The travelling writ

An appreciation of the pioneering impact of Boumediene v Bush [2008] USSC No 06-1195 (12 June 2008) can be obtained from the closing remarks of Scalia J (dissenting, joined by Roberts CJ, Thomas and Alito JJ):

“Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.

“The Nation will live to regret what the Court has done today. I dissent.”

It is the extension of the privilege of applying for the writ of habeas corpus to aliens abroad that is the central point in the majority decision (Kennedy J, joined by Stevens, Souter, Ginsburg, and Breyer JJ). But of more general interest to criminal lawyers are the reasons that the procedural protections that are in place for detainees at Guantanamo Bay fall short of what would be sufficient to displace the need for habeas corpus review.

These shortcomings are:

• Absence of legal representation
  

• A presumption that the Government’s evidence is valid
  

• An absence of limits on the use of hearsay evidence deemed relevant and helpful by the tribunal, rendering the opportunity to question Government witnesses more theoretical than real
  

• Limitations on a detainee’s ability to rebut the Government’s evidence
  

• Inability to cure procedural defects by appeal process
  

These procedural defects create “a considerable risk of error in the tribunal’s findings of fact” (Kennedy J at p 56), a risk too significant to ignore, especially as the detention is of indefinite duration. Such errors would, in each case, go to the legitimacy of the detention; without an adequate substitute for review by a court on habeas corpus, the statute removing the privilege of the writ was unconstitutional.

Lioness or Alsatian?

Does the standard of proof of a fact change according to the seriousness of its consequences?

The common law recognises only two standards of proof: the balance of probabilities, and beyond reasonable doubt. Lord Carswell made this observation yesterday in In re Doherty [2008] UKHL 33 (11 June 2008) at para 23.

The standard of proof on the balance of probabilities does not vary according to the gravity of the issue: obviously, where something is inherently unlikely, it will be more difficult to establish on the balance of probabilities that it happened, but the standard is the same as for all cases where that standard of proof applies. Lord Carswell, with whom all the other Law Lords agreed, cited at para 26 Lord Hoffmann’s “lion or Alsatian” illustration in para 55 of Secretary of State for the Home Department v Rehman [2001] UKHL 47, [2003] 1 AC 153:

“I turn next to the commission's views on the standard of proof. By way of preliminary I feel bound to say that I think that a 'high civil balance of probabilities' is an unfortunate mixed metaphor. The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard. But, as Lord Nicholls of Birkenhead explained in In re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563, 586, some things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent's Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not.”

The standard of proof referred to in Doherty concerned an allegation of offending that had been made about a person who had been sentenced to life imprisonment where the ultimate issue was whether it was consistent with the safety of the community that he again be released on parole. The House of Lords held that the tribunal, the Life Sentence Review Commissioners, had correctly applied the standard of proof on the balance of probabilities to this issue.

Lord Brown, agreeing with Lord Carswell, added that it was appropriate to highlight a difficulty concerning the relevance of the consequences for a party if the issue was proved against him: this should not be relevant to whether the standard of proof had been met. The only relevant consideration was the inherent probability of the fact in issue. He recognised however, para 48, that there are some dicta that suggest otherwise, particularly B v Chief Constable of the Avon and Somerset Constabulary [2001] 1 WLR 340, per Lord Bingham as LCJ at para 41, and that hold that where the issue has serious consequences for the party adversely affected, the civil standard of proof becomes almost indistinguishable from the criminal standard. As to this, Lord Brown observed:

“ … I question whether it would not have been more logical and appropriate to have decided that the making of the various orders calls for the criminal standard of proof to be satisfied in the first place. Certainly, once it became established, as finally it was in In re H, that there is no such thing as an intermediate standard of proof, logic surely demanded that one standard or the other be applied and common sense dictates the rest.”

Lord Neuberger agreed with Lord Carswell and also with Lord Brown, so this point has the authority of at least two of the Law Lords in In re Doherty; the others (including Lord Bingham) did not mention it.

Clarification of the fixed nature of the standards of proof does not clear up confusion about when a standard of proof applies. Questions of admissibility of evidence depend on the existence of facts, and it is not always clear whether a standard of proof of those facts applies. In Jiang v R (blogged here 5 July 2007) the New Zealand Supreme Court held that admission of evidence pursuant to the co-conspirators’ exception (also known as the preconcert exception) to the rule excluding hearsay requires “reasonable evidence” of the existence of the common enterprise and the participation of the relevant accused person in it. How does “reasonable evidence” compare with the “balance of probabilities”: is it a higher or a lower standard? Is it a third standard of proof?

And when does any standard of proof apply? Some decisions are described as matters of judgment not amenable to any particular standard of proof. Balancing exercises commonly occur when the court has to compare the probative value of evidence against its illegitimately prejudicial effect, and no particular standard of “proof” seems to apply to that exercise. Even recently established statutory schemes can be vague: for example the exclusion of improperly obtained evidence can occur if the impropriety is proved on the balance of probabilities and then if the court determines (no standard specified) that exclusion would be a proportionate response to the impropriety: s 30 Evidence Act 2006[NZ].

Some people think it is inappropriate to apply a standard of proof to anything other than a determination of fact. Many decisions are matters of judgment, about which all it can be said is that the court must be “satisfied”. The Jiang approach is not saved by this, because there the preconditions for admissibility are matters of fact, but one can more readily see that in balancing probative value against prejudicial effect the court is exercising its judgment. It will decide, for example, that the probative value of the evidence does outweigh the risk of improper prejudice that would arise from its admission. The trouble is, one can always ask, how sure of that are you?

In In re B (Children) [2008] UKHL 35 (11 June 2008) issues that overlapped those in In re Doherty were considered. Lord Hoffmann made it clear, para 2, that sometimes a legal rule requires a fact to be proved. Such a fact is called a fact in issue. Here, it was necessary to decide whether a child was “likely to suffer significant harm”, and this, as Baroness Hale (with whom all the other judges agreed) said, at para 22, is a prediction from existing facts. The issue was, to what standard did those existing facts have to be proved? These were, as Lord Hoffmann described them, facts in issue. The question was, what was the standard of proof of them “that is to say, the degree of persuasion which the tribunal must feel before it decides that the fact in issue did happen” (para 4). It was the balance of probabilities; there is only one civil standard of proof (para 13).

Lord Hoffmann carefully described the confusion that has occurred in the cases, and Lord Rodger and Lord Walker expressed their agreement (and also agreed with Baroness Hale). Essentially the confusion has concerned what Lord Nicholls meant in In re H (above) when he referred to heightened probabilities being required for proof of unlikely facts. Lord Hoffmann explained (para 12) that Lord Nicholls did not mean that where a serious allegation is in issue the standard of proof required is higher, notwithstanding that in R (McCann) v Crown Court at Manchester [2003] 1 AC 787, 812 Lord Steyn appears to have thought he did.

Baroness Hale laid to rest the misconception about what Lord Nichols had meant (para 64):

“My Lords, … Lord Nicholls' nuanced explanation left room for the nostrum, "the more serious the allegation, the more cogent the evidence needed to prove it", to take hold and be repeated time and time again in fact-finding hearings in care proceedings …. It is time for us to loosen its grip and give it its quietus.”

And concluded (para 70):

“… the standard of proof in finding the facts necessary to establish the threshold under [the relevant legislation here] is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.”

While the composition of the Appellate Committees in the two cases decided yesterday was different, with only Lord Scott being on both, there was obviously some discussion in the tea room. Lord Carswell’s assertion that the standard of balance of probabilities is finite and unvarying (in In re Doherty, para 28) is in harmony with Lord Hoffmann’s assertion that there is only one civil standard (In re B (Children) at para 13) and with Baroness Hale’s rejection of the idea that this standard can shift according to seriousness of the either the allegation or the consequences. In both cases there is support for the application of the criminal standard of proof in civil cases where the consequences of the finding of the fact in issue are particularly serious, but that would not be achieved by altering the level of proof required to satisfy the civil standard, and these cases did not call for application of the criminal standard.

