to provide a framework for compensation for wrongs which holds the balance fairly between the conflicting rights and interests of different people. I agree that that aim is best met by holding that for the defence of self-defence to succeed in civil law the defendant must establish that he honestly believed in the existence of facts which might afford him that defence and that that belief was based upon reasonable grounds. …”

Another aspect of this case is the decision whether to stay the civil action. The details need not be considered here, but it was a policy decision, and as such it is notable that, although there was some disagreement over this issue, both sides found support in dicta of Cooke P (as he then was, subsequently Lord Cooke) in Re Chase [1989] 1 NZLR 325 (CA).

Strength, rights, remedies

Sometimes, rights may be strong, but remedies weak.

Virginia v Moore [2008] USSC 06-1082 (23 April 2008) illustrates strong State rights, weak State remedies, and weak Constitutional rights.

In the circumstances that were held to exist, State law required a police officer to issue a summons, and not to arrest, Mr “Chubs” Moore, who had been apprehended driving while his licence was suspended. Instead, he was arrested for that offence. After a little delay, over which he did not complain in this appeal, he was searched and 16 g crack cocaine was found in his possession. He was charged with possession of the drug with intent to distribute it, and eventually he was sentenced to 5 years’ imprisonment. The Virginia Supreme Court held that since the arrest was unlawful, the search violated the Fourth Amendment, and the evidence should have been ruled inadmissible.

To avoid the unpalatable conclusion that the evidence had to be excluded, the US Supreme Court applied a line of its cases and held that, notwithstanding the illegality of the arrest in Virginia State law, the arrest was constitutionally reasonable.

The reasoning here is that, while the State may give its citizens protections greater than those required by the Constitution, that does not affect the interpretation of the Fourth Amendment. Scalia J (Roberts CJ, Stevens, Kennedy, Souter, Thomas, Breyer and Alito JJ joining – Ginsburg J concurred separately) put it this way:

“In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable….e.g., Devenpeck v. Alford, 543 U. S. 146, 152 (2004); Gerstein v. Pugh, 420 U. S. 103, 111 (1975); Brinegar v. United States, 338 U. S. 160, 164, 170, 175–176 (1949).

“ Our decisions counsel against changing this calculus when a State chooses to protect privacy beyond the level that the Fourth Amendment requires. We have treated additional protections exclusively as matters of state law. In Cooper v. California, 386 U. S. 58 (1967), we reversed a state court that had held the search of a seized vehicle to be in violation of the Fourth Amendment because state law did not explicitly authorize the search. We concluded that whether state law authorized the search was irrelevant. States, we said, remained free “to impose higher standards on searches and seizures than required by the Federal Constitution,” id., at 62, but regardless of state rules, police could search a lawfully seized vehicle as a matter of federal constitutional law.”

The discussion has thus shifted from the lawfulness of the arrest (unlawful in State law, but lawful in Federal law) to the reasonableness of the search. In Virginia State law, improperly obtained evidence is, according to Scalia J, not usually excluded, which is why Mr Moore was convicted. He was arguing that the generous protections given to individuals by Virginia’s law should be accompanied, not by a balancing exercise, but by a “bright line” rule excluding the evidence.

Scalia J held that the search was not unconstitutional, and added:

“If we concluded otherwise, we would often frustrate rather than further state policy. Virginia chooses to protect individual privacy and dignity more than the Fourth Amendment requires, but it also chooses not to attach to violations of its arrest rules the potent remedies that federal courts have applied to Fourth Amendment violations. Virginia does not, for example, ordinarily exclude from criminal trials evidence obtained in violation of its statutes. … Moore would allow Virginia to accord enhanced protection against arrest only on pain of accompanying that protection with federal remedies for Fourth Amendment violations, which often include the exclusionary rule. States unwilling to lose control over the remedy would have to abandon restrictions on arrest altogether. This is an odd consequence of a provision designed to protect against searches and seizures.”

So, Mr Moore’s argument for strong remedies for strong rights was defeated by the Court’s preference for strong remedies for weak rights.

Spot the difference

The actual and potential harm caused by an offence is a significant consideration in sentencing. It would be natural to expect that drug offending carries various levels of harm, and that the nature of the drug and its quantity are relevant to assessing the harm caused by a particular offence. However, in the absence of specific legislative guidance, it may be difficult to convince a court that an offence in respect of one drug is less serious than the same offence in respect of another drug.

In Adams v R [2008] HCA 15 (23 April 2008) this argument was presented but the Court held that there was an insufficient foundation, legal or factual, for it to be considered.

Gleeson CJ, Hayne, Crennan and Kiefel JJ jointly, after a slightly inaccurate summary in para 3 (inaccurate in that the contrast between the two legislative schemes mentioned there is not as great as suggested because harm-based arguments are available under each, and the classification of MDMA in New Zealand is not as the Court was advised), observed that there are difficulties in contending that offending involving one drug in a particular category poses more or less harm than the same offending involving another drug in that category:

“[9] The appellant's entire argument is based on the factual assertion that ‘MDMA ... is less harmful to users and to society than heroin.’ The quantities in contemplation for the purposes of that comparison are unspecified. How much MDMA is being compared with how much heroin? Other aspects of the meaning of the proposition are equally unclear. Harm to users and society is a protean concept. Counsel had understandable difficulty explaining exactly what the proposition means, let alone demonstrating, by evidence available to the sentencing judge or matters of which a court could take judicial notice, that it was true. What kinds of user, and what kinds of harm to society, are under consideration? The social evils of trading in illicit drugs extend far beyond the physical consequences to individual consumers. As the Victorian Court of Appeal pointed out in R v Pidoto and O'Dea [2006] VSCA 185; (2006) 14 VR 269 at 282 [59], ‘questions arise as to whether the perniciousness of a substance is to be assessed by reference to the potential consequences of its ingestion for the user, or its effect upon the user's behaviour and social interactions, or the overall social and economic costs to the community.’ Furthermore, in relation to some of these matters, scientific knowledge changes, and opinions differ, over time. Generalisations which seek to differentiate between the evils of the illegal trade in heroin and MDMA are to be approached with caution, and in the present case are not sustained by evidence, or material of which judicial notice can be taken.”

In New Zealand there has been some recognition of differences between drugs of the same class. In Albon v R 26/6/96, CA544/95 a scientific report was used to compare the potency of MDA with other class A controlled drugs, and in R v O’Donnell 1/8/96, CA101/96, a distinction was recognised between drugs of class A, according to whether they were addictive or non-addictive. But in R v Stanaway [1997] 3 NZLR 129; (1997) 15 CRNZ 32 (CA) it was held that the criminality must be assessed in the circumstances of each particular case and that potential for addiction may not be the predominant measure of perniciousness in the light of physical and psychological effects and other social considerations. In R v Arthur [2005] 3 NZLR 739; (2005) 21 CRNZ 453 (CA), the Court recognised, at para 13, that the distinction between the hallucinogenic and the non-hallucinogenic Class A drugs may be relevant, and for the purposes of the case recognised that methamphetamine was non-hallucinogenic.

The point made by the High Court of Australia in Adams v R is that submissions of this nature must be supported by evidence, before the court will even begin to grapple with how it should make distinctions between similar offending in respect of different drugs.

And then there were ten ...

Again the New Zealand Supreme Court has worked its way around the statutory prohibition on reviewing a judge’s exercise of discretion to continue a trial with only 10 jurors: Wong v R [2008] NZSC 29 (18 April 2008). The earlier occasion on which the Court did this was Rajamani v R (blogged here 24 August 2007).

The statutory prohibition on appellate review of the exercise of this discretion is in s 374(8) of the Crimes Act 1961, and the discretion to continue a trial with 10 jurors is in s 374(4A):

“(4A) The Court must not proceed with fewer than 11 jurors except in the following cases:
(a) If the prosecutor and the accused consent:
(b) If the Court considers that, because of exceptional circumstances relating to the trial (including, without limitation, the length or expected length of the trial), and having regard to the interests of justice, the Court should proceed with fewer than 11 jurors; and in that case—
(i) The Court may proceed with 10 jurors whether or not the prosecutor and the accused consent:
(ii) The Court may proceed with fewer than 10 jurors only if the prosecutor and the accused consent.
…

“(8) No Court may review the exercise of any discretion under this section.”

