More on standards of proof of preliminary facts

In Canada it is necessary that compliance with procedures for interviewing young people be established beyond reasonable doubt: R v LTH [2008] SCC 49 (11 September 2008). The various protections enacted in s 146(2) of the Youth Criminal Justice Act, SC 2002, c. 1 (which does not specify a standard of proof for compliance) are intended to ensure that statements made by young people are reliable (38), and proof of waiver of them is also required to be established beyond reasonable doubt (39).

The balance of probabilities is the standard applicable in New Zealand in respect of preliminary facts such as compliance with the right of a person charged with an offence to be brought as soon as possible before a court: R v Te Kira [1993] 3 NZLR 257, and compliance with the right of persons arrested or detained to consult and instruct a lawyer without delay: Police v Kohler [1993] 3 NZLR 129, and the same applies to young people: R v S (CA220/97) (1997) 15 CRNZ 214. There is some fudging of the standard, as it is called the balance of probabilities having regard to the gravity of the particular issue:

“The first issue is whether the Crown must prove the facts necessary to establish admissibility of a statement under s 221(2) [Children, Young Persons, and Their Families Act 1989] to the criminal standard of beyond reasonable doubt. In the High Court, Paterson J appears to have adopted this higher test, citing the judgment of Thorp J in R v Fitzgerald unreported, 30 October 1990, HC Auckland T183/90.

“Fitzgerald concerned compliance with the advice requirements of s 215(1)(f), which must be met before any questioning of a young person is undertaken. It was held that substantial compliance had to be proved to the criminal standard before a statement would be admitted. No argument appears to have been addressed to the issue of standard of proof. Since Fitzgerald this Court has held that in the analogous cases concerning alleged breaches of the New Zealand Bill of Rights Act 1990, the lower standard of proof, or balance of probabilities having regard to the gravity of the particular issue, is to be applied R v Te Kira ... Police v Kohler.... We see no good reason to elevate the test under this legislation [Children, Young Persons, and Their Families Act 1989,ss 221(2)(b), 222(4)], and to add a second exception to the ordinary rule governing incidental trial issues. Proof beyond reasonable doubt is therefore not required.”

We have noted recently the discussion by the Supreme Court of what relevance the gravity of the consequences has to the standard of proof when the standard is the balance of probabilities: Z v Dental Complaints Assessment Committee, blogged 25 July 2008.

There are good reasons to complain that the fudged balance of probabilities should be replaced by the standard of proof beyond reasonable doubt. Particularly so, because in Kohler Cooke P (as he then was), delivering the decision of the Court of Appeal, said:

“The question of the standard of proof required of the prosecution to establish a waiver was raised in argument. Some American and Canadian judgments speak of a "heavy burden'', a "high standard of proof'', a "very high standard''. See for example Miranda at p 475; Moran v Burbine 475 US 412, 439, n 9, 450-452 (1986); and R v Manninen (1987) 34 CCC (3d) 385, 393. In Te Kira this Court determined that, for questions of fact concerning alleged Bill of Rights breaches, once the situation is such that the onus falls on the prosecution to negative a breach, the appropriate standard is the balance of probabilities but with the gravity of the issue borne in mind. We doubt whether in practice this will lead to results different from those that would be reached in Canada and the US. The Te Kira standard should apply on the issue of waiver as well as on other factual issues under the Bill of Rights Act. As already mentioned, the prosecution must fail by that standard here.”

If the results are not going to be different, what is the problem with requiring proof beyond reasonable doubt?

Well, in NZ the position is determined by the Evidence Act 2006, which was drafted in the light – if that's the right word – of the authorities mentioned above. The Act specifies – with the unduly fussy particularity that is currently regarded as good draftsmanship – that a finding that evidence was obtained improperly is to be made on the balance of probabilities: s 30(2)(a).

I can't help wondering whether Lord Cooke would have agreed with the decision of the House of Lords in In re B (blogged here 12 June 2008). I think he would have, and in doing so he would have revised the approach he took in Kohler, above. My current take on this is that the Evidence Act 2006 impedes progress on this point, as has the majority decision in Z, above.