The ECtHR has rejected the idea that stronger evidence is required to meet a specific standard of proof where the issue is serious: Saadi v Italy [2008] ECtHR 179 at 140.

Book Review: Scalia and Garner, “Making your case” (2008)

Following a suggestion from my online book retailer’s computer, I bought “Making Your Case: The Art of Persuading Judges” by Antonin Scalia and Bryan Garner.

Both authors know their own minds, have strong opinions, and expect to be obeyed. And rightly so, at least in the field covered by this short and highly readable book which is mainly directed at appellate proceedings. Its advice on persuasion is also useful to trial lawyers. The 115 points in numbered paragraphs cover general principles of argumentation, legal reasoning, preparation of the documents, and presentation of oral argument.

On a few points the authors make no secret of their disagreement with each other. Here they are like Sumo wrestling Denny Cranes. Garner is OK with contractions (you can write can’t instead of cannot) but Scalia isn’t. Garner thinks that “he” can never mean “he or she”, whereas Scalia thinks it can. Garner thinks that footnotes should contain only a bare minimum of information, whereas Scalia wouldn’t go that far but would agree that they shouldn’t contain new arguments. Garner thinks citations should be relegated to footnotes, whereas Scalia prefers not to change established practice (although he would support avoiding breaking up with citations sentences that could be rewritten to place those citations at their ends).

Learning to write and speak correctly is important. There is a correct way to write. Grammar does matter. Words have precise meanings. (Despite current trends in usage, “begging” the question does not mean “raising” the question or “ignoring” the question, it means circular reasoning – assuming as true the very thing in dispute.) What you read will affect how you write, so read well. Throughout this book there are inset quotations, and the relevant one here (para 29) is from the Rt Hon Lord Birkett, “Cultivate the love of words …”.

Emotional restraint is essential: judges heartily dislike antagonism (para 19). Sound advice for advocates, but apparently not applicable to the current judges of the Supreme Court of the United States (including Scalia himself) whose occasional petulant cat-fighting at least helps to keep readers amused.

Every barrister would find this book useful. And no, you can't borrow my copy.

The taint of impropriety

When does official impropriety cease to taint the subsequent obtaining of evidence? In particular, when does an improperly obtained statement taint the subsequent obtaining of another statement about the same matter? This was the topic under consideration in R v Wittwer [2008] SCC 33 (5 June 2008).

The Supreme Court of Canada did not here need to make any new law: this case simply required an application of the principles that have been recognised: it is not necessary that there be a causal link between the improperly obtained evidence and the challenged evidence, but any one or more of the following sorts of connection is sufficient to taint the challenged evidence: a causal connection, a temporal connection, or a contextual connection.

“21. In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: R. v. Strachan 1988 CanLII 25 (S.C.C.), [1988] 2 S.C.R. 980 at p. 1005. The required connection between the breach and the subsequent statement may be “temporal, contextual, causal or a combination of the three”: R. v. Plaha 2004 CanLII 21043 (ON C.A.), (2004), 189 O.A.C. 376, at para. 45. A connection that is merely “remote” or “tenuous” will not suffice: R. v. Goldhart, 1996 CanLII 214 (S.C.C.), [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45.”

Here, the accused had been interviewed three times. The first interview was improperly conducted in that the accused was not informed of his right to legal advice. The second interview, conducted immediately afterwards once the police realised their error, was improperly conducted in that although the accused was advised of his right to counsel, no opportunity to exercise it was given (also, the interview was not videotaped and the audio tape was of poor quality). The police realised that these two interviews were of doubtful admissibility – and indeed at trial the prosecution did not seek to adduce them against the accused – so a third interview was conducted. The accused was given an opportunity to obtain legal advice but he did not wish to do so, and he refused to answer questions, simply referring the officer to the constable to whom he had spoken first. After more than four hours of this refusal to answer questions, the officer decided he could only break the impasse by speaking to the first interviewing officer. After this was done, the accused gave the statement the admissibility of which was now challenged.

I can imagine that some courts would look at this broadly, saying that the failure to advise the accused of his right to legal advice in the first interview (and the failure to facilitate the obtaining of such advice in the second) did not matter, because, as it turned out, the accused did not want to speak to a lawyer. That would be to improperly impose waiver on the accused, because to be effective waiver must be informed and freely given and here it was not informed at the time of the breach. Would the waiver argument be stronger if the accused had said, when told of his right to legal advice in the second and third interviews, “Yes, I know all about my rights to get legal advice before I talk to you, but I don’t want to speak to a lawyer”?

In this case there were three connections between the impropriety and the obtaining of the challenged evidence: there was a temporal connection (the accused had immediately started to answer questions after the officer had returned from – apparently - speaking to the first interviewer), a causal connection (the more than four hours of resistance to answering questions was overcome), and a contextual connection (the gap between the improperly obtained evidence and the challenged evidence was bridged by the interviewing officer’s association of the two statements in the third interview).

Therefore, the challenged evidence was tainted by breach of the Charter right, and the Court, in a unanimous judgment delivered by Fish J, was satisfied that admission of the evidence would bring the administration of justice into disrepute. A new trial was ordered.

The determination of when impropriety extends to the obtaining of subsequent evidence is sometimes addressed as a question of whether the impropriety has sufficiently attenuated so as to not taint the subsequent evidence. Causal analysis may be used here, but, as this case illustrates, causation is not the only consideration.

Deference?

Should the idea that appellate courts owe deference to lower courts in some areas apply to sentencing? I think not, but the Supreme Court of Canada (with only Fish J dissenting) has held that it does: R v LM [2008] SCC 31 (29 May 2008).

Deference, when accorded by a higher court to a lower court, is an acknowledgement that the lower court is better placed to decide the point. It is often – indeed, usually – applied to determinations of questions of fact: if a judge has seen and heard the witnesses, an appellate court will be slow to depart from the findings of credibility and of fact made by that judge. There may be times when it can be shown that the judge drew inferences that were not justified, or that there was insufficient evidence to support the findings of fact, but generally the deferential approach is appropriate.

Sentencing is a process that applies once facts have been found. The judge can set out the facts and an appellate court can give the judge due deference on those. But that should be the extent of deference. Deference should not apply to the sentencing judge’s perception of how serious the particular offending is in the context of other cases, and of what weight to give matters of aggravation and mitigation. This is why appellate courts lay down a process of reasoning for sentencing judges to follow: fix a starting point taking into account the seriousness of the overall offending, including matters that aggravate or mitigate that seriousness, having regard to decided cases and the purposes and principles that statute requires to be considered, and then take into account matters personal to the particular offender, to increase or decrease the final sentence that is imposed, again with guidance from decided cases. This method helps to promote consistency, while at the same time it recognises that identical cases will be unlikely to occur. It also enables an appellate court to identify errors of principle and unreasonable assessments of the appropriate sentence. It is inaccurate (notwithstanding dicta to the contrary) to describe the sentencing judge as exercising a wide discretion if that is taken to mean that an appellate court will not be alert to identify errors: the judge’s choices must be made according to law.

But in LM the majority claimed to be endorsing deference:

“35 This exercise of ensuring that sentences are similar could not be given priority over the principle of deference to the trial judge’s exercise of discretion, since the sentence was not vitiated by an error in principle and the trial judge had not imposed a sentence that was clearly unreasonable by failing to give adequate consideration to certain factors or by improperly assessing the evidence ….”

Perhaps, however, the position is not as bad as this “deference” might suggest, because there is a non sequitur here: the appellate court does not defer when deciding whether the trial judge was wrong in principle, or whether the sentence was clearly unreasonable, so the appellate court is in reality giving priority to the exercise of ensuring that sentences are similar, while saying here that it isn’t.