Repeating the approach in Rajamani, namely distinguishing between the “assessment” of whether the facts amounted to exceptional circumstances, a matter that could be reviewed on appeal, from the judge’s “consideration” that the trial should continue with 10 jurors, a discretion that could not be reviewed on appeal because of subsection (4A)(8), the Court held that exceptional circumstances did not exist here.

This was a 4 week trial, a length not out of the ordinary, although the retrial would be shorter because certain defence applications had been resolved, interpreters were needed, there were 41 witnesses (30 giving oral evidence), there were no complainants to consider (this being a drug trial), there was no real likelihood of witnesses being unavailable, and it would not be particularly difficult for the system to accommodate a retrial.

No one will say so, but this is an example of the Court rendering ineffective an unjust legislative provision. The Court has no power to declare a statute invalid, or to refuse to apply a statute, and there is not even a statutory power to declare that a statute is inconsistent with the Bill of Rights, although such a power is asserted (Hansen v R illustrates this, blogged here 20 February 2007). Section 374(8) could plainly be unjust, as a decision to continue a trial with 10 jurors without the consent of the defence would, if wrong, be a substantial miscarriage of justice; it is essential that a wrongful continuation of such a trial be able to be corrected on appeal. Therefore the Court interprets the wide terms of subsection (8) narrowly, by limiting “any discretion” to the decision that is made once exceptional circumstances exist.

This approach to the phrase “exceptional circumstances relating to the trial” in subsection (4A)(b), treating it as an assessment of facts, not as a discretion, is also applicable to the other phrase in (b), “the interests of justice”. If the judge incorrectly assesses (or, in the terms of the subsection, has regard to) the interests of justice, that too should be able to be corrected on appeal. Since the position that the court “considers” to arise from its assessments, in (4A), will be consistent with those assessments, there is really nothing in (4A) that cannot be reviewed on appeal.

It could be said that there is a residual discretion in the appellate court to intervene wherever necessary to prevent a substantial miscarriage of justice. This is how it was put in R v Hookway [2007] NZCA 567 at para 136. But this jurisdictional approach is less powerful, in this context, than the interpretative one, because it is at the mercy of what the statute leaves as “residual”. That itself is a matter of interpretation.

Straddling the point

By the slimmest of margins the Supreme Court of Canada has just avoided making an awful mistake.

Evidence can be admissible without it having to support only one side of a case. This elementary observation is plainly true. Many items of prosecution evidence may be consistent with both the guilt and the innocence of the accused, and only when the whole of its evidence is adduced may the prosecutor be able to say that this proves guilt beyond reasonable doubt.

It is often possible to express the probative value of an item of evidence as a probability, or a likelihood, of the proposition it is advanced to support. This can also be termed the weight of the evidence.

In Gibson v R [2008] SCC 16 (17 April 2008) the accused was charged with driving with excess alcohol in his system, and the issue was whether evidence that his real alcohol level could have been somewhere in a range extending from below, to above, the statutory limit, was admissible. The statutory scheme provided a presumption that the level was as indicated in a test result, but this was rebuttable by evidence that tended to show that the driver’s level was below the limit.

The sort of evidence the defence wanted to rely on was called “straddle evidence”, because it showed a range of possible levels that straddled the limit.

It should have been obvious that this evidence was no different from any other evidence that has a greater or lesser tendency to support the defence in its aim of raising a reasonable doubt. Plainly, where the evidence only has a slight tendency to support an inference of innocence, and is more a basis for an inference of guilt, it will weigh in favour of guilt. In such a case, it is likely to be insufficiently relevant to a defence proposition to be admissible as defence evidence (while being admissible – if the prosecution had obtained it, which of course here they hadn’t – for the prosecution).

In Gibson the defence expert indicated a range between 40 and 105 (the limit is 80). The majority held that this evidence was admissible: McLachlin CJ, LeBel and Fish JJ jointly, and Binnie and Deschamps JJ jointly. However, although admissible, these Judges differed on whether it was insufficient to raise a reasonable doubt. Binnie and Deschamps JJ held that it was sufficient to do so as the “prevailing direction” of the range was under the limit. But the other three Judges who agreed on the admissibility point held that the range of values and the extent to which the range exceeded the limit indicated that the evidence was insufficient to raise a reasonable doubt.

The awful mistake was made by the minority, Bastarache, Abella, Charron and Rothstein JJ (jointly, delivered by Charron J). They held that instead of being evidence in support of a reasonable doubt, straddle evidence was an attack on the presumption itself, and was therefore inadmissible. On this view, straddle evidence only tended to show that the accused fell into the range of people targeted by the legislation (para 33), and that it did not tend to show that the driver in question was not in this range. In order to raise a reasonable doubt, the driver could only adduce evidence of his actual alcohol consumption.

It is difficult to see why evidence that supports an inference of innocence (to the extend sufficient to raise a reasonable doubt) should be seen as an attack on the rebuttable presumption itself. The reasons are given in para 32 (and see also 19 – 20), and essentially come down to saying that Parliament must have taken into account the possible range of actual alcohol levels in drivers’ systems when it established the limit and the rebuttable presumption, and so the presumption could only be rebutted by evidence other than that based on metabolic rates of alcohol elimination in the population at large.

That, however, is to overlook the point that the evidence concerning the population at large must relate to the facts of the case: to the driver and the amount of his actual consumption (see McLachlin CJ, LeBel and Fish JJ at 58). Otherwise, the expert evidence has no weight. The minority’s mistake was to overlook the fact that it would be impossible for the defence to rebut the presumption by evidence of the driver’s consumption, without also adducing evidence of the level of alcohol that one would expect to find, and that could only be based on evidence from the population a large which would inevitably involve metabolism.

Imagine that the defence called evidence that satisfied the minority’s criterion: that the driver’s level fell within a range that was entirely below the limit. The prosecution might then seek to rebut this by calling evidence that his range straddled the limit. Why should straddling evidence be allowed to prove the driver was over, but not under, the limit? The alternative, that neither side should have recourse to straddling evidence, would be untenable because it would prevent the prosecution contesting the defence evidence.

But that’s not all. None of the judgments refer to the correct way in which the proposed evidence would be given. In accordance with Bayes’ Theorem, the expert should present the findings as a likelihood ratio: the probability of getting the results, given that the defendant was guilty, divided by the probability of getting the results, given that he was not guilty. The findings concerning straddling are only part of the data behind the result that the expert should report to the court. The minority’s restrictive approach would limit expert testimony to occasions where the testing indicated a very low posterior ratio of probability of guilt to probability of innocence, and this would be inconsistent with the presumption of innocence and the requirement that the defence only raise a reasonable doubt.

As an alternative to the rebuttable presumption, Canada may find more attractive the approach adopted in jurisdictions where there is a conclusive presumption. In para 76 LeBel J mentioned the issue of limitation on the presumption of innocence, but it is clear that such limitation would be demonstrably justified in a free and democratic society. That is the test in New Zealand under s 5 of the Bill of Rights, and we have a conclusive presumption in this context: s 77 Land Transport Act 1998; no one has as yet argued that this is unjustified.

And on a completely different matter, dicta in this case (para 50 – 51) illustrate a point that has been of some interest in another context: a requirement that the defence “show” something, in order to rebut a presumption, is not the same as a requirement that the defence “prove” that thing. The defence can “show” the thing (innocence) by raising a reasonable doubt, and this is not the same as “proving” it. See Hansen v R (blogged here 20 February 2007).

The fairness of inequality

Should the defence always be given the same access as the prosecution has to the criminal histories of people on the jury panel?

In R v King and Stevens [2008] NZCA 79 (10 April 2008) it was held that it was lawful for the police to access the criminal records of potential jurors, and that it was lawful for this information to be passed to prosecuting counsel. It was further held that where fair trial concerns warrant it, such information must be disclosed to the defence. One member of the Court, Robertson J, held that the defence should always be given this information, but the majority (William Young P and Chambers J) took a more restrictive approach, giving as examples of where disclosure to the defence would be appropriate (para 125):

“(b) Counsel for an accused serving police officer may wish to exclude any juror who may be thought to have an anti-police attitude. …

“(c) Counsel for a man accused of murdering a burglar and who is running self-defence and provocation may prefer a jury which does not include too many convicted burglars.”

The general requirement as formulated by the majority was (para 129):

“…disclosure will be appropriate (and should be directed by the Judge if necessary) where a defendant can point to some likelihood that, in the context of the particular case, jurors with criminal histories may have an adverse predisposition towards the defendant or the defence which is to be advanced.”