This is not to say that all preliminary facts (those which must be established before other evidence becomes admissible) should be proved to the standard beyond reasonable doubt. There is nothing illogical in requiring the balance of probabilities for these, even where the ultimate issue (guilt) must be proved beyond reasonable doubt. The criteria for admissibility are separate from the criteria for proof of guilt. The choice of standard for proof of preliminary facts is a matter of policy, and in the present context it reflects the importance that the court attaches to compliance with the rights of the accused. In Kohler, above, the Court did not discuss the competing policies or give extended reasons for its choice. Similarly, in R v S, above, the Court simply saw “no good reason” for applying the standard of beyond reasonable doubt, again without policy analysis. Even the Privy Council has decided the issue without extended policy analysis: Smith v R (Jamaica) [2008] UKPC (blogged here 27 June 2008), applying the criminal standard. The reasons for the choice are a mystery.

I say “even” the Privy Council, because the Law Lords, who write their opinions without the assistance of law clerks, are least likely to use a style redolent of the honours dissertation. Posner, in “How Judges Think” (2008), makes this interesting observation (p 221):

“Students are taught to approach judicial opinions as if every word were written by the nominal author – that is, the judge – and the effect is to imbue them with a legalistic outlook, an effect reinforced by their youth (to which ... algorithmic thinking as distinguished from pragmatic or legislative thinking is more congenial than it is to older persons) and by an understandable desire to believe that their steep law school tuition is buying them a set of powerful analytic tools. When they become law clerks it is natural for them to write opinions designed to provide legalistic justifications for their judges' votes. They thus contribute to the mystification of the next student generation.”

In the absence of legalistic justification for the choice of standard of proof of preliminary facts, other than regarding earlier cases as precedents that should (but why?) be followed, there is a need for policy justification, but legal education does not develop policy reasoning.

I'm bad, I'm bad!

“I am so bad that you can't rely on my confession”: like the Cretan liar, the accused in R v Bonisteel [2008] BCCA 344 (9 September 2008) presents a paradox.

He had boasted about his criminal past in order to gain acceptance into a criminal organisation. At least, that's what he thought the organisation was. In fact he was talking to undercover police officers. They were trying to get him to confess to the murder of two girls who had died from stab wounds. In pretending to be potentially violent and a person not to be messed with, the main interviewing undercover officer questioned the accused in ways that the accused claimed at trial were oppressive. As a result the accused said he did the killings, but he was inaccurate in his account of the wounds inflicted and in his description of the girls.

If his confession to the killings was admissible at trial, his defence tactic was to say that he was lying in order to gain acceptance into the organisation. The bad things he said about himself, including accounts of other offending and prison sentences served, were said with that objective. The reasons that the gang should think he was bad were the same as the reasons the jury should think he was not bad.

There are some unsatisfactory aspects to the British Columbia Court of Appeal judgment (a judgment by Levine J, with which Lowry and Bauman JJ agreed): see CriminalReview.ca. In particular, these concern whether the defence should have been allowed to call expert evidence on false confessions (67-71). There is a floodgates danger, of course, in allowing such evidence.

What is odd is the Court's treatment of the admissibility of bad character evidence. This came first in order of points considered, whereas one would have expected it to come after the oppression point. If the undercover officer's evidence was not obtained through oppression, or other impropriety, then should it be edited to exclude reference to the accused's bad conduct on other occasions?

Instead, the Court approved the trial judge's reasoning (48):

“Thus, the trial judge did not expressly consider editing the statements because his analysis led him to the conclusion that the prejudicial portions were relevant to an issue in the case – the truthfulness of the appellant’s confession – their probative value outweighed their prejudicial effect, and the prejudice could be dealt with by a prophylactic warning. In other words, the prejudicial evidence was neither 'irrelevant' nor 'unnecessarily prejudicial to the accused', so the duty to edit did not arise.”

This led the Court to address the decision on whether a warning to the jury would be an adequate substitute for exclusion of the evidence, and it held that the judge had correctly decided that a warning would suffice.