To give deference to an exercise of discretion, while at the same time checking that it is not in error in principle or unreasonable, is a very artificial sort of deference. Fish J (agreeing on everything except the deference point) pointed to the function of the court of first appeal:

“69 Courts of Appeal are indeed bound to recognize that trial courts enjoy a broad discretion in sentencing matters. But they are required to intervene where the sentence imposed at trial is shown to be unfit, within the meaning of the decided cases. And in reviewing their decisions on a recognized ground, we should remain mindful that provincial Courts of Appeal are endowed in sentencing matters with a supervisory jurisdiction that this Court is not meant to share. As Lamer C.J. put it in M. (C.A.) 1996 CanLII 230 (S.C.C.), [1996] 1 S.C.R. 500, at para. 92: “Appellate courts . . . serve an important function in reviewing and minimizing the disparity of sentences imposed by sentencing judges for similar offenders and similar offences committed throughout Canada.””

He had also held,

“64. Parliament has now recognized in s. 718.2(b) of the Criminal Code that parity is a principle that trial judges must consider in determining a fit sentence. Failure to do so adequately thus amounts in itself to a reviewable error in principle: appellate intervention does not depend, in my respectful view, on the existence of an additional error in principle as well.”

The Supreme Court did not explore in detail the Quebec Court of Appeal’s treatment of the facts, where it apparently found some reason to materially differ from the trial judge’s findings. That difference was the reason the majority in the Court of Appeal would have reduced the sentence in this case. The Supreme Court’s approach, emphasising deference, leaves unresolved the issue of whether the trial judge’s findings of fact were supported by the evidence.

The case does make some other points: a maximum sentence is not reserved for only the most serious cases imaginable, and the post-imprisonment period on supervised parole is not relevant to determination of the duration of the relevant sentence of imprisonment.

Laundering: proceeds and purpose

Another exercise in statutory interpretation involving the proceeds of crime and money laundering (I have noted the three House of Lords decisions on this last month: see R v May, R v Green, and Crown Prosecution Service v Jennings, all blogged 16 May 2008) is United States v Santos [2008] USSC No06-1005, 2 June 2008.

In Santos the issue was whether, in the context of the particular statute in question, “proceeds” means “profits”. The majority held that yes, here it does. This was so in the absence of a legislative history (or context) suggesting otherwise. Each possible meaning of “proceeds” was equally possible in the legislation, and the rule of lenity – that in such a situation the meaning most favourable to the accused should be preferred – applied. Justice Scalia, for the majority, wrote:

“Under either of the word’s ordinary definitions, all provisions of the federal money-laundering statute are coherent; no provisions are redundant; and the statute is not rendered utterly absurd. From the face of the statute, there is no more reason to think that “proceeds” means “receipts” than there is to think that “proceeds” means “profits.” Under a long line of our decisions, the tie must go to the defendant. The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them. See United States v. Gradwell, 243 U. S. 476, 485 (1917); McBoyle v. United States, 283 U. S. 25, 27 (1931); United States v. Bass, 404 U. S. 336, 347– 349 (1971). This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress’s stead. Because the “profits” definition of “proceeds” is always more defendant-friendly than the “receipts” definition, the rule of lenity dictates that it should be adopted.”

The Act considered here pre-dated other money laundering legislation, not applicable to the present case, in which “proceeds” is defined as being gross proceeds, consistently with international treaty obligations.

Cynical defence lawyers might be inclined to think that the courts do everything possible, these days, to avoid having to apply this rule of lenity by using a purposive interpretation as a means of refusing to acknowledge statutory ambiguity.

In another decision on money laundering, Cuellar v US [2008] USSC No 06-1456 (2 June 2008) the Supreme Court held that the prosecution had failed to adduce evidence of one of the elements of the offence charged. This was a form of laundering involving the transportation of the money. The offence requires proof of both the fact of transportation (about which there was no issue on this appeal) and that the accused’s purpose was to conceal the money. On the latter there was no proof of purpose in this case and the conviction could not stand.

Cuellar is simply an analysis of the elements of an offence and an examination of the adequacy of proof. It is quite likely that the corresponding legislation in other jurisdictions will allow the same point to be made. For example, in New Zealand we have definitions of “dealing” with property that include transporting it in the sense used in Cuellar, namely taking it across a border (Crimes Act 1961, s 243(1); Misuse of Drugs Act 1975, s 12B(1)), and laundering requires a purpose of concealment (s 243(4) and s 12B(4)). “Conceal” is also defined in the same sections, and this definition includes “to conceal or disguise the location” of the money. At first glance, it looks as if the accused in Cuellar was doing this: he drove towards the Mexican border with money concealed in his vehicle. But, as Thomas J, delivering the Court’s decision, wrote:

““There is a difference between concealing something to transport it, and transporting something to conceal it,” (478 F 3d 471 at 296-297 Smith, J., dissenting [in the Fifth Circuit’s rehearing en banc of the appeal in the present case]); that is, how one moves the money is distinct from why one moves the money. Evidence of the former, standing alone, is not sufficient to prove the latter.”

The weakness of the evidence was significant to the result in this case: there was insufficient to support an inference that the accused transported the money intending thereby to conceal it.

The basics

Instructions given by judges to juries on how to approach issues of credibility in the context of the burden and standard of proof are often the subject of appeals against conviction. This occurred in R v JHS [2008] SCC 30 (29 May 2008).

In Canada the leading case on what instructions are appropriate (generally, but always adaptable to the circumstances of a given case, so they are not in that sense mandatory) is R v W(D) [1991] 1 SCR 742 SCC, at 757-758:

“A trial judge might well instruct the jury on the question of credibility along these lines:
“First, if you believe the evidence of the accused, obviously you must acquit.
“Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
“Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”
…
“Nonetheless, the failure to use such language is not fatal if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply . . . .”

The appellate court approaches the adequacy of a challenged instruction by reading the judge’s remarks as a whole, to ascertain whether the jury could have been left in a misapprehension as to the correct burden and standard of proof to apply.

In the circumstances in this appeal, the Supreme Court held that the judge’s directions had not misled the jury, and the appeal against the Nova Scotia Court of Appeal’s quashing of the conviction was allowed.

This case reminds me of two issues currently before the public in New Zealand: should the prosecution be able to appeal against a quashing of a conviction (or, indeed, against a jury verdict of not guilty); and, do juries, and the public, properly understand the burden and standard of proof in criminal cases?

Prosecution appeals
The kind of appeal to the ultimate appellate court that occurred in R v JHS could not have been brought in New Zealand. If the (first) Court of Appeal quashes a conviction, it may order a re-trial, but otherwise the quashing is final. There is no prosecution right of appeal to the Supreme Court against a refusal of the Court of Appeal to order a new trial.

The only way the prosecution can contest an acquittal is where a question of law was reserved by the trial judge for the opinion of the Court of Appeal. Either side may ask for such a question to be reserved, and if the judge refuses to reserve a question, either side may apply to the Court of Appeal for leave to appeal against that refusal. Only the convicted person may seek leave to appeal to the Supreme Court from the Court of Appeal’s decision on a question of law; the prosecution is limited (in this context) to appeals to the Supreme Court on sentencing matters.

This structure reflects the law’s recognition of the finality of a verdict of not guilty. Essentially, this is a policy recognition of the imbalance in resources available to a person who is accused of a crime, and of the risk of oppression that repeated prosecutions would bring. There is some retreat from this position, for example in the United Kingdom, where acquittals for some serious offences may not be final (see Criminal Justice Act 2003[UK], Part 10). Currently in New Zealand the Criminal Procedure Bill proposes to permit retrial after an acquittal for an offence carrying a maximum penalty of 14 or more years’ imprisonment if that acquittal is tainted by the commission of an offence against the administration of justice, and if a judge of the High Court considers that a retrial is in the interests of justice. This Bill is currently stalled as the National Party (the main opposition party) refuses to support another of its reforms, the abolition in most cases of preliminary (deposition) hearings. The proposed permitting of retrial after acquittal does not appear to have attracted as much controversy in the legislature.