It is possible that prosecutors will be inclined to cite the specific instances mentioned in para 125 as if they were the only sorts of circumstances in which this general requirement applies, namely where the potential juror may be biased against the accused.

How, then, did the majority on this point justify inequality in automatic access to this information? After all, the Solicitor-General had, in argument, conceded that the defence should have the information automatically. The majority found this concession was over broad (para 123). They noted the difference between jury-vetting, which they saw as the exclusion of unfavourable jurors, and jury packing, the getting of a favourable jury. The crucial reasoning is at para 127:

“A requirement that criminal history information about potential jurors be automatically made available to the defence would equate the Crown purpose of seeking a jury which is free of those with non-disqualifying but perhaps still serious criminal histories with a defence desire (impractical of achievement though it may be) that a jury include people with such convictions. As far as we are aware, and leaving aside some obiter dicta in R v Sheffield Crown Court, Ex parte Brownlow [1980] QB 530 (CA), no Court has been prepared to proceed on that basis. Instead, courts in New Zealand (see Greening [1991] 1 NZLR 110 (Tipping J, HC), Watson CA384/99 8 May 2000 and Tukuafu [2003] 1 NZLR 659 (CA)), England and Wales (see Mason [1981] QB 881 (CA) and McCann (1990) 92 Cr App R 239 (CA)) and Australia (see Katsuno (1999) 199 CLR 40) have rejected the contention that there is anything inherently unfair in a defendant being tried by a jury where the Crown prosecutor has had access to previous conviction histories for the purpose of exercising rights of peremptory challenge (or the functionally equivalent right to direct potential jurors to stand by).”

This comes down to saying that it is OK for the Crown to want a jury that is not biased against it, but in practice it has not been thought OK for the defence to want a jury biased in its favour. Jury-vetting is acceptable, but jury stacking is not.

That may well be good policy, and the majority held that any change should be left to Parliament. They emphasised an important point made by Robertson J (para 119, referring to para 31): examination of the relevant legislative history shows that Parliament expressly rejected a ban on jury-vetting by the prosecution. This does not quite justify the majority position, however, because it is not to say that Parliament rejected defence access to the same information as was obtained by the prosecution from the criminal history database. Indeed, as all Judges noted (Robertson J at 89, William Young P and Chambers J at 116) the New Zealand Law Commission (Juries in Criminal Trials) has recommended that the defence should have automatic access to such information.

Should either side be allowed to vet, let alone try to stack? Peremptory challenges are not allowed in England and Wales (as both judgments note), but should they be abolished? While they are allowed, it seems wrong to impose traditional restraints on access to information when responsible defence counsel would, these days, run the prospective jurors’ names through Google (a point alluded to in para 98 of the joint judgment). Official coyness about disclosure of well deserved convictions seems quaint, especially as they must be disclosed in many situations where a person seeks a responsible position. Given that peremptory challenges are allowed, equal access to information about prospective jurors should ultimately be adopted.

Benign irrationality

Juries don’t give reasons, so why should judges?

The latest case on the proviso, the High Court’s decision in AK v Western Australia [2008] HCA 8 (26 March 2008), is another example of when an error at trial amounts to a “substantial” miscarriage of justice. Miscarriages of such magnitude cannot be cured on appeal by application of the proviso. In AK the trial had been by judge alone, and the judge had not given reasons for his verdict. Statute required that reasons be given. This failure was held, by a 3-2 majority, to be a substantial miscarriage of justice and a new trial was ordered.

Two majority judgments were delivered. Gummow and Hayne JJ jointly held that Weiss v R (blogged here 16 January 2006) and Wilde v R [1988] HCA 6 were not exhaustive of the situations that can give rise to a substantial miscarriage of justice. Here, the failure to give reasons for the verdict meant that the trial was not conducted according to law and that the miscarriage was therefore substantial (para 58). It was not to the point to ask whether the evidence supported the verdict.

This does not quite explain why the miscarriage was “substantial” as opposed to one that could be cured by the proviso if inspection of the evidence showed that the verdict was reasonable. Minor errors can mean that a trial was not according to law without it being necessary to quash the conviction. The other majority judgment, by Heydon J, went into the meaning of a substantial miscarriage in more detail.

The judgment of Heydon J is a forceful reminder of the advantages of trial by jury, and the resulting need to compensate for loss of those when trial is by judge alone. Footnote 75 is well worth a glance, for phrases in derogation of juries, eg many jurors are “unaccustomed to severe intellectual exercise or to protracted thought”. But juries bring a “benign irrationality” (para 97) to the proceedings. Quoting from Lord Devlin’s Trial by Jury (revised ed, 1966), Heydon J lists the five advantages of jury trials (para 93 – 97), and holds that it is necessary closely to observe the safeguards provided in relation to judge alone trials (para 98). The present case was one of extreme non-compliance with the requirement for reasons, which went to the root of the proceedings (para 109).

Within this framework, Heydon J mentions the power of juries to return perverse verdicts (para 97, and see blog entries for R v Wang 14 February 2005; R v Wanhalla 25 August 2006; R v Krieger 26 October 2006), the dangers in fact-finding by judges (para 101), the twin safeguards for the accused in the burden and standard of proof and the need for jury unanimity or a very substantial majority (para 102), the mental discipline imposed on the judge by the requirement for reasons (para 103 – 105 and 108), and the advantage that appellate courts have in ascertaining the appropriate inferences from the primary facts that have been determined by the judge in the context of the evidence that has been given (para 106, 107).

This approach to the question of how to identify a miscarriage that goes to the root of the proceedings takes us further than did the joint majority judgment, by saying that an example of this sort of miscarriage is one that, as here, prevents the appellate court from carrying out the protective function that is designed to compensate for the loss of the jury.

But is this case an example of that sort of miscarriage? The dissenting judgment of Gleeson CJ and Kiefel J acknowledges (para 17) that the appellant correctly pointed to the breach of the statutory requirement that the judge must give reasons for the verdict. Nevertheless, the magnitude of this error had to be assessed by its effect on the verdict. Here, the issue was narrow: who had committed the offences, the defendant or his brother? There was no evidence suggesting the brother was involved, and the judge’s finding that the offender was the defendant was supported by the objective circumstances (para 27). The absence of reasons was not an obstacle to application of the proviso here. So the dissenters were able to carry out the function of identifying the appropriate inference from the evidence that had been given, without being hampered by the absence of reasons for the verdict.

It is thus not necessarily persuasive to argue that an appellate court must have the judge’s reasons before it can carry out its role of compensating for the loss of a jury. Also questionable are the advantages that Lord Devlin attributed to juries. His prose was, of course, a fine example of the kind of eloquent rhetoric that now seems rather florid, and each of his propositions needs to be tested by experiment.

This is not to suggest that non-compliance with a statutory requirement to give reasons can be brushed aside. There has been a recent example of a seemingly technical error in procedure rendering a trial void (see blog on R v Clarke 7 February 2008 but contrast with Ayles v R 29 February 2008). The upholding of formal constraints on the exercise of power has its place, but it is fair to ask whether every failure to give reasons will inevitably amount to a substantial miscarriage of justice.

Truth and consistency

R v Stirling [2008] SCC 10 (14 March 2008) is an illustration of the common law’s treatment of the admissibility of a witness’s prior consistent statement. The important point has always been that such statements are not admissible as proof of their contents, but only as proof of consistency, and as such they go to the weight that the fact-finder may give to the witness’s testimony.

Central to this appeal is the idea that if the judge had used the prior consistent statement as evidence of its truth, then he would have made a serious error:

“[7] … it is impermissible to assume that because a witness has made the same statement in the past, he or she is more likely to be telling the truth, and any admitted prior consistent statements should not be assessed for the truth of their contents. As was noted in R. v. Divitaris (2004), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28, “a concocted statement, repeated on more than one occasion, remains concocted”…”

Further, para 12, the prior statement goes to the witness’s credibility in a general sense; it would be artificial to try to separate out the witness’s credibility on the topic(s) covered in the prior statement from the witness’s credibility generally.

Personally, I wouldn’t have thought that the distinction was that difficult, but Bastarache J, delivering the judgment of the Court, said that such a separation would be “impractical and artificial” (para 12).