There is no suggestion in the Court's judgment that the prosecution was able to call evidence of the accused's character other than what the accused had said to the undercover officer. The focus was on the relevance of that evidence to the truth of the confession, that is, to its reliability. However reliability does not cure oppression or impropriety which are logically the prior considerations.

Well, if the Court had addressed the confession admissibility issue first, would it have decided that it had been correctly ruled admissible?

Probably yes: the accused had put himself in a position where he must have realised that the sort of conduct that persuaded him to confess (or more likely, to boast) was likely to occur. In the absence of oppression, the next question is whether there was improper police conduct such as to justify exclusion of the confession on public policy grounds. Unlikely, as far as one can tell from the judgment (86-94). So, the confession was admissible. What then of the bad conduct evidence?

The answer is that, once the confession became admissible, the defence would want the bad conduct evidence in to support its claim that the confession was just big talk. Boasting about his criminal past was part of the accused's tactic to gain acceptance into what he thought was a criminal organisation. His defence was, in effect, “I'm bad, but not that bad.”

Business as usual

Like everyone else, I spend much of my time looking out the window. Except for blind people of course. And those in cells without views. My view is of a forest that looks much as it must have millions of years ago, minus the large and dangerous fauna. I say millions of years with some confidence, as this part of the North Island apparently dates from the late Jurassic. The exasperations of the law have caused me to look at this scene many times. One of the things I wonder about, and have done so today, is why so many criminal appeals are concerned with points that should be obvious.

Vast numbers of criminal appeals are futile, or result from errors that should never have happened. If there is something wrong with this, who is to blame? Are lower courts wilfully contrary or hopelessly dull witted? Are counsel afraid to advise against appeals? Richard Posner in “How Judges Think” (2008, Harvard University Press) says that the high number of criminal appeals is due to appellants not having to pay any costs.

Should lawyers take more responsibility for making decisions – or, more properly, giving firm advice – based on the prospects of success on appeal? Do insurance policies protecting counsel from liability for negligence require that every avenue be explored? Should there be some penalty on judges who make fundamental errors (send them back for a stint in the jurisdiction of first instance)?

It is very rare in a busy criminal practice to come across a point that is genuinely worth appealing. At least it is if the case has been properly handled in the lower court. You would not think so if you got your impressions from reading appellate cases. Those may suggest that every case bristles with genuine appeal points. But they are a very small proportion of the number of cases that are commenced.

But enough of the preamble. Today the High Court of Australia decided that supply of cocaine is likely to seriously endanger the health of the end user: Gedeon v Commissioner NSW Crime Commission [2008] HCA 43. I look out the window and sigh.

A slave to the law

When mens rea requires intention, problems may arise from ignorance of the law being no excuse. This has been illustrated in drug possession cases, concerning the extent of knowledge of the nature of the substance possessed as a component of the intention to exercise possession: see eg R v Metuariki [1986] 1 NZLR 488; (1986) 2 CRNZ 116 (CA). The law deems you to know all the names of the substances listed in the relevant legislation creating the drug offences. But what if you thought that the substance was not a drug but simply a dietary supplement? You might think that, and also know that consuming the substance would give you a buzz: does that amount to mens rea? What if you thought that the thing was not any sort of drug, but that it was something you were not allowed to possess?

I was reminded of these issues when reading today's decision by the High Court of Australia, R v Tang [2008] HCA 39 (28 August 2008). The main issue here was the meaning of intention in the offences of “ intentionally ... possess[ing] a slave or exercis[ing] over a slave any of the other powers attaching to the right of ownership”: Criminal Code (Cth) s 270.3(1)(a). Pursuant to s 270.1, “slavery is the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised ...”. Does mens rea include knowledge that the powers that were exercised amounted to powers attaching to the right of ownership?

At trials (there were two trials, the first resulted in no verdict), the juries had been concerned about this, as revealed in their questions (123 - 124):

“Does the defendant have to have known what the definition of a slave is 'to intentionally possess a slave' as stated in the indictment?”

“To intentionally possess a slave is it necessary for the accused to have knowledge that her actions amount to slavery, or is it sufficient that the accused only have knowledge of the conditions she has imposed (ie slavery has not entered her mind) and the law has decided those conditions amount to slavery?”