The tripartite direction and the burden and standard of proof
The equivalent of the Canadian R v W(D) instruction in New Zealand is the so-called tripartite direction. An illustration is R v Turner [2007] NZCA 427, where the Court did not criticise the trial judge’s instruction which had been in these terms, addressing the three possible effects of an accused’s evidence:

“The first is that a jury accepts entirely the important parts of his evidence and where that happens and if it happens here then obviously you are going to find this accused not guilty without hesitation. If you accept that this young lady initiated the sexual activity, became angry about some extraneous matter afterwards and has made up these allegations then of course he is not guilty.

“The second possibility is that the accused’s evidence might cause you reasonable doubts about the things the Crown has to prove. Again, if you are in reasonable doubts about what the Crown has to prove after hearing from the accused, then he is entitled to be found not guilty.

“There is a third possibility about which you have to be careful. If you do not accept the evidence of the accused about the material parts of these events, that does not automatically mean he is guilty. Put the unacceptable evidence to one side. Remind yourself who has got to do the proving. Go back to the evidence of the complainant and ask yourself whether it satisfies you beyond reasonable doubt that her allegations are true.”

This direction is not mandatory. Where an accused has not given evidence in court but has made a statement to the police which is given in evidence, the tripartite direction may not be considered appropriate. In R v Martin [2007] NZCA 386 a more appropriate direction for this situation was:

“Statements made and interviews given by the accused to the police and to customs officers are not sworn evidence in the witness box, but they are part of the material for you to consider. What you make of the truthfulness, accuracy and weight of those statements made by the accused is for you to decide. In the same way that you may accept parts of what a witness said in evidence, and not accept other parts, you may accept parts of what was said in statements and not other parts.”

That has to be accompanied, of course, by a proper direction on the burden and standard of proof. This point was emphasised in R v Sturgeon 10/11/06, CA364/05:

“[18] It is necessary to look at the summing-up as a whole, because the real issue is whether there is any reasonable possibility that the jury might have misunderstood where the burden of proof lay.”

I have noted previously, in connection with R v Wanhalla (blogged here 25 August 2006), that the Court of Appeal does not require that the standard of proof be explained in terms of numerical probabilities, and nor is it considered desirable to invite the jurors to liken it to personal decisions they may have to make about very important matters in their own lives. (For discussion of the need to explain beyond reasonable doubt in probabilistic terms, see the article by Tillers and Gottfried, in Law Probability and Risk (2006) 5 135-157, and comments at 159 and 167.) Understandably, there is considerable difference of opinion about what “proved beyond reasonable doubt” means. Not only are there differences in perceptions of the appropriate level of proof, but there also appears to be widespread lack of understanding about what an acquittal means. Currently there is a great deal of discussion in New Zealand about acquittals in some high-profile cases. It is not unusual to hear comments such as “he was proved to be innocent” and “the police should now try to find the real offender”.

One such high-profile case involved a father accused of killing his twin babies. The defence at trial was that it was reasonably possible that the accused was not the killer but that the twins’ mother was. After the father’s acquittal, there were calls for the police to continue their investigation (nothing wrong with that) and, in the words of one commentator (NZ Herald Thurs May 29, Opinion column),

“If she faced a trial, [the mother] might ultimately be found not guilty beyond reasonable doubt. That is not the point; that is our system. On the evidence available, she should at least be put before the court to let another jury decide.”

These phrases “be found not guilty beyond reasonable doubt … that is our system” betray this misconception. Sad to say, that comment was made by a barrister. It’s just sloppy language, of course: he would instantly accept his error if it were to be pointed out to him. Judges too are inclined to fall into such traps.

The limits of comity

In Canada (Justice) v Khadr [2008] SCC 28 (23 May 2008) s 7 of the Canadian Charter of Rights and Freedoms was applied extra-territorially. This was possible because Canadian officials had participated in a procedure in the detention centre at Guantanamo Bay that violated Canada’s obligations at international law. This participation occurred when copies of interviews that the Canadian officials had conducted at Guantanamo Bay with Mr Khadr, a detainee, were handed over to the US authorities. The violation of fundamental human rights protected by international law, arising from the procedures then in force at Guantanamo Bay, was held to have occurred on the basis of the procedural failings recognised by the United States Supreme Court in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (blogged here 30 June 2006).

“26. … The effect of the United States Supreme Court’s holdings is that the conditions under which Mr. Khadr was held and was liable for prosecution were illegal under both U.S. and international law at the time Canadian officials interviewed Mr. Khadr and gave the information to U.S. authorities. Hence no question of deference to foreign law arises. The Charter bound Canada to the extent that the conduct of Canadian officials involved it in a process that violated Canada’s international obligations.”

Section 7 of the Charter provides:

“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Here, fundamental justice required that Mr Khadr be given, to facilitate his defence to charges that were to be tried at Guantanamo Bay, copies of certain interviews. This was analogous to, but not the same as, the disclosure obligation that would arise in a domestic prosecution. The difference here is that the Canadian authorities were not prosecutors:

“32. … The scope of the disclosure obligation in this context is defined by the nature of Canada’s participation in the foreign process. The crux of that participation was providing information to U.S. authorities in relation to a process which is contrary to Canada’s international human rights obligations. Thus, the scope of the disclosure obligation must be related to the information provided to U.S. authorities.”

The extent of this disclosure requirement was to be determined in accordance with s 38.06 of the Canada Evidence Act, which involves a judicial oversight procedure to protect security and public policy considerations.

It is clear that even if the US SC had held the Guantanamo Bay procedures to be legitimate, the SCC would not have been obliged to agree: para 25.

This case distinguished the facts of R. v. Hape, 2007 SCC 26 (CanLII), [2007] 2 S.C.R. 292, 2007 SCC 26 (blogged here 11 June 2007), and applied dicta in that case on the limits of comity:

“ 18. … comity cannot be used to justify Canadian participation in activities of a foreign state or its agents that are contrary to Canada’s international obligations. It was held that the deference required by the principle of comity “ends where clear violations of international law and fundamental human rights begin” (Hape, at paras. 51, 52 and 101, per LeBel J.). The Court further held that in interpreting the scope and application of the Charter, the courts should seek to ensure compliance with Canada’s binding obligations under international law (para. 56, per LeBel J.).”

On the question of the material that should be disclosed here, while that was left to the designated judge to determine, the SCC observed that confining it to the interviews that had been given to the US authorities may not be sufficient for the conduct of Mr Khadr’s defence:

“34. … disclosure of an inculpatory statement shared with the U.S. authorities might require disclosure of an exculpatory statement not shared to permit Mr. Khadr to know his jeopardy and prepare his defence. It would seem to follow that fairness requires disclosure of all records in any form of the interviews themselves — whether or not passed on to U.S. authorities — including any transcripts, recordings or summaries in Canada’s possession. For similar reasons, it would seem to follow that Mr. Khadr is entitled to disclosure of information given to U.S. authorities as a direct consequence of Canada’s having interviewed him.”

[Update: the Court does not have jurisdiction to compel the government to order Mr Khadr's return to Canada: Canada (Prime Minister) v Khadr [2010] SCC 3 (29 January 2010).]

Preventing statutory unfairness

It may sometimes be unjust for the courts to wait for the legislature to extend the law to fully achieve its purpose. A stay of proceedings can be a means of avoiding an injustice that the legislature, had it considered the position, would itself have sought to avoid.

In R v Asfaw [2008] UKHL 31 (21 May 2008) the majority (Lords Bingham, Hope and Carswell) applied the stay of proceedings route to avoiding an injustice. The dissenters, Lords Rodger and Mance, would on ordinary principles of statutory interpretation have upheld the conviction.