It could also be said that the distinction between use of the prior statement for the fact it was made, as opposed to as proof of the truth of what it asserts, is impractical and artificial. It must be acknowledged that this distinction is well established at common law, and (broadly speaking) it applies to prior statements whether they are consistent or inconsistent with the witness’s testimony. It has also, I must admit, been shown to be workable in practice, although arguably more convincingly so in judge-alone cases than where the distinction has to be explained to a jury. But the artificiality of the distinction is easy to see in respect of inconsistent statements: if the fact-finder rejects the witness’s testimony, there is then no evidence - through the witness - on the point if the prior statement is not evidence of its own truth. The prior inconsistent statement cannot then be combined with other evidence in the determination of the relevant fact, even though it has been used to reject the witness’s testimony. Strictly, it also cannot be used to enhance the weight given to other evidence on the point.

It is more sensible to treat prior statements, once they are admissible, and whether they are consistent or inconsistent with the witness’s testimony, as being like any other statements: admissible to prove the truth of what they assert. Constraints on their admissibility are necessary to confine the evidence within manageable bounds, but once admissible the availability of their maker for cross-examination should remove the need for a rule rejecting them as proof of their truth.

So, what of the point made in the quotation from Divitaris in para 7 of Stirling? If the prior statement is alleged to have been a lie, its maker (the witness) can be cross-examined to show that. If cross-examination cannot undermine the truth of the prior statement, why should it not be admissible to prove its truth?

In New Zealand there is currently some uncertainty over whether s 35 of the Evidence Act 2006 has made prior statements evidence as proof of their truth. The Law Commission apparently intended them to be evidence of their truth, but there is a first instance decision holding that they are only proof of the witness’s consistency. My own view is that the section is clearly intended to make prior consistent statements admissible, in certain situations, as proof of their truth. Subsection (2) allows such statements to be used, inter alia, to respond to a challenge to the witness’s accuracy, and subsection (3) refers to circumstantial reliability of the prior consistent statement.

Dishonesty may not be deceptive

Occasionally, reading a case causes you to think of something almost completely unrelated. This happened to me when I read Norris v United States [2008] UKHL 16 (12 March 2008).

The almost completely unrelated thing
A great risk in writing articles in specialised areas of law is that the arguments advanced in them may be rejected by the highest courts. Why write at all?

The purest motive was put vividly by Emeritus Professor John Burrows QC, formerly of the University of Canterbury and currently of the New Zealand Law Commission, in an interview with Ursula Cheer on 24 January 2007: “… I think I enjoy research probably the most. Because it’s a great thrill in getting the material together in your own mind and producing something on paper and saying it's yours. It's really yours.”

Practitioners, as well as academics, may well expect career advancement as a result of their publications. For example, the following has appeared on the web site of one writer:

“As a consequence of his publication in February and March 2005 with Sir Jeremy Lever QC of a two part article in the European Competition Law Review entitled “Cartel agreements, conspiracy to defraud and ‘the statutory offence’ ”, he was instructed by a leading New York law firm in the high profile extradition case ‘The Government of the United States v Norris’, which was the first time that the issue of cartel crime has been tested in an English court. The article formed the basis of the US government’s case as presented by David Perry QC and was extensively quoted by the judge in his judgment; John was led by Alan Jones QC.”

This is the case that the House of Lords has now decided. Unfortunately their Lordships were critical of the article:

“59 The first time it was apparently suggested in any publication that price-fixing might be a common law offence was in an article written in 2005 by Sir Jeremy Lever QC and Mr John Pike, "Cartel Agreements, Criminal Conspiracy and the Statutory 'Cartel Offence'" [2005] ECLR 90. At p 95, the authors made the point, which has already been touched on, that if, in addition to the price-fixing, something positively misleading is said, such as a dishonest "representation … that offers are being made competitively", the criminal law will be engaged. More controversially, the authors then went on to suggest that making and operating secret price-fixing agreements could, of itself, operate dishonestly so as to constitute a crime, at least in circumstances where purchasers are acting in the belief, known to the price-fixers, that there is no price-fixing.

“60 This article was not only published after the 2002 Act, but a number of years after the activities complained of in count 1 had ended. So it is not as if even an astute reader of legal articles in this area of law could have informed himself at the relevant time of the possibility of his price-fixing activities attracting criminal sanctions. In any event, although the Divisional Court was impressed with the article, there are problems with the notion that mere secrecy can of itself render the price-fixing agreement criminal. It is not as if secrecy is always necessary for a price-fixing agreement to be effective, or that it is the secrecy which causes a purchaser loss. As already mentioned, in order to establish a criminal offence along the lines suggested by Lever and Pike, it would be necessary to show that it was the secrecy which caused the purchaser's loss, since it must be the alleged dishonesty which causes the loss.

“61 Quite apart from this, it would be dangerous and impractical, particularly for the judges, to introduce a general principle that there is some sort of implied representation that the price at which goods are offered has been arrived at on a certain basis. Finally, the very fact that it was not until 2005 that it was first suggested that secret price-fixing could of itself constitute a common law offence underlines the difficulty faced by the argument that it would have been a common law offence in the 1990s, especially when one considers the material which was available on the topic from Parliament and the courts.”

It is to be hoped that the writer of the impugned article will bounce back from this blow and appreciate the light that the House of Lords has cast on the subject. Or, he will wait for the next case and hope that the Law Lords change their minds.

The next case, as it happened, came the same day: R v GG plc [2008] UKHL 17 (12 March 2008). Here, Norris was applied and it was held that in relation to conspiracy to defraud by price fixing, more than mere secrecy is required to constitute the element of fraudulence. Misrepresentation and deception have been found to be necessary (para 16, citing Norris at para 19).

Points mentioned in these cases

• In the UK there was no common law or statutory offence corresponding to the strict liability offence created in the USA by s 1 of what is known as the Sherman Act (making agreements in restraint of trade illegal; here the relevant agreement was price fixing): Norris para 23, 52.
  

• Even if there had been a change in public perceptions of price fixing, it would be for Parliament, not the courts, to create a relevant criminal offence: Norris, para 57.
  

• Strictly obiter, but nevertheless determinative: in considering extradition, it is the overall conduct alleged against the defendant that must be considered, and in the UK the question is whether the conduct is against the law of the requesting country (whatever the particular offence may be) and whether it is against UK law (again, whatever the offence – not necessarily an identical offence to the foreign one): Norris para 90, 91.
  

• Conspiracy to defraud requires proof of an agreement to make false or misleading statements or to otherwise engage in actively fraudulent behaviour. Mere secrecy and deception is insufficient (GG plc, para 12, 18).
  

As can be seen from this last point, the concepts here can be rather subtle. It helps to focus on the causal requirement: the relevant deception is the one intended (agreed) to cause loss. Keeping the agreement to fix prices secret, even to the extent of telling lies to conceal the agreement from the authorities, does not cause customers to lose the opportunity of a better price. The prices would still be the same if the customers were told that the prices had been fixed by agreement between suppliers. The necessary deception would occur if it had been represented to the customers that the prices had not been fixed, when the person making that representation knew that that was untrue, and if that deception was (as, of course it would be) designed to induce the customers to make purchases, and if that representation caused the customer to part with more money than would otherwise have been the case.

In New Zealand we have repealed the offence of conspiracy to defraud, and currently the offence of obtaining by deception (or causing loss by deception) – s 240 Crimes Act 1961 – could in appropriate circumstances be charged as a conspiracy against s 310 of that Act, as conspiracy to obtain (or cause loss) by deception. “Deception” is defined in s 240(2) in terms that are expanded from those recommended in the Report of the Crimes Consultative Committee on the Crimes Bill 1989 (April, 1991), so even at that stage of revision of the law the matter was unsettled. The House of Lords decisions mentioned here would be relevant under these provisions.

Insufficiently bad is good enough

Four topics deserve mention here in connection with Pitman v The State (Trinidad and Tobago) [2008] UKPC 15 (3 March 2008). The first three of these are not new law, just reminders of the best way of conducting trials. The fourth, also not new,  is the ground on which the appeal was allowed.

Avoiding the ironic platitude
In commenting on the accused’s failure to give or to call evidence, the judge observed that much cross-examination of apparently reliable witnesses had included imputations against character that were not supported by evidence. The Board regarded the particular comments here as “ill-chosen and of a nature which should be avoided in a criminal trial” (para 20), and quoted a passage from the summing up which concluded “However, it is [the accused’s] right to have elected to remain silent, as he did, and you cannot hold it against him”, and held (para 19):

“if a judge makes unduly unfavourable remarks about a defendant or witness, which may be prejudicial, they cannot be sufficiently neutralised by resorting to the mantra in the last sentence of the passage quoted: cf Mears v The Queen [1993] 1 WLR 818.”