The bench of seven delivered three reasoned judgments: Kirby J dissented on the main issue but agreed on subsidiary matters that need not concern us here. The leading judgments were by Gleeson CJ and Hayne J.

Kirby J agreed with the answers to the juries questions that had been proposed by the Court of Appeal, which had set out the following on the main issue (89):

“ ... the accused must have possessed the worker in the intentional exercise of what constitutes a power attaching to a right of ownership, namely, the power of possession. For that to be the case the accused must be shown to have regarded the worker as though she was mere property, a thing, thereby intending to deal with her not as a human being who had free will and a right to liberty, but as though she was mere property. However harsh or oppressive her conduct was towards the worker it would not be sufficient for a conviction if, rather than having possessed the worker with the knowledge, intention, or in the belief that she was dealing with her as though she was mere property, the accused possessed her in the knowledge or belief that she was exercising some different right or entitlement to do so, falling short of what would amount to ownership, such as that of an employer, contractor, or manager."

This highlights the view (rejected by the majority in the High Court) that mens rea includes knowledge of what the law defines as a right of ownership. This approach is analogous to requiring, for the mens rea of drug possession, knowledge of what substances are listed in the relevant legislation.

Gummow CJ addressed mens rea (48 – 49) and held:

“ ... If a person is known by an accused to possess the qualities that, by virtue of s 270.1, go to make that person a slave, then the state of knowledge relevant to intention, and therefore intention itself, may be established regardless of whether the accused appreciates the legal significance of those qualities.”

The Judges must have had in mind the analogy with drug offences, as He Kaw Teh v R [1985] HCA 43 was cited. There, mens rea for importing narcotics was held to include knowledge of the nature and character of the object imported, in the sense that it was a narcotic. He Kaw Teh was not cited in Metuariki (decided 20 May 1986), which has a more detailed consideration of what is the guilty knowledge element of mens rea. These are, nevertheless, difficult to analyse, but they seem to come down to knowledge of either the identity (name, whether common or scientific) of the thing, or knowledge of its effects when consumed.

No doubt comparisons will be made by commentators between He Kaw Teh and Tang: the apparent inconsistency is plain; if importing a narcotic is a serious enough offence to require extension of mens rea to include knowledge of the narcotic nature of the thing imported, why doesn't slavery require knowledge that the rights being exercised are those that are recognised in law as attaching to ownership. If the law acknowledges the exculpatory effect of ignorance that a substance is a narcotic – so that such ignorance is not ignorance of the law – why doesn't the law grant exculpatory effect to ignorance that a right is one that the law attaches to ownership?

Now we are four!

Good grief, was that four years of blogging?
Just an amusing hobby.

Appellant accuses counsel

In Muirhead v R (Jamaica) [2008] UKPC 39 (28 July 2008) the Privy Council allowed an appeal against conviction for murder because of fundamental irregularities that created an unacceptable risk that the trial had not been fair. The issue was identification, and the only significant evidence against the accused was from a child eye witness.

The irregularities were of the kind that only become apparent after the trial: an observer would have thought that there was nothing out of the ordinary in the way the trial had been conducted. Significantly, the appellant’s claim that the errors had occurred was not contradicted by any explanation tendered to the appellate court (the Board) by counsel who represented the appellant at trial.

The appellant swore in an affidavit to the Board that he had not received advice on the consequences of giving a statement from the dock instead of (as he had done at his first trial, in which the jury were unable to agree) giving evidence. He said junior counsel had suddenly indicated to him, while he sat in the dock moments before the decision had to be made, that senior counsel felt he should not go into the witness box. He received no advice about what a statement from the dock entailed or what he should talk about, or about the weight it might have compared with evidence from the witness box.

Also, there was no explanation tendered by counsel for failure at the second trial to call or adduce evidence of the accused’s good character, when such evidence had been called at the first trial.

The Board stressed the importance of counsel keeping a record of instructions (27). That would not assist the appellate court if counsel refused to divulge what they were, but there are ways of making counsel co-operate (new counsel on appeal summoning earlier counsel to give evidence after waiver of privilege by the client). Here there was only silence, and the Board did not speculate as to why.