Broadly, the appellant was a refugee who, in the course of escaping from Ethiopia, entered the UK at Heathrow and, while at the airport, used a false passport to try to board a flight to Washington DC. She was charged with two counts: using the false passport, and attempting to obtain air services by deception. The first charge carried a defence pursuant to legislation protecting refugees, while the second was not listed with the offences to which that defence was available.

Both charges arose from the same facts. Lord Bingham was concerned about the purpose of prosecuting the appellant for the second:

“31. The appellant … submitted that it was an abuse of the criminal process to prosecute her to conviction under count 2. That submission calls for closer consideration. It was not an abuse to prefer charges under both counts, since the respondent was entitled to question whether the appellant was a refugee, and if she was not neither the article nor the section could avail her. It is true that the two counts related to identical conduct and the second count served no obvious purpose, but the court could ensure, on conviction, that no disproportionate penalty was inflicted. If, however, the second count was included in the indictment in order to prevent the appellant from relying on the defence which section 31 would otherwise provide, I would share the Court of Appeal's view (para 24) that there would be strong grounds for contending that this was an abuse of process. It is not at all clear what legitimate purpose was sought to be served by including the second count, and it must be questioned whether there was any legitimate purpose.”

Section 31 of the Immigration and Asylum Act 1999[UK] provides for the relevant defence for refugees. The appellant had been acquitted on count 1, pursuant to this section, so there was no doubt that she was a refugee. Lord Bingham continued:

“32. … if [as they did] the jury were to acquit the appellant on count 1 in reliance on section 31, it would be both unfair and contrary to the intention of the statute to convict her on count 2. The Attorney General expressly recognised that additional offences might have to be added to section 31(3), and when such offences, requiring addition to the list, arose in individual cases it would plainly be necessary to avoid injustice in those cases. There was in my opinion a clear risk of injustice in this case if the jury were to acquit on count 1 but convict on count 2.”

But,

“33 … If the jury convicted the appellant on count 1, rejecting her section 31 defence, there would have been no objection in principle to further prosecution of count 2. But the appellant would be likely in that situation to have pleaded guilty (as she did in response to the judge's ruling), and the question would arise whether further prosecution of count 2 could be justified: given that the judge had power to sentence the appellant to imprisonment for 10 years on count 1, it could scarcely be suggested that his powers of punishment were inadequate to reflect the appellant's culpability.”

Lord Hope agreed (para 69), calling the omission of the count 2 offence from the offences to which the relevant defence applied an “oversight” (para 67).

The dissenters interpreted the legislation as requiring the appellant to present herself to the UK authorities and to obtain valid travel documents if she wished to travel on to the United States, so both charges were justified. There was, on this view, no need to address the need for a remedy. On the majority approach, the appellant had still been fleeing from persecution when she was at Heathrow. The difference between the conclusions of the Law Lords here may not have occurred without this difference in perception of her situation.

The majority approach is an illustration of how injustice that would arise from a literal reading – and indeed from an ordinary and reasonable reading - of legislation can be avoided by a stay of proceedings at an appropriate time. This could not be taken as an illustration of the court refusing to enforce a statute, but it is a case where the unfair consequences of application of a statute were rejected and avoided by the court’s inherent power to prevent an abuse of process.

Multiplying the Crown's benefit from crime

Depriving an offender of the benefit he obtained from his offending was the subject of three related House of Lords decisions this week: R v May [2008] UKHL 28, R v Green [2008] UKHL 30, and Crown Prosecution Service v Jennings [2008] UKHL 29 (all 14 May 2008).

The leading decision is May, where broad principles were stated for the interpretation of the relevant legislation, the Proceeds of Crime Act 2002[UK] (para 48):

“(1) The legislation is intended to deprive defendants of the benefit they have gained from relevant criminal conduct, whether or not they have retained such benefit, within the limits of their available means. It does not provide for confiscation in the sense understood by schoolchildren and others, but nor does it operate by way of fine. The benefit gained is the total value of the property or advantage obtained, not the defendant's net profit after deduction of expenses or any amounts payable to co-conspirators.

“(2) The court should proceed by asking the three questions posed above: (i) Has the defendant (D) benefited from relevant criminal conduct? (ii) If so, what is the value of the benefit D has so obtained? (iii) What sum is recoverable from D? Where issues of criminal life style arise the questions must be modified. These are separate questions calling for separate answers, and the questions and answers must not be elided.

“(3) In addressing these questions the court must first establish the facts as best it can on the material available, relying as appropriate on the statutory assumptions. In very many cases the factual findings made will be decisive.

“(4) In addressing the questions the court should focus very closely on the language of the statutory provision in question in the context of the statute and in the light of any statutory definition. The language used is not arcane or obscure and any judicial gloss or exegesis should be viewed with caution. Guidance should ordinarily be sought in the statutory language rather than in the proliferating case law.

“(5) In determining, under the Proceeds of Crime Act 2002, whether D has obtained property or a pecuniary advantage and, if so, the value of any property or advantage so obtained, the court should (subject to any relevant statutory definition) apply ordinary common law principles to the facts as found. The exercise of this jurisdiction involves no departure from familiar rules governing entitlement and ownership. While the answering of the third question calls for inquiry into the financial resources of D at the date of the determination, the answering of the first two questions plainly calls for a historical inquiry into past transactions.

“(6) D ordinarily obtains property if in law he owns it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else. He ordinarily obtains a pecuniary advantage if (among other things) he evades a liability to which he is personally subject. Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property. It may be otherwise with money launderers.”

The results were that the Crown may obtain orders for confiscation of benefits that exceed the total benefits derived by the offenders from the crime they jointly committed. This is because each offender may – on appropriate facts - be treated as having joint ownership of the proceeds. To “benefit” from crime means to obtain property so as to own it, whether alone or jointly, which ordinarily connotes a power of disposition or control.

In submissions in Green there was some reference to what was argued to be a different approach in Australia, Canada and New Zealand. There was no decision on whether there was indeed such a difference (I suggest not, in NZ), but the House of Lords held that even if there were a difference, legislation in other countries would not assist in interpreting the meaning of the statute in question.

On being unable to communicate with one's self

Perceptions of trial fairness may depend on what is known about the accused’s mental condition. An appellate court that does not know that the accused was suffering, while on trial, from a mental disorder that made him incapable of adequately communicating with his counsel, may assess the record of the trial and conclude that the trial was fair. Another appellate court, armed with fuller information about the accused’s mental condition, may assess the same trial as having been unfair. Such unfairness would arise, not from the course of the trial, but from the unfairness of making a person under mental disability stand trial.

This occurred in Cumming v R [2008] NZSC 39 (15 May 2008). The Supreme Court concluded (para 21):

“It is very clear to us that by reason of mental disorder Mr Cumming was under a disability or, in terms of the present legislation, unfit to stand trial. For that reason there has been a substantial miscarriage of justice. The appeal must therefore be allowed.”

The Court did not refer to, and in particular did not criticise, the Court of Appeal’s assessment of the trial as being fair: [2005] NZCA 260. That Court had summarised its view of the trial as (para 67):

“The reality of this case is demonstrated by the defence the appellant did conduct at the trial. He did understand what he had to do and he put his defence in a way which left the jury able to make fair assessments of the complainant as a witness, and also of the appellant. The transcript shows that the appellant’s conduct of his defence had elements of confusion and other difficulties not unusual in litigants who represent themselves but no more than that. There was a fair presentation of his defence to the jury so that no considerations arise of the kind addressed by the Supreme Court in Sungsuwan v R [2005] NZSC 57 at [48], [58] and [65] to [68].”

The accused had represented himself at trial, having dispensed with the services of a series of counsel. A psychiatric report, available to the Supreme Court but not to the courts below, concluded that

“As Mr Cumming was acting as his own counsel the impact of his mental disorder was even greater upon his functioning in court. Conducting a delusionally based defence and with obvious impairments in his ability to process information, make appropriate inquiries and respond to what was happening, Mr Cumming, as his own counsel, could be said to be unable to communicate adequately with himself. Essentially both defendant and counsel were mentally disordered in this situation.”