Here, the remarks were held to be insufficiently prejudicial to make the conviction unsafe. Plainly, however, the Board is warning against the recitation of the accused’s right to silence as an attempt to rectify improper comment.

The duty of a court in a criminal appeal
“It is the duty of the court in a criminal appeal to take account of all the grounds which could reasonably be advanced on behalf of an appellant, whether or not they have been sufficiently argued, and their Lordships think that it was desirable that this should have been done.” (para 25)

This point was also made in Charles v R (St Vincent and the Grenadines), blogged 20 July 2007, and not cited in Pitman. The point not argued in the court below in Pitman was whether the alleged joint enterprise may have come to an end before the killings, although the Court of Appeal had allowed the co-accused’s appeal on that basis.

Nevertheless, in Pitman the Board did not consider that there had been inadequate directions on joint enterprise at the trial, and this point was not determinative of the appeal. Some criticism was made, however, of the way the judge had approached the subject in his directions to the jury.

The best perspective on complex directions
In covering the subject of liability on the basis of joint enterprise, the judge had chosen the perspective of how the accused could be guilty. The Board considered (para 25):

“…it would have been preferable if the judge had spelled out in the case of each defendant how it might be said that he did not contemplate the murder of the victims ….”

The judge’s approach was not wrong, but it could have been better. It is quite natural for a judge to focus on ways in which an accused may be guilty, because the question is what the prosecution has to prove. However the judge has to show the jury how to relate points of law to particular facts. This can be done by drawing attention to how the prosecution may fail in its task. The Board made these general remarks applicable to allegations of joint enterprise, concerning how an accused may not be a participant (para 25):

“This could be argued in any case of this nature on several bases, according to the facts of the case: that the joint enterprise never went beyond robbery and that the defendant in question did not foresee that his confederate might go beyond that and commit murder; that when he realised that things were getting out of hand and that his confederate was intending murder, the defendant withdrew from the joint enterprise by a sufficiently clearly evinced dissociation; or that the defendant was no longer part of the joint enterprise, which had earlier come to an end. These are in truth facets of the same issue, whether the defendant was part of a joint enterprise which included as one of its elements the possible murder of another person. That depends on what was agreed, expressly or impliedly, by the defendant, and if a murder takes place it may be outside the parameters of the enterprise in a number of ways, including those specified above. It is desirable that a trial judge should tailor his directions to the evidence, so that the jury have put clearly before them the basis on which to decide if the defendant agreed to the commission of the act with which he is charged.”

Fresh evidence
The appeal was allowed in Pitman because fresh evidence had been obtained concerning the appellant’s mental capacity. The accused had not had the facilities before trial to obtain this evidence. It potentially had a bearing on several issues, and the case was remitted to the Court of Appeal for those to be considered.

To qualify as “fresh” the evidence must be capable of belief and there must be a reasonable explanation for its not having been called at trial. At para 31 the Board added:

“These factors are not, however, conclusive of the issue of admission of fresh evidence, and an appellate court has the overriding statutory power to admit it if it is in the interest of justice: see Benedetto v The Queen [2003] UKPC 27, [2003] 1 WLR 1545, and cf Smalling v The Queen [2001] UKPC 12.”

See also Bain v R (New Zealand) [2007] UKPC 33 (blogged here 11 May 2007) at para 34.

In Pitman, the fresh evidence rendered the convictions unsafe because (para 31 – 32) it was both capable of belief and prima facie raised issues which were substantial and such as to require proper investigation by the court. Accordingly, the Court of Appeal would have to approach the matter as follows (para 32):

“They will have to form an opinion on the appellant's mental capacity, then, depending on the opinion which they form, they may have to decide (i) whether he was fit to plead and stand trial (ii) whether there is a sufficient doubt about his ability to understand and participate in the joint venture (iii) whether his statement should have been admitted and, if necessary, (iv) whether there is sufficient evidence to raise the defences of unsoundness of mind or diminished responsibility. If they find in the appellant's favour on any of these issues, the conviction will be unsafe and must be set aside.”

In New Zealand many criminal lawyers will be thinking about R v Barlow, in which fresh evidence was, as announced yesterday, insufficient for the Governor-General to refer the case back to the Court of Appeal. That case seems to be heading to the Privy Council. No doubt the question will be whether the fresh evidence there makes the convictions unsafe. They would be unsafe if the jury did not have evidence which was both capable of belief and relevant to assessment of the weight of the evidence it did have.

[Update: for the Privy Council decision in Barlow, see note for 9 July 2009.]

Facing inevitable defeat

Every barrister knows the difficulty of presenting a hopeless case. Especially so in criminal law, where the likelihood of settling (pleading guilty) is small. Sometimes, dissenting judgments can give clues about how the best possible arguments can be advanced.

A disagreement about whether there had been substantial defects at trial which went to the root of the proceedings occurred in Ayles v R [2008] HCA 6 (28 February 2008). The minority, Gleeson and Kirby JJ jointly took an approach similar to that of the House of Lords in R v Clarke (blogged 7 February 2008), on the issue of whether a requirement for a note on the information or indictment of an amendment to a charge is a mandatory requirement. The dissent also concerned whether a statutory provision allowed the judge to amend the charge without an application for this having been made by the prosecutor.

In Ayles the majority held that in the particular circumstances of this case there had been no unfairness to the accused in the procedure that had been adopted to amend the charge. This indeed seems correct, as the only material factual dispute in the case had been resolved in this judge-alone trial by acceptance of the accused’s version. Also, the difficulty with the charge had been the subject of discussion during the hearing and defence counsel had not taken up an opportunity to object to an amendment which was of the kind that the judge eventually made in the course of her judgment. There had been a change in the statutory provision which needed to be specified, the relevant one depending on what was the date of the offending. Apart from the section number, the change was not relevant to the facts of the case. As Kiefel J (with whom Gleeson CJ and Heydon J agreed) said at para 75, the defence could have had no objection to the amendment during the hearing. The relevant statutory provision, s 281(2) of the Criminal Law Consolidation Act 1935 (SA), did not limit the judge to acting only on an application for amendment, but she could amend the charge on her own initiative. Further, as a matter of interpretation, the particular provision requiring a note of the amendment to be made on the information or indictment, s 281(3), was not a condition for the validity of an order for amendment.

The minority in Ayles held that the noting of the amendment on the information or indictment was imperative, not directory. Since it was fundamental that a person cannot be convicted of an offence that is not alleged against him, there had been a basic defect in the proceedings. R v Clarke [2008] UKHL 8 was approved, particularly its overruling of R v Ismail (1990) 92 Cr App R 92. Further, the judge should not have amended the charge without an application from the prosecutor, because it is necessary to keep separate the functions of judge and prosecutor. Citing Gaudron and Gummow JJ in Maxwell v The Queen [1995] HCA 62 at para 26 for the proposition

“The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what”

they continued (para 37):

“The last-quoted sentence is of fundamental importance. It affords a most important principle that lies at the head of the resolution of this appeal. A decision to amend an information so as to add or substitute a new charge is plainly a decision about the particular charge to be laid or prosecuted, yet any suggestion that a court could - let alone should - decide for itself the offences with which a defendant is to be charged would be inimical to the judicial process.”

Applying R v Weiss [2005] HCA 81 (blogged here 16 January 2006) the minority held that these substantial defects went to the root of the proceedings and the proviso could not be applied.

It is surprising that there should be such a sharp difference between the interpretations of the legislation. Here are the relevant subsections of s 281:

“(2) When before trial, or at any stage of a trial, it appears to the court that any information is defective or that there is any variation between any particular stated therein and the evidence offered in proof thereof, the court shall make such order for the amendment of the information as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendment cannot be made without injustice.

“(3) When an information is so amended, a note of the order for amendment shall be endorsed on the information and the information shall be treated, for the purposes of the trial and all proceedings in connection therewith, as having been presented in the amended form.”

The majority’s interpretation seems unanswerable: subsection (2) does not require an application to be before the judge before an order for an amendment can be made, and subsection (3) applies upon the information being amended and is not a condition for that amendment. By way of contrast, in Clarke the relevant legislation had provided: “where a bill of indictment has been so preferred the proper officer of the court shall, if he is satisfied that the requirements of the next following subsection have been complied with, sign the bill, and it shall thereupon become an indictment and be proceeded with accordingly”; that is, the signing is the act that makes the document an indictment and so is an essential condition for the existence of the indictment.