The duty of counsel to raise good character was emphasised by Lord Carswell and Lord Mance in a concurring judgment (34). Failure to do so here had significance where the appellant should have given evidence at trial, as the judge’s direction on good character may have affected the jury’s assessment of his evidence, especially here where at the first trial the jury had failed to agree. Therefore, the appellant may not have received a fair trial.

Pensees d'escalier

An illustration of how the principle of finality in litigation can prevent a superior court of record from correcting its errors after the necessary formal administrative step has been taken by the registry to complete (“perfect”) the proceedings, is Burrell v R [2008] HCA 34 (31 July 2008).

The High Court unanimously held that the Court of Criminal Appeal (NSW) could not correct the facts it had relied on in its lengthy judgment which dismissed the appellant’s appeal against convictions for murder and kidnapping. The facts had been erroneously summarised in a document which had been included with the appellant’s submissions. The appellate court as a result had a false understanding of some of the evidence. An official in the registry had taken the steps necessary to finalise the appellate court’s order, but this had been done with what Kirby J, in a separate concurring judgment, considered to be arguably “needless speed” (83). Had this not been done so quickly, counsel would have had an opportunity, of the sort that commonly arises when appeal judgments are delivered ex tempore, to offer the court an opportunity to correct and, if necessary, reconsider.

The principle of finality has the purposes of (16) protection of the parties from attempts to re-litigate decided matters, of spurring the court and the parties to get it right the first time, and to spare the parties and the court of the time and expense of a revisiting of the issues. There is additionally (20) the need to be able to be certain about what the result of a case is. (A subsequent amendment to the Rules here allows error correction within 14 days: para 30.)

Kirby J remembered the pressures under which the Court of Appeal conducts its business (78-80), and pointed to the difficulties that may be faced in correcting errors on appeal, where the proviso may be applied (81-82, 89-90) and the attitude of the prosecution to error correction may not be as co-operative as it should be (91-92). Criminal cases have become more complex, submissions more detailed, and decisions longer (84-85) than had been the case when appeals were more commonly disposed of in oral decisions. The difficulty in this case would not have arisen if the official in the registry had not acted so quickly.

We are not told here what the errors of fact had been, and to what extent they may have prejudiced the appellant. The High Court was dealing simply with the jurisdictional point concerning the power to correct error, and the case was remitted to the Court of Appeal for rehearing.

Enticed co-operation and its rewards

When does giving a defendant information as to the possible consequences of his co-operation with the prosecution amount to an abuse of process? Probably never, unless threats of unlawful action are made: Mckinnon v United States of America [2008] UKHL 59 (30 July 2008).

Lord Brown, with whom all the Law Lords agreed, concluded (at 41):

“…It is difficult, indeed, to think of anything other than the threat of unlawful action which could fairly be said so to imperil the integrity of the extradition process as to require the accused, notwithstanding his having resisted the undue pressure, to be discharged irrespective of the strength of the case against him.”
Here, the appellant faced extradition on charges arising from his alleged interference, from his home in London, with military computers in the USA. The US authorities indicated to his lawyer that if he did not oppose extradition his co-operation would very likely result in a significantly lower sentence and in repatriation after a minimum time to serve the balance of the sentence in the UK. He resisted that inducement and argued that it amounted to an abuse of process to such an extent that the proceedings against him should be stayed.

Lord Brown observed (at 34) that plea bargaining is not unknown in the UK:

“…it is as well to recognise that the difference between the American system and our own is not perhaps so stark as the appellant's argument suggests. In this country too there is a clearly recognised discount for a plea of guilty: a basic discount of one-third for saving the cost of the trial, more if a guilty plea introduces other mitigating factors, and more still (usually one half to two thirds but exceptionally three-quarters or even beyond that) in the particular circumstances provided for by sections 71-75 of the Serious Organised Crime and Police Act 2005—see R v P; R v Blackburn [2007] EWCA Crim 2290. No less importantly, it is accepted practice in this country for the parties to hold off-the-record discussions whereby the prosecutor will accept pleas of guilty to lesser charges (or on a lesser factual basis) in return for a defendant's timely guilty plea. Indeed the entire premise of the principle established in Goodyear [2005] 1 WLR 2532 is that the parties will have reached an agreed basis of plea in private before the judge is approached. What, it must be appreciated, Goodyear forbids are judicial, not prosecutorial, indications of sentence. Indeed, Goodyear goes further than would be permitted in the United States by allowing the judge in certain circumstances to indicate what sentence he would pass.”