This case highlights the need for accurate psychiatric diagnoses at an early stage, and the need for review of those as a trial proceeds. The difficulty is that a person who is advancing, albeit in a confused and irritating way, a coherent defence, may easily be misdiagnosed as being fit to stand trial. A coherent defence may nevertheless be the product of delusion and mental disorder. This case establishes that a person on trial has the right to present a defence that is not the result of mental disorder, regardless of how rational it may appear to be.

Facts, fairness and the proviso

Once again the application of the proviso has come under the scrutiny of the High Court of Australia: Gassy v R [2008] HCA 18 (14 May 2008).

Previous efforts at clarification of when a miscarriage may be regarded as substantial have been noted here: see in particular Weiss v R (blogged 16 January 2006) and AK v Western Australia (blogged 27 March 2008), and there are others (see Index).

Before the appellate court can apply the proviso, and dismiss the appeal against conviction, it must be satisfied of two things: that the evidence properly admissible against the accused established guilt beyond reasonable doubt, and, if it did, that the trial was fair.

In Gassy, the three majority Judges differed in the routes they took to conclude that the proviso could not be applied here. Gummow and Hayne JJ jointly held that the evidence could not be regarded by an appellate as establishing guilt beyond reasonable doubt. Kirby J held that, although the evidence could well be held to establish guilt to that standard (I reflect here his Honour’s “cusp” remark, mentioned below), the trial was not fair.

Two miscarriages of justice were relied on by the appellant: the first, held not to be relevant because its result favoured the appellant, was refusal of the trial judge to permit the accused, who at all other times represented himself on the charge of murder, to have legal representation for the limited purpose of conducting a voir dire. The second was the “assistance” that the judge endeavoured to give the jury in overcoming an impasse after a lengthy period of deliberation. The supplementary directions lacked balance because they did not adequately mention the defence perspective on the relevant issues.

Interestingly, Gummow and Hayne JJ held that, although this supplementary direction was an error, the question of whether the evidence could be said on appeal to have proved guilt beyond reasonable doubt still had to be considered. This approach, reflected in para 31, is one of avoiding classifying some errors as “fundamental” (para 33). It was, on this view, necessary to examine what effect the error could have had on the outcome of the trial (para 34). These Judges, therefore, were not holding that the misdirection itself was unfair. They noted that the jury had, before the impugned supplementary directions, deliberated for more than a day and a half, and that therefore an appellate court would have to be careful before concluding that guilt had been proved beyond reasonable doubt (para 35). The inferences that the prosecution sought to persuade the jury to draw were not compelled by the evidence (para 37), and there should be a retrial.

Kirby J, agreeing in the result, reasoned that the evidence of guilt was (virtually) conclusive, but this was a case of trial unfairness and therefore the proviso could not be applied. He agreed (para 46-47) with Gummow and Hayne JJ that there had been miscarriages of justice in both the voir dire point (albeit that this was not determinative) and the supplementary direction point. But he held that the supplementary direction lacked impartiality (para 51) and that the question of the application of the proviso therefore arose (para 57). He did not consider that the miscarriage of justice here was one which involved “the presuppositions of a criminal trial” (para 61) - but at this point one must ask whether use of this classification is appropriate, notwithstanding the authority for it – and he proceeded to evaluate the strength of the evidence (para 69-91) and concluded that this case was “at the cusp”: a very powerful prosecution case. This should be read bearing in mind that, a retrial being ordered, it would be inappropriate for the appellate court to actually say it thought guilt had been established beyond reasonable doubt. However, it was clear form the events at trial that the impact of the supplementary direction on the jury was significant, as they returned the guilty verdict shortly afterwards.

Kirby J does not go so far as to say the proof of guilt was conclusive, and he acknowledges (para 99) that the jury had to make a number of factual judgments. The Judge’s assistance in the supplementary direction had, therefore, to be impartial and should have referred to the defence perspective more than it did. Kirby J summarised his approach by saying (para 105), after referring to the minority approach of Crennan and Kiefel JJ:

“…It is enough for me to say that I place the highest value on the principle of manifest judicial impartiality and neutrality. Those qualities were of cardinal importance given the impasse that the applicant's trial had reached. In the end, this case stands for the principle that, particularly in circumstances of jury disagreement after a long trial, the trial judge must balance "ways forward" that lead to conviction with a reminder of those that lead to the opposite outcome.”

But in remarks that indicate he considered the prosecution case strong enough to support the conviction, Kirby J concluded (para 106-107) by referring to dicta in Weiss and AK concerning fundamental trial defects (as found here) which prevent application of the proviso notwithstanding that the appellate court may consider guilt to have been proved.

It is unfortunate that the majority Judges differed in their approaches to the application of the proviso here. Gummow and Hayne JJ obscure the primary importance of the right to a fair trial by their treatment of the strength of the prosecution case, while Kirby J emphasises it.

Fifteen years of illegal trials?

For fifteen or so years the statutory procedure for empanelling juries in the British Virgin Islands has not been followed. In R v Clarke (blogged here 7 February 2008) a trial was held to be a nullity because an indictment had not been correctly signed. Was the British Virgin Islands problem more profound?

The Privy Council addressed this in DPP (Virgin Islands) v Penn (British Virgin Islands) [2008] UKPC 29 (8 May 2008).

Here, the Registrar of the Court had not maintained a list from which an array of jurors was summoned for jury service. From this array the trial jury (of nine) would be impanelled. Instead of maintaining the jury list, the list of registered voters was used. The qualifications for jurors and electors differed.

Constitutional lawyers will be thinking this was an opportunity for application of the “de facto doctrine”, or, more precisely, the doctrine which holds valid, in certain situations, the acts of officials who have not been lawfully appointed to office. This doctrine is particularly useful in revolutions and coups, where an illegal government purports to appoint officials to carry on the day to day business of the state. Although it was not necessary to apply this doctrine here, the Board did make reference to it in paras 22-23.

No, here the solution was arrived at by reasoning consistent with that used in Clarke: if the legislative intent was not that the consequences of a breach of the enacted procedure should be a nullity, then, as long as everything was done in good faith, the proceedings would not be invalid on that score:

“18. The modern tendency is no longer to seek to identify or distinguish between mandatory and directory acts, but the Board's judgment in [Montreal Street Railway Company v. Normandin [1917] AC 170] … underlines the need for careful examination of the relevant legislation, to ascertain the purpose of statutory procedures for the impanelling of an array and whether an intention should be attributed to the legislature that non-compliance with such procedures should render a jury trial a nullity, irrespective whether it may have occasioned potential unfairness or prejudice. The Board recognises the seriousness of a criminal charge and the particular vigilance that the courts will exert to maintain the fairness and integrity of criminal proceedings. But the Board considers that there is scope for the reasoning in the Montreal Railway case in a criminal context.”

These considerations come into play once there has been a trial at which no objection to the procedure in question was made. Had such an objection been made at trial, the judge may well have decided to quash the proceedings (para 33). But, where there is no reason to think that there had not been a fair trial, quashing would only be appropriate if that was the clear intention of the legislature.

Here, the legislation indicated a flexible approach was available to objections to the array at trial: s 24 of the Jury Act 1914 provides

“24. Every application, made at a sitting of the High Court, for the quashing of an array, shall be heard and determined by the presiding judge, and no array shall be quashed on the ground of any formal defect, or of any breach of any of the provisions of this Act, unless the presiding Judge is satisfied that it is expedient, on the merits and in the interests of justice, that the array should be quashed.”