Looking at the case from a distance, I imagine that the real unfairness (although that is not quite the right word) lay in the accused being denied the opportunity to enter, and take sentencing credit for, an early guilty plea to a properly framed charge. That matter could have been sorted out at trial, but defence counsel chose not to make submissions on the point, and there could well be proper reasons for not doing so. Having played the cards that way, it was too late on appeal to ask for another deal.

The minority judgment in Ayles is a lesson in how to endeavour to meet an overwhelming argument: go to the fundamentals (here, procedural fairness and the limits of proper judicial function) and argue that the case is one of substantial miscarriage of justice. This may, as here, involve a retreat into principle and away from the facts and particular circumstances. Although not a victory, it was a dignified defeat.

Judicial warnings about eyewitness identifications

Not all the warnings necessary as a safeguard against misuse of identification evidence may be required by statute. The common law may supplement what statute requires.

Evidence Acts can be rather vague on what sort of warnings to juries must be given concerning eyewitness identification. In New Zealand, s 126 of the Evidence Act 2006, and in Australia (in jurisdictions where it is applies or is adopted), s 116 of the Evidence Act 1995 (C’th), both provisions are in general terms. Often the matter is entirely one for the common law, as in may be in Canada and is in the United Kingdom.

In Pipersburgh v R (Belize) [2008] UKPC 11 (21 February 2008) there had been no identification parade and the first visual identification of the accused persons as the offenders was made in the courtroom. The Privy Council held that its decision in Holland v HM Advocate [2005] UKPC D1 at para 47 applied. This is as follows:

"In the hearing before the Board the Advocate-depute, Mr Armstrong QC, who dealt with this aspect of the appeal, accepted that identification parades offer safeguards which are not available when the witness is asked to identify the accused in the dock at his trial. An identification parade is usually held much nearer the time of the offence when the witness's recollection is fresher. Moreover, placing the accused among a number of stand-ins of generally similar appearance provides a check on the accuracy of the witness's identification by reducing the risk that the witness is simply picking out someone who resembles the perpetrator. Similarly, the Advocate-depute did not gainsay the positive disadvantages of an identification carried out when the accused is sitting in the dock between security guards: the implication that the prosecution is asserting that he is the perpetrator is plain for all to see. When a witness is invited to identify the perpetrator in court, there must be a considerable risk that his evidence will be influenced by seeing the accused sitting in the dock in this way. So a dock identification can be criticised in two complementary respects: not only does it lack the safeguards that are offered by an identification parade, but the accused's position in the dock positively increases the risk of a wrong identification."

Accordingly, two issues needed to be addressed by the judge in directing the jury: the general dangers concerning eyewitness identification, and the particular dangers concerning dock identification. The Board summarised the inadequacies of the judge’s directions, para 17 of Pipersburgh:

“In the present case, it may well be that the judge bemoaned the fact that no identification parade had been held and pointed out the advantages of such a parade. But, despite what the Board had said in Pop v The Queen (Belize)[2003] UKPC 40, he did not point out that Mr Robateau [one of the appellants] had thereby lost the potential advantage of an inconclusive parade. Moreover, while giving directions on the care that needs to be taken with identification evidence in general, the judge did not warn the jury of the distinct and positive dangers of a dock identification without a previous identification parade. In particular, he did not draw their attention to the risk that the witnesses might have been influenced to make their identifications by seeing the appellants in the dock. And, perhaps most importantly, even if the judge's directions would have ensured that the jury appreciated that this type of identification evidence was undesirable in principle, he did not explain that they would require to approach that evidence with great care. On the contrary, the closing words of the direction really left the whole matter to the jury on the basis that the witnesses said that they knew the men and it was simply up to the jury to accept or reject their evidence.”

The circumstances in this case demonstrate that even where, in the opinion of a court of first appeal, the witnesses observed the offenders in good conditions of lighting, distance and time, and where they claimed to be recognising people they had seen several times before, it is still necessary for the judge to give a detailed warning about the risk of error.

Identifying dangerous driving

You might think from my discussion of R v Hayes, blogged 15 February 2008, that analysing the actus reus and mens rea of an offence is quite easy. In R v Beatty [2008] SCC 5 (22 February 2008) the Supreme Court of Canada unintentionally demonstrated just how difficult it can be.

At issue here was the meaning of “dangerous” operation of a motor vehicle. The Court split into separate judgments 5-3-1, and each discussed the actus reus and the mens rea requirements.

This was a case where a driver who had otherwise been driving unexceptionally suddenly crossed the centre line into the path of an oncoming vehicle, resulting in the deaths of all its three occupants. The question was whether a momentary lapse of attention could constitute dangerous driving.

The Court unanimously allowed the appeal and restored the appellant’s acquittal. The reasoning was not unanimous.

As to actus reus, five Judges held that this was established. Charron J delivered the judgment of herself, Bastarache, Deschamps, Abella and Rothstein JJ, saying (para 43):

“…it may assist to restate the summary of the test in terms of both the actus reus and the mens rea of the offence. I respectfully disagree with the Chief Justice that the test for the actus reus is defined in terms of a marked departure from the normal manner of driving (para. 67). The actus reus must be defined, rather, by the words of the enactment. Of course, conduct that is found to depart markedly from the norm remains necessary to make out the offence because nothing less will support the conclusion that the accused acted with sufficient blameworthiness, in other words with the requisite mens rea, to warrant conviction. In addition, it may be useful to keep in mind that while the modified objective test calls for an objective assessment of the accused’s manner of driving, evidence about the accused’s actual state of mind, if any, may also be relevant in determining the presence of sufficient mens rea. I would therefore restate the test reproduced above as follows:

(a) The Actus Reus
The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place”.

(b) The Mens Rea
The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.”

This approach makes the question of the departure from the normal standard of driving relevant to mens rea, and Charron J concluded that although there was an actus reus, there was no mens rea because momentary negligence was insufficient to be a marked departure from the standard of care of a prudent driver.

McLachlin CJ delivered the judgment of herself, Binnie and LeBel JJ, and summarised their position at para 67:

“I therefore conclude that the correct statement of the law is as follows:
1. The actus reus requires a marked departure from the normal manner of driving.
2. The mens rea is generally inferred from the marked departure in the nature of driving. Based on the finding of a marked departure, it is inferred that the accused lacked the requisite mental state of care of a reasonable person.
3. While generally the mens rea is inferred from the act constituting a marked departure committed by the accused, the evidence in a particular case may negate or cast a reasonable doubt on this inference.”

Further, momentary lapse of attention could, without more, establish neither actus reus nor mens rea (para 69).

Accordingly, on this approach there was no actus reus or mens rea, but in particular there was no actus reus as there was no larger pattern of impugned driving.

In the third judgment, Fish J agreed with Charron J about the actus reus being defined according to its statutory context (para 84), and also agreed that there was no mens rea in the circumstances of this case, as the appellant had not failed to meet the objective standard of a reasonable person in the circumstances (para 87).

The difference in this case was over the actus reus: six judges held that it must be determined according to its statutory context, and that here an actus reus was proved, because crossing the centre line was dangerous. Three judges held that the actus reus was not proved because a marked departure from the normal standard of driving was necessary and this was not established by an instance of crossing the centre line in the context of an otherwise unobjectionable pattern of driving (para 66):

“…The actus reus is the act and the mens rea, or guilty mind, the intention to commit that act. If the mens rea of the offence requires a failure to take reasonable care which is inferred from the conduct of driving in a manner that represents a marked departure from the norm, then the actus reus must be the act of driving in a manner that represents a marked departure from the norm.”

This is the critical point of difference between the judges: is the actus reus to be defined as a result of the requirements of the mens rea? Para 66 begs the question in its minor premiss “which is inferred from the conduct of driving in a manner that represents a marked departure from the norm”.

It is not unusual for crimes to involve acts that are apparently innocuous but which are rendered culpable because of the state of mind with which they are done. Attempts are paradigm examples, but there are many others. On the minority view in Beatty, would driving while texting be dangerous, if there was no accident? Should this depend on how normal it is to drive while texting?

Retrospective application of new rules

When judges strengthen the rule against hearsay to protect the accused’s right to a fair trial, can people who were convicted under the old, lax, form of the rule complain? Does the new rule apply only to future cases (plus the case deciding the new rule), or can it be applied retrospectively?