The circumstances of USA v Cobb [2001] 1 SCR 587 were distinguished, and it could not be said that here the prosecuting authority had attempted to interfere with the due process of the court, nor had it put undue pressure on the appellant to forego due legal process, and extradition here would not violate the fundamental principles of justice that underlie the community’s sense of fair play and decency, and neither would the appellant have paid an unconscionable price for insisting on his rights under English law (para 33 and 38).

We have become so accustomed to procedures like plea bargaining that it is difficult to see what is wrong with reducing a person’s sentence in exchange for a plea of guilty. Economic efficiency has become the dominant concern. It would be interesting to know how many people are adversely affected by this policy: how many convictions are obtained in this way, that could not be lawfully secured otherwise? What is the social cost of such “pragmatic” convictions, compared with the benefits of savings in court time and reduced expenditure on punishment?

[Update:] For a feet-on-the-ground appraisal of this case, see the comment by the English playwright Alan Bennett in Keeping On Keeping On (Faber & Faber, London, 2016), reproducing his diary entry for 31 July 2008, which reads: "A depressing judgement in the House of Lords. This is the not unexpected rejection of the appeal against extradition to the USA of Gary McKinnon, the computer programmer who, for no other reason than that it was there, hacked into the Pentagon computer. Unless the European Court has more courage and more sense than the Law Lords he faces an American prison. And for what? Cheek."
Subsequently, in what the Guardian on 16 October 2012 described as "a victory for common sense" Teresa May blocked the extradition.

Appeals on moot questions

It is a relief to see that the Supreme Court did not need to refer again to the balance of probabilities (see last blog) when it granted leave to appeal in Gordon-Smith v R [2008] NZSC 56 (25 July 2008).

The leave granted here opens the door for an appeal against the ruling in R v King and Stevens [2008] NZCA 79 (blogged 14 April 2008). The case name has changed because this appellant, a co-defendant at trial, had standing to seek leave to appeal. Her standing arose from the fact that she was convicted, and that the Court of Appeal decision on the point of law reserved at the request of the prosecution went against her. But, because the trial judge’s ruling had been in her favour, there is no possibility that a successful appeal here will affect her conviction or sentence. The Crown too wished to appeal against an aspect of the Court of Appeal’s ruling, but again at trial a procedure favoured by the Crown had been followed.

The questions of law for determination in this case are therefore, as far as the parties are concerned, moot. They are:

(1) Can the police supply so-called “vetted jury lists” to the Crown to assist the Crown in deciding whether or not to challenge a prospective juror? If yes:
(2) Should a vetted jury list that is supplied to the Crown also be made available to the accused?
(3) Can the Crown peremptorily challenge a prospective juror on the basis of information obtained from a vetted jury list?

The Supreme Court discussed the question of when it should hear cases where there is no longer an issue that could affect the parties. Following the Supreme Court of Canada in Borowski v Attorney-General [1989] 1 SCR 342 at 358-363, the relevant considerations, once a question qualifies for consideration as a matter of public or general importance, and once a person with standing is applying for leave, are the importance of the adversarial process (which might not be invoked properly in the absence of a live issue between the parties), the need for economic use of judicial time, and the sensitivity of the courts to their proper role (advisory opinions being undesirable, especially where the legislature should determine the matter). The approach being properly cautious, particularly so where (but not in this case) an appeal might call into question the propriety of an acquittal (para 26 – 28), the Court concluded that here the questions were not ones that should be left to the legislature. The same questions of procedure were likely to arise in another case and it was desirable to review the correctness of the Court of Appeal’s decision promptly.

Proof and consequences

Cynical barristers – few though they may be – probably think that judges fudge the standard of proof so that they can decide issues as they wish.