The Board reasoned, para 35:

“Section 24 is not itself applicable on an appeal. It deals with applications to the presiding judge before whom the applicant is to be tried. But its flexible focus on the interests of justice assists to confirm the appropriate approach to the question which is in issue on the present appeal: whether the appellant's trial and conviction should be regarded as a nullity or set aside and a fresh trial ordered. There is no suggestion that the trial judge or jury were aware of the Registrar's default in his or her statutory duties. The Board does not accept that the Registrar's awareness of the default equates with awareness on the part of the judge or jury. There is no suggestion of any disadvantage or prejudice to the respondent by reason of the defects in process which occurred. Any jurors' register would have been very largely identical with the voters' list from which the array was in fact selected. There is no suggestion that the array was not taken from the voters' list in a manner which was comparably random to the way in which it should have been taken from a jurors' register. There is no suggestion that any of the nine jurors who eventually served at the trial did not meet the age and other qualifications in the Jury Act.”

The conclusion was that there was nothing in the legislative intent to require the trial that had occurred in these circumstances to be declared invalid.

Controlling the back-seat driver

Who makes the important technical decisions concerning the way a defence is to be run, the accused or counsel representing him?

In Gonzales v United States [2008] USSC No 06-11612 (12 May 2008) the plurality opinion, delivered by Kennedy J, contains the following observations (p 9):

“Giving the attorney control of trial management matters is a practical necessity. ‘The adversary process could not function effectively if every tactical decision required client approval.’ Taylor v. Illinois, 484 U. S. 400, 418 (1988). The presentation of a criminal defense can be a mystifying process even for well-informed laypersons. This is one of the reasons for the right to counsel. See Powell v. Alabama, 287 U. S. 45, 68–69 (1932); ABA Standards for Criminal Justice, Defense Function 4–5.2, Commentary, p. 202 (3d ed. 1993) (‘Many of the rights of an accused, including constitutional rights, are such that only trained experts can comprehend their full significance, and an explanation to any but the most sophisticated client would be futile’). Numerous choices affecting conduct of the trial, including the objections to make, the witnesses to call, and the arguments to advance, depend not only upon what is permissible under the rules of evidence and procedure but also upon tactical considerations of the moment and the larger strategic plan for the trial. These matters can be difficult to explain to a layperson; and to require in all instances that they be approved by the client could risk compromising the efficiencies and fairness that the trial process is designed to promote. In exercising professional judgment, moreover, the attorney draws upon the expertise and experience that members of the bar should bring to the trial process. In most instances the attorney will have a better understanding of the procedural choices than the client; or at least the law should so assume. See Jones v. Barnes, 463 U. S. 745, 751 (1983); see also Tollett v. Henderson, 411 U. S. 258, 267–268 (1973); cf. ABA Standards, supra, at 202 (‘Every experienced advocate can recall the disconcerting experience of trying to conduct the examination of a witness or follow opposing arguments or the judge’s charge while the client ‘plucks at the attorney’s sleeve’ offering gratuitous suggestions’). To hold that every instance of waiver re quires the personal consent of the client himself or herself would be impractical.”

That case concerned the jury examination and selection procedure, but obviously these remarks are of general application.

There will be times when, as defence counsel, one realises that the client would have a much better chance if only his instructions were different. There is, importantly, an obligation to follow the client’s instructions and not to create a defence where none would otherwise have arisen. Failure to conduct a defence in accordance with instructions can give rise to a substantial miscarriage of justice eg R v Irwin [1987] 1 WLR 902; [1987] 2 All ER 1085.

In Adams on Criminal Law the position is summarised, at CA385.13, as:

“Counsel’s obligation to conduct the trial according to the accused’s instructions carries with it an obligation to take instructions where matters arise as to which counsel’s current instructions do not extend: R v Kerr 11/4/00, CA504/99. The requirement does not extend to investigating in detail all possible defences so as to obtain the “informed consent” of the accused to the running of some alternative to that most open on the facts: R v Nicholson 8/10/98, CA439/97. Nor need counsel canvass with the accused all possible options, including those which are tactically unsound or depend on matters solely within the accused’s own knowledge: R v Momo 23/7/02, CA115/02. Counsel is not required to inform the accused that he or she has the right to insist on a particular course of action being taken: R v Hookway [2007] NZCA 567, at paras 19 and 23.

“The accused will not be bound by concessions made without authority by counsel during sentencing: R v Xie [2007] NZCA 571, at paras 6 and 7.”

"As I said before ..."

The most subtle and troublesome rules of the common law concern the use that may be made at trial of a witness’s own out of court statements. These may be consistent with the witness’s trial testimony, or inconsistent with it. In R v Dinardo [2008] SCC 24 (9 May 2008), an appeal which was allowed on other grounds, the trial had been by judge alone and the judge had misstated the law concerning the use that may be made of a complainant’s prior consistent statements.

The appeal was allowed on the grounds that insufficient reasons for his verdict were given by the judge, causing the accused to be deprived of his right to be told the reasons he was convicted (R v Gagnon, [2006] SCC 17), and of his right to meaningful appellate review (R v Sheppard, [2002] SCC 26).

However, it is the use of prior inconsistent statements that is of interest here. Such statements may be called “narrative evidence”. In a refreshingly unanimous decision, delivered by Charron J, the Court quoted, at para 37, McWilliams’ Canadian Criminal Evidence (4th ed. (loose-leaf)), at pp. 11-44 and 11-45:

“The challenge is to distinguish between “using narrative evidence for the impermissible purpose of ‘confirm[ing] the truthfulness of the sworn allegation’” and “using narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility”.

It is quite possible that there may be someone who is able to understand that distinction, but many more people will claim, falsely, to understand it. It is a distinction that has been dropped in New Zealand, where the law of evidence was recently reformed: Evidence Act 2006.

Under this reformed law, a witness’s out of court statements are not hearsay, and prior consistent statements are, in the limited circumstances in which they are admissible, evidence for the truth of their contents: s 35

In the USA (my thanks to Peter Tillers for this:) "Under the (US) Federal Rules of Evidence the default rule remains that out of court statements of testifying witnesses are hearsay. Under R 801(d)(1)(A) statements of testifying witness are "exempt" from the hearsay rule only if the statements were made under oath in certain proceedings. The other exemptions in subdivision (d) cover limited situations as well. This may not make sense but, for the moment, that's the law in the federal courts of the United States and in the courts of the most States of the United States. The Advisory Committee that drafted the Federal Rules of Evidence (in the late 1960s and early 1970s) proposed that all prior inconsistent statements of testifying witnesses be made exempt from the hearsay rule but Congress rejected this proposal by adding the words "and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition" to Rule 801(d)(1)(A). Even some prior consistent statements remain hearsay: some years back the US Supreme Court held that only those prior inconsistent statements that are offered to "rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive" are exempt from the hearsay rule and that prior consistent statements made after a motive for recent fabrication etc arose remain hearsay. See FRE 801(d)(1)(B). Moreover, even the Evidence Advisory Committee did not propose a blanket exemption for pretrial statements of testifying witness; as in current Rule 801, the remaining exemptions in Rule 801 pertain to (i) certain pretrial identifications and (ii) admissions (including vicarious admissions of various kinds) and statements of coconspirators. If these exemptions do not apply, the hearsay rule kicks in."

In Australia, where the uniform evidence provisions apply (Commonwealth, NSW, ACT, Tas, NI and soon, Vic), hearsay includes a witness’s out of court statements (eg, Evidence Act 1995 (C’th) s 59). However, as Jeremy Gans has reminded me, s 60 should render prior statements admissible as proof of their assertions; the High Court has complicated this a bit in Lee v R [1998] HCA 60, but broadly that’s it. In Queensland they are admissible for their truth too.

In the UK, pursuant to the Criminal Justice Act 2003, s 120(2), such prior statements are evidence of the truth of what they assert.


In 1991 the New Zealand Law Commission in Preliminary Paper No 15 Evidence Law: Hearsay, p 3 para 4 said of the distinction between using a prior statement as supporting credibility, and using it to determine what actually happened, “Explaining this to juries – and expecting them to follow the instruction – is one of the more difficult aspects of the hearsay rule.”