In the United States of America, Teague v Lane, 489 U.S. 228 (1989) established a general rule for when changes in rules of criminal procedure can be applied retrospectively. The Teague rule is that such changes do not apply to cases that have become final before the new procedure is announced, with two exceptions: first, new rules putting conduct beyond the power of lawmakers to proscribe will be applied retrospectively, and second, watershed rules that implicate the fairness of the trial will be applied retrospectively.

Naturally enough, the interpretation of the Teague rule has generated much discussion and litigation. Yesterday, for example, the Supreme Court decided Danforth v Minnesota No 06-8273 (20 February 2008), and held that the Teague rule is a limitation on the right of Federal courts to overturn State court convictions, and it is not a limitation on the power of State courts to grant relief. That is, State courts may retrospectively apply changes to rules and may grant remedies, outside of the constraints of the Teague rule.

In Danforth the hearsay rule was relevant, underlying the admissibility of a child complainant’s video testimony. The child did not give evidence at trial, but a video recording of an interview with the child was played. In Crawford v Washington, 541 U.S. 36 (2004) the rule against hearsay evidence was strengthened by eliminating an exception based on indicia of reliability of confrontational testimony. The new rule is that hearsay of a confrontational nature can be admissible if the witness (ie, the person whose utterances are sought to be used as evidence) is unavailable and if the defendant had a prior opportunity to cross-examine the witness. “The only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” This new rule is referred to as a new constitutional rule of criminal procedure. It is constitutional in the sense that it is an application of the Sixth Amendment right of an accused to be confronted by the witnesses against him, via the Fourteenth Amendment’s due process guarantee that trials will be fair. The new rule was not, therefore, an invention of the Court arising from its own policy preference, instead its origin was the Constitution itself. The rule was new in the sense of not being dictated by judicial precedent at the time it was articulated. For discussion of the rule, click here.

The Minnesota State Supreme Court in Danforth had held that it was not free, under the rule in Teague, to apply Crawford to the present case. Crawford had been decided after the petitioner’s conviction had become final. The US Supreme Court reversed this decision and remanded the case for further consideration. The Opinion of the Court noted, at pp 26-27 that the question whether there had been a violation of a right was distinct from whether there was a remedy:

“It is fully consistent with a government of laws to recognize that the finality of a judgment may bar relief. It would be quite wrong to assume, however, that the question whether constitutional violations occurred in trials conducted before a certain date depends on how much time was required to complete the appellate process.”

The US Supreme Court held (p 4) that the court below had correctly recognised that it was not obliged to apply Crawford, but held that the lower court was not prohibited from doing so.

So, after all that, it was for the State court to decide whether the new hearsay rule should apply to convictions that had been finalised before the rule was laid down. It may seem a little strange that the Supreme Court did not simply decide that the second exception to the Teague rule required that the new hearsay rule applied retrospectively, because confrontation was necessary to the fairness of the trial. Without confrontation there was no sufficient reliability, and without an opportunity to challenge the reliability of the witness the trial was not fair. Perhaps the answer is that the fairness of a trial requires consideration of all its circumstances: generally speaking, if an accused had fully and freely confessed to a crime, that confession could be sufficient on its own, or together with other non-hearsay evidence, to sustain a conviction.

The case calls to mind differing approaches to interpretation of the Constitution. Richard A Posner, in “Overcoming Law” (1995) p 174 notes that interpretation is as much creation as discovery. Aharon Barack, in “The Judge in a Democracy” (2006) pp 149-152 discusses Old Textualism, saying that “for the true intent of the author it substitutes the intent of the interpreter.” EW Thomas, in “The Judicial Process” (2005) at pp 25-26 says the declaratory theory “assists to absolve judges from personal responsibility for their decisions.” Richard Posner, in “The Problems of Jurisprudence” (1990) at p 299 prefers to recognise that interpretation has plural goals – “fidelity to framers’ intent, certainty, coherence, pragmatically good results.” Was the new rule in Crawford really dictated by the framers’ intent, or would they have recognised that reliability of hearsay evidence can be established by methods other than confrontation?

You can't always get what you want ...

Where dishonesty offences involve the obtaining of a pecuniary advantage or valuable consideration, does that include getting what one is entitled to?

And, do such offences require, to negative the elements of dishonesty and absence of claim of right, a belief in entitlement to be reasonable?

In Hayes v R [2008] NZSC 3 (15 February 2008) these questions were answered yes and no respectively.

An example of this sort of offence, and one considered in Hayes, is s 228 of the Crimes Act 1961[NZ]:

“Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration,—
(a) dishonestly and without claim of right, takes or obtains any document; or
(b) dishonestly and without claim of right, uses or attempts to use any document.”

The first thing a lawyer does is ascertain what is the actus reus of each of these offences. Here, the verbs takes, obtains, uses, attempts to use are the proscribed acts, done in relation to any document. No other act is required to be proved by the prosecution, and in particular there is no reference to pecuniary advantage or valuable consideration as part of the actus reus. It is the mens rea to which those matters are relevant.

Secondly, a lawyer will ask what constitutes mens rea for these offences. The mental elements are indicated by the words “with intent to obtain” any of the specified things. In Hayes it was held that pecuniary advantage includes the obtaining of something that one does not already have, even if one is entitled to have it. Anything that enhances the defendant’s financial position is a pecuniary advantage (para 16). This interpretation of pecuniary advantage followed that in Attorney-General’s Reference (No 1 of 2001) [2003] 1 WLR 395. Other elements of mens rea for these offences are dishonesty and absence of a claim of right. It is in relation to these that a belief in entitlement will be relevant.

As to whether the belief in entitlement has to be a reasonable belief, the Supreme Court held that it does not. A subjective belief is sufficient to negative mens rea (para 34, 35). The Court indicated that in directing a jury on this issue the judge should not refer to an honest belief, but instead should refer to the accused’s belief (para 34).

The Court examined the Crown’s submission that if there was no reasonableness requirement for absence of mens rea the law in New Zealand would be out of step with that elsewhere. This was rejected after considering the position in England, Australia, and Canada.

Strange as it seems, this aspect of the appeal had not been argued in the Court of Appeal. In R v Hayes [2007] NZCA 6 (14 February 2007) the appellant had argued that the Crown had to prove that the accused was not entitled to the pecuniary advantage in question. This was on the assumption that entitlement would negate advantage. The Court of Appeal, applying its earlier decisions, held (para 14 – 16) that there would be a pecuniary advantage if the accused had used a document in a way that avoided disclosing information that would have led to a reduction in payment, and that the accused’s actual entitlement was not in issue. In the Supreme Court the same result was reached, but it was the newly taken point on the subjectiveness of mens rea that required the appeal to be allowed (para 37):

“The Judge was thereby treating the reasonableness of the accused’s belief as a necessary ingredient rather than as simply having evidentiary significance on the question whether it was or was not held. On conventional principles this was a material misdirection which gave rise to a substantial miscarriage to which it would not be appropriate to apply the proviso to s 385(1) [of the Crimes Act 1961]. There must be a real risk that the jury, or at least some members, might have thought that Ms Hayes actually held the belief she asserted but that it was not reasonable for her to do so.”

In terms of the approach to the proviso preferred in these blogs, this was an example of the kind of substantial miscarriage of justice that arises when a misdirection results in a real risk that the law has not been applied by the jury. There was no attempt to assess the strength of the evidence and the chance of a different verdict, because the trial was fundamentally flawed.

Power and legality

Formalism, technicality, the principle of legality versus substantive justice: when can statutory requirements concerning court procedures be overlooked?

In R v Clarke [2008] UKHL 8 (6 February 2008) the failure of a court official to sign an indictment was held to invalidate the ensuing trial and to require the quashing of the convictions on that invalid indictment.

Lord Bingham delivered the leading opinion; at para 17 he observed:

“…It is always, of course, lamentable if defendants whose guilt there is no reason to doubt escape their just deserts, although the present appellants, refused leave to appeal (on other points) by the single judge in 1977 and the full court in 1998, have now served the operative parts of their sentences. Technicality is always distasteful when it appears to contradict the merits of a case. But the duty of the court is to apply the law, which is sometimes technical, and it may be thought that if the state exercises its coercive power to put a citizen on trial for serious crime a certain degree of formality is not out of place. …”

The approach to the procedural breach was to ask two questions: what did the legislature intend the consequences of the breach to be as far as the document in question was concerned, and, if the document was void, what did parliament intend the consequences to be as far as the trial was concerned.

Here, the legislation and the history of judicial application of it (in the main), led inescapably to the conclusion that an unsigned indictment was void and a trial upon a void indictment was not valid.