The European Court of Human Rights appears to take a hard line against such fudging: in Saadi v Italy [2008] ECHR 179 (noted in blog for In re B, 12 June 2008) the Grand Chamber rejected an argument that consequences should influence the strength of the evidence required on an issue the court had to decide (para 140, 142). That was in the context of the consequences of allowing a person to remain in Italy (allegedly he was a risk to public safety, especially in the United Kingdom, which intervened in these proceedings) as against the risk that if extradited he would be subject to breach of his absolute right not to be subjected to inhumane treatment (a risk he alleged would arise in Tunisia). The United Kingdom argued that because of the risk he posed to public safety, Mr Saadi should have to adduce stronger evidence than would otherwise be required of the risk to him of ill-treatment. But this (para 140)

“…amounts to asserting that, in the absence of evidence meeting a higher standard, protection of national security justifies accepting more readily a risk of ill-treatment for the individual. The Court … sees no reason to modify the relevant standard of proof, as suggested by the third-party intervener, by requiring in cases like the present that it be proved that subjection to ill-treatment is “more likely than not”. On the contrary, it reaffirms that for a planned forcible expulsion to be in breach of the Convention it is necessary – and sufficient – for substantial grounds to have been shown for believing that there is a real risk that the person concerned will be subjected in the receiving country to treatment prohibited by Article 3 …”

Mr Saadi did not have to go so far as proving on the balance of probabilities that he faced ill-treatment in Tunisia: it was sufficient for him to show “substantial grounds for believing there is a real risk” of such a breach of Art 3. And the risk he might pose to the safety of people in the UK had nothing to do with the likelihood of his being subjected to ill treatment if extradited to Tunisia (139):

“... Either the evidence adduced before the Court reveals that there is a substantial risk if the person is sent back or it does not. The prospect that he may pose a serious threat to the community if not returned does not reduce in any way the degree of risk of ill treatment that the person may be subject to on return. For that reason it would be incorrect to require a higher standard of proof, as submitted by the intervener, where the person is considered to represent a serious danger to the community, since assessment of the level of risk is independent of such a test.”

However, the consequences of the decision (risk of ill-treatment) do make the court sit up and pay attention:

“142 … the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof …”

I mention all this because today it looks as though consequences are permitted to affect the strength of evidence that is required to meet a fixed standard of proof: Z v Dental Complaints Assessment Committee [2008] NZSC 55 (25 July 2008).

Here Supreme Court decided that the criminal standard of proof does not apply to disciplinary proceedings, but that the standard of proof is the civil standard, the balance of probabilities (the sole dissenter on this point was Elias CJ). That aspect of the decision is not particularly surprising, although it was certainly not inevitable. The point of interest here is whether stronger evidence is needed to meet the civil standard when criminal misconduct is alleged.

Saadi v Italy was not cited, but In re B (blogged here 12 June 2008) was. Sharma v DPP (Trinidad and Tobago) (blogged here 11 December 2006) was not.

The majority of the Court, in a joint judgment (Blanchard, Tipping and McGrath JJ) with which Anderson J largely agreed, recognised that the standard – the balance of probabilities – does not change, but that the nature and consequences of the facts to be proved are relevant to the assessment of the evidence. The the standard of proof on the balance of probabilities is accordingly described as flexible. This follows (para 98) Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362 and purports to follow (at para 105) Baroness Hale in re B at 63 and 64. She, you will recall (blog 12 June 2008), administered the quietus to a misunderstanding of what Lord Nicholls had meant in an oft-quoted dictum. And yet, the joint judgment in Z adds, para 114:

“It is sometimes suggested that the law could, at the discretion of the relevant tribunal, require the criminal standard, but only in respect of the most serious of allegations in disciplinary proceedings, being those which would also found serious criminal charges…. Little guidance has been given, however, on when it will be appropriate to require the criminal standard. No coherent principles have been suggested. Conversely, the flexible approach avoids the difficulties of having different standards in the same type of proceeding and having to decide where to draw the line…. In this respect, the flexibly applied civil standard is not only a more straightforward one to apply to disciplinary proceedings. It is also a standard which has conceptual integrity.” [footnotes omitted]

This appears to make the balance of probabilities perform the function of proof beyond reasonable doubt where the consequences warrant that. In place of the uncertainty over when the criminal standard should apply, the majority substitute uncertainty over when consequences will be deemed sufficiently serious to trigger flexibility. The joint judgment purports to deny that requiring stronger evidence in some situations is a matter of law (para 105), whatever that means; are submissions prohibited as to the implications of the seriousness of the consequences for the strength of evidence needed in a given case?