R v Dinardo illustrates that explaining the rule to judges – and expecting them to follow it - is difficult too.

Tainted by inadmissible evidence?

If a judge tells a jury to ignore certain prosecution evidence, does that mean the wrongly admitted evidence can’t be used as grounds for appeal against conviction?

In Young v The State (Trinidad and Tobago) [2008] UKPC 27 (6 May 2008) there was a confession and a dock identification, both being obstacles to acquittals on charges of kidnapping and robbery. However, in directing the jury, the judge told the jury to ignore the dock identification. That left the confession, which, after an unsuccessful voir dire, the accused in evidence to the jury said was made as a result of threats from the police and in any event was not true, and he called an alibi witness.

The Court of Appeal dismissed the appeal, holding that the direction to the jury to ignore the dock identification made the giving of that evidence a dead issue. The Privy Council disagreed with that approach: it was necessary carefully to consider the way the jury might address the reliability of the confession. It was possible, at least in theory (but not, as it turned out, here), that the effect of the dock identification, even if it was ignored as one route to conviction, might influence the assessment of the reliability of the confession.

In this case, the Board held that the judge’s warning to the jury was sufficient to prevent that possible misuse of the evidence. This was not a situation where a Turnbull direction would have been appropriate as it would have been “confusing and potentially misleading” (para 20). The accused had not been deprived of a fair trial.

The Board cited, inter alia, Pipersburgh v R (Belize) (blogged here 26 February 2008), but did not cite Edwards v R (Jamaica) (blogged here 26 April 2006) in which strong comments against dock identification had been made. The position seems to be (para 17 of Young):

“…The trial judge must give sufficient warnings about the dangers of identification without a parade and the potential advantage of an inconclusive parade to a defendant, and direct the jury with care about the weakness of a dock identification. Much may depend on the circumstances of the case, the other evidence given and the run of the trial, so that it is not possible to lay down a universal direction applicable to all cases.”

Gymnasium improprieties

Another case that got diverted to the irrelevant question of when the police can use sniffer dogs is R v AM [2008] SCC 19 (25 April 2008), in which the Court’s decision released the same day, R v Kang-Brown (see last blog), was applied.

Police officers carried out a search of a school with the permission of the headmaster who had given them a long-standing invitation to do so. There were no reasonable grounds to believe that drugs would be found on this particular day. The students were told by the headmaster to remain in their classrooms during the search. Using a sniffer dog called Chief, bags in the gymnasium were examined and Chief indicated that there were drugs in a particular backpack.

The admissibility of the evidence - variously described as 10 bags of marijuana (para22), 5 bags (para 109) or several bags (para 154), allegedly in possession for trafficking, and about 10 magic mushrooms, the subject of an allegation of possession simpliciter) – was determined by balancing various policy matters. These do not need to be discussed here, although they are of great public interest. It was held, in each of the courts in which this case was considered, that the evidence was inadmissible.

On the misconduct side of the balance, the only relevant point could be the absence of grounds for the search until the dog indicated the presence of the drugs. There is really no other impropriety: the police were on the premises at the invitation of the occupier who was undoubtedly in loco parentis, during school hours, in relation to the pupil whose bag was searched. There is no need for grounds to exist when a search is carried out by consent, so, on this view, there was no misconduct at all.

So, why did the SCC uphold the exclusion of the evidence? By finding that the Charter rights of every student in the school had been violated (para 15). And,

“62 The backpacks from which the odour emanated here belonged to various members of the student body including the accused. As with briefcases, purses and suitcases, backpacks are the repository of much that is personal, particularly for people who lead itinerant lifestyles during the day as in the case of students and travellers. No doubt ordinary businessmen and businesswomen riding along on public transit or going up and down on elevators in office towers would be outraged at any suggestion that the contents of their briefcases could randomly be inspected by the police without “reasonable suspicion” of illegality. Because of their role in the lives of students, backpacks objectively command a measure of privacy.

“63 As the accused did not testify, the question of whether or not he had a subjective expectation of privacy in his backpack must be inferred from the circumstances. While teenagers may have little expectation of privacy from the searching eyes and fingers of their parents, I think it obvious that they expect the contents of their backpacks not to be open to the random and speculative scrutiny of the police. This expectation is a reasonable one that society should support.”

These remarks are controversial, and they contrast with those of the dissenters, Deschamps and Rothstein JJ at 119, 128 – 140. The difference reflects how rights arguments can become too abstract to remain in touch with societal needs.

This is not to say that exclusion of different things found would always follow in cases that were, in other respects, similar. As Binnie J (delivering the judgment of himself and McLachlin CJ) observed at 37, the seriousness of the detected offending is a relevant consideration. Apparently, in this case, the risk posed to other pupils, and the likely consequences of detection to the offender, did not outweigh the harm that would be caused to the pupil by breach of what was held to be his privacy right in respect to the contents of his backpack.

Opinions will vary about whether the Court has successfully “bridged the gap between law and society” (as Aharon Barak puts the judicial role in “The Judge in a Democracy” (2006)) or whether it has increased that gap.

What a cute doggie!

In R v Kang-Brown [2008] SCC 18 (25 April 2008) the accused got off a bus and his behaviour caused an undercover police officer to suspect that he might have drugs in a bag he was carrying. There were no reasonable grounds to search him. The officer got him into conversation, then identified himself and asked if he would consent to a search of the bag. An initial appearance of consent changed when the officer went to reach into the bag, and Mr Kang-Brown pulled the bag away. The officer, as a result of this withdrawal of consent, called over a dog handler, and the dog indicated the presence of drugs in the bag. Seventeen ounces (0.476 kg) of cocaine was in the bag, and Mr Kang-Brown was charged with possession of it for trafficking.

Of course, one can summarise the facts of a case in various ways. There is a risk in casting them in the wrong light and departing from the findings in the court where they were determined (see per Bastarache J, dissenting at 202).

But the essentials are that there were no sufficient grounds for a lawful search at the time the decision was made to call the dog handler.

Some of the Judges in the Supreme Court of Canada wanted to change the law so that the grounds for a search in these circumstances would more easily exist. This was because the focus of the case was seen as the use of the sniffer dog (whose name is Chevy).

It is not inevitable that that should have been the focus of the case. There were elements of illegality to the search before the dog was involved: the absence of grounds and the (albeit brief) detention while the dog was brought over and put to work. In terms of the right not to be subjected to unreasonable search, this did amount to a breach. One would expect that to bring into play the balancing exercise necessary to determine the admissibility of the evidence. Surprisingly, the evidence of this relatively (compared to the breach of rights) serious offence was excluded by the majority McLachlin CJ, Binnie, LeBel, Fish, Abella and Charron JJ.

It is no surprise, given the nature of law, that this mundane incident, with its trivial breach of rights, was worked up into a huge legal controversy about the use of sniffer dogs in public places. The focus became the common law legality of search by sniffer dogs: should the Court decide this before Parliament does, and, if so, what grounds would make such searches lawful? Plainly, reasonable grounds to believe would be too high, as the use of the dog would be rendered superfluous and the search by the enforcement officer could proceed. Mere suspicion may seem too low, once one has decided (as all Judges here did) that the dog’s action in sniffing does amount to a search, although Bastarache J was prepared to come close to this with his proposal of a generalised suspicion as sufficient grounds. The solution, reasonable suspicion, was favoured by McLachlin CJ, Binnie, Deschamps and Rothstein JJ. This did not appeal to the other four judges (LeBel, giving the reasons of himself and Fish, Abella and Charron JJ), who did not think it appropriate to downgrade the reasonable and probable cause requirement (para 16).

The difficulties arise once one says that the use of the dog was a search. On the facts here it clearly was, because it was focused on the contents of a particular bag that, in effect, the police had seized. But it does not follow that routine sniffing around people at a transport hub amounts to search. Most people would think it was rather cute.

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.