A difficulty, requiring clarification, was recent Court of Appeal departure from its own authority, R v Morais (1988) 87 Cr App R 9. Morais, upheld in the present case, had not been followed in R v Ashton, R v Draz and R v O'Reilly [2006] EWCA Crim 794, [2007] 1 WLR 181. Ashton had been greeted by a number of academic authorities as “a victory of substance over formalism” (para 17). Lord Bingham concluded (para 20):

“…I cannot, however, accept the basis upon which the court in R v Ashton distinguished its earlier decision in R v Morais. …”

In Ashton the Court of Appeal had made the mistake of turning the question of the intention of the legislature into a search for prejudice to the defence, and a use of the lack of any such prejudice as grounds for treating the statutory requirement as a technicality.

It is not unusual to hear judges ask counsel for the defence to identify what prejudice the accused will suffer from the departure from a requirement of procedure. In such cases, the question will be, what was the intention behind the establishment of the procedure. Absence of prejudice will often, but not always, be an answer to an irregularity.

No, you decide ...

When should a court of second appeal remit the question of whether to apply the proviso to the appellate court below?

The proviso allows an appellate court to dismiss an appeal on the basis that an error that had occurred at trial did not amount to a “substantial” miscarriage of justice.

In Mahmood v Western Australia [2008] HCA 1 (30 January 2008) the High Court of Australia remitted to the Court of Appeal of the Supreme Court of Western Australia the question of whether the proviso should be applied. The error at trial, the occurrence of which the Court of Appeal had not accepted, was held by the High Court to have been a failure by the trial judge to give the jury a direction, when all she had given was a comment.

Directions are binding on the jury, whereas comments may be ignored: para 16 of the joint judgment of Gleeson CJ, Gummow, Kirby and Kiefel JJ (with which Hayne J agreed).

In this case, part of a video tape made a week after the murder of the accused’s wife, showing the accused reconstructing for the police his movements at the scene, was shown to the jury at the request of the defence. This was to show how the accused got blood on his clothing. The defence was willing to have the jury shown the whole tape, but the prosecution objected on the ground that the tape was self-serving. The only judge to deal with this point in the High Court, Hayne J, held that the whole tape was no more self serving that an ordinary police interview which included denials of guilt: there were aspects of an inculpatory nature, such as admissions of presence at the scene, opportunity, and so on. The prosecution should adduce all the admissible evidence that it has that incriminates the accused (para 38 – 41).

A problem arose at trial because the prosecutor in closing suggested to the jury that the accused’s demeanour in the part of the video they were shown disclosed a lack of emotion consistent with a cold-blooded intent to kill. The judge declined a defence request to have the whole tape shown, saying she would deal with the matter in her summing up to the jury.

The Court of Appeal had held that what the judge told the jury was sufficient to rectify the unfairness that arose from the prosecutor’s comments. The High Court disagreed, and remitted the question of the application of the proviso to the Court of Appeal.

What would an ordinary bystander expect the Court of Appeal to do? Probably, to conclude that the failure to give the jury a direction did not matter because the comment was sufficient to rectify the unfairness.

Only the comments of Hayne J could draw the Court of Appeal away from their earlier stance. From his approach it is clear that much evidence (the two hour video tape, of which only a few minutes had been shown to the jury) that should have been adduced by the prosecution was not, and that this included evidence that could have assisted the defence.

The way the proviso is to be approached in Australia has been considered most recently in Evans v R (blogged here 20 December 2007). There, since the defence was not able to be fully put at trial (alibi evidence was not permitted to be called), and because inadmissible evidence had been allowed, the proviso could not be applied. Mahmood seems to be a case where the proviso should not be applied because a significant amount of evidence in this purely circumstantial case had not been received by the trial court.

The approach to the proviso is still obscure, even though there have been numerous considerations of it by the High Court. In declining to address the difficulty further in this case, and in remitting the question to the lower appellate court, the High Court has left the impression that it may be getting a bit tired of wrestling with the problem of when to apply the proviso.

A lesser right

When does a breach of a detainee’s right to be informed of the reasons for detention or arrest make the detention or arrest unlawful?

In Saadi v UK [2008] ECHR 79 (29 January 2008) the appellants had been held in detention at a facility at Oakington for 76 hours before they were properly informed of the reasons, which were that this was the procedure for fast-tracking their applications for refugee status. The Grand Chamber held, 11 to 6, that the procedures for processing applicants for refugee status did not breach their right to liberty and security (Art 5 § 1), but it held unanimously that there had been a violation of the Art 5 §2 right to be informed promptly of the reasons for the detention.

This latter point, that there was a breach of the right to be informed promptly of the reasons for arrest or detention, had been accepted by the House of Lords: [2002] UKHL 41 at para 48, per Lord Slynn with whom the others concurred:

“48. It is agreed that the forms served on the claimants here were inappropriate. It was, to say the least, unfortunate but without going as far as Collins J [at first instance] in his criticism of the Immigration Service, I agree with him that even on his approach the failure to give the right reason for detention and the giving of no or wrong reasons did not in the end affect the legality of the detention.”

Why not? This point, apparently being agreed between the parties, was not explained. The Court of Appeal, [2001] EWCA Civ 1512, did not deal with it, and Collins J (whose judgment is appended to the CA’s judgment) held, at para 15:

“The use of inappropriate forms and the giving of reasons for detention on those forms which may not have been wholly accurate do not affect the lawfulness of the detention. The real reason [for the detention] was the new Oakington process [ie the fast-track processing of applications]. If that was lawful, the disgraceful failure to prepare proper forms cannot render it unlawful. In any event, it may be that in the cases of the illegal entrants the immigration officers could properly rely on at least the absence of identification and the clandestine entry as factors justifying detention even if, had Oakington not been used, temporary admission would have been granted. I do not need to go into the matter further since Mr Scannell has not sought to argue that the muddle about reasons renders the detentions unlawful.”

In the European Court, the Grand Chamber upheld the Chamber’s decision that there had been a breach of the right to be informed promptly of the reasons for detention, and also that the finding of the Court constituted just satisfaction for the breach. This had not been contested on the appeal to the Grand Chamber.

Accordingly, it seems that it must be taken as obvious that if a detention is lawful, it will not become unlawful merely because of a breach of the right to be informed of the reasons for it. This right must be seen as very much a lesser right, than the right to liberty. Pragmatically, of course, that is appropriate, as it may be difficult to communicate with uncooperative detainees. The breach might have some utility in supporting a claim of self defence, if the defendant, having offered physical resistance to being detained, was consequently charged with obstruction or assault.

This approach, separating questions of the lawfulness of the arrest or detention from questions of the consequences of the breach of the right to be informed promptly of the reasons for the arrest or detention, is common. For example, in Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA), it was held that:

“[64] In the High Court Miller J was prepared to accept that there were breaches of s23(1)(a) and (b) of the New Zealand Bill of Rights Act [the right to be informed at the time of the arrest or detention of the reason for it, and the right to consult and instruct a lawyer without delay and to be informed of that right] which occurred when the appellant was taken into custody pursuant to the interim recall order. He concluded, however that the detention was not unlawful and, in this regard, he referred to R v Shaheed [2002] 2 NZLR 377. Miller J was unimpressed by the contention that there was also a breach of s23(3) [the right to be brought before a court as soon as possible]. He said that the suggestion that the appellant should have been taken before a Court was inconsistent with the procedure provided for under the Criminal Justice Act. In any event, when the appellant was taken into custody on the interim recall warrant, he was not "arrested for an offence".

“[65] We broadly agree with Miller J although we have reservations as to whether there was a breach of s23(1)(a) and, indeed, as to the relevance of Shaheed. The failure to comply with s23 did not render the detention under the interim recall warrant unlawful. Still less could such failure render unlawful the detention under the final recall warrant. The contention that the appellant was required to be taken before a Court by reason of s23(3) is untenable essentially for the reasons given by Miller J.”

Here the Court of Appeal had reservations about whether it was relevant to balance the right of the state to recall a parolee to detention against the right of the parolee to be informed of the reasons for his detention, which is the exercise behind the reference to Shaheed. It would indeed be an extension of the application of Shaheed if it were to be used in this context, because that is currently reserved for the determination of evidence admissibility (now enacted in s 30 of the Evidence Act 2006). What is noteworthy here is the way the courts assume that breach of the lesser right could not affect the lawfulness of the arrest or detention.