It is tempting to view the majority decision in Z as a choice of the wrong standard of proof for disciplinary tribunals. Generally, it is unpleasant to think of judges as being distracted by the consequences of a decision when they determine whether evidence is sufficiently strong to meet the burden of proof. For example, it would be wrong for a judge to bear in mind that the consequence of finding that the defendant’s rights had been breached could be exclusion of important evidence against him, when deciding whether there had been such a breach.

Anderson J applied a logical approach in largely agreeing with the joint judgment. He criticised (para 143) the Chief Justice’s dissent:

“I have difficulty with the Chief Justice’s proposition that consistency is promoted by applying the criminal standard. It is not the choice of standard which promotes consistency but the consistent application of the same standard, whatever it might be.”

But will regard for the consequences of a decision promote consistency? Why wouldn’t uniform application of the criminal standard to disciplinary proceedings promote consistency? Anderson J says (145) that the choice of the civil standard is supported by the community risks relevant to professional misconduct, but serious crime can also involve community risk – often of a greater degree – yet no one suggests that in such cases the civil standard should apply. True, as the joint judgment points out at 117, some other jurisdictions use the civil standard in disciplinary proceedings, although in the UK it is likely that the criminal standard will apply to such proceedings concerning barristers (110), and perhaps to health professionals (111). The joint judgment preference is for experience over logic (107).

The weakness of the majority's analysis in Z arises from a misuse of the word "flexible". This is more appropriately descriptive of the ease or difficulty with which evidence on an issue might be obtained. It is not a description of the level or standard of proof needed to satisfy the court on the issue. The House of Lords has corrected its over-analysis of the balance of probabilities, and the Strasbourg Court has refrained from embarking on such a discussion, so Elias CJ, although being the minority in Z, is in good company.

A different aspect of Z concerns abuse of process and whether matters that had been the subject of criminal charges on which the defendant was acquitted could be considered subsequently by a disciplinary tribunal. They could, although Anderson J disagreed as to one of the incidents. He, with the majority, saw no difficulty in tribunals having regard to such matters, because of the different context of their proceedings (156), but on the one matter on which they differed the majority (134-136) pointed to jurisdictional reasons for preventing the tribunal from considering it.

Probative value and prejudicial effect

In M v R [2008] NZSC 52 the Supreme Court refused leave to appeal in a case where the Court of Appeal ([2008] NZCA 112) had been split over whether the trial had been fair. The issue was whether there had been a substantial miscarriage of justice (an unfair trial), so this was not the occasion for an examination of one of the most intractable problems in the law of evidence.

That problem is how to decide whether the probative value of proposed evidence is outweighed by the prejudicial effect of ruling it admissible. In New Zealand the statutory formulation of this decision is in s 8 Evidence Act 2006. It has some common ground with the substantial miscarriage of justice issue, in that the fairness of the trial governs each decision.

The three Court of Appeal Judges in M delivered a joint decision which mentioned that a member of the Court, who it did not identify, disagreed with the other two on the fairness issue. The question was, what was the effect of the admission of inadmissible evidence: the accused had been charged with sexual offending and when he was questioned by the police he was asked whether he himself had been abused when he was young, and he said he didn’t know. Under cross-examination the officer who had interviewed the accused said he had asked that question as a way of leading to asking the accused how it might affect his own parenting. The officer denied he was suggesting that if the accused had been abused he would be more likely to be an abuser, and added that he understood that only around 20% of such people went on to become abusers.

The majority view is expressed in the judgment in this way:

“13 A majority of the Court are of the view that although the evidence should not have been led, it appeared to be the subject of cross-examination to use it rather than to overcome it. That is consistent with how the case was advanced with its focus on the complainant’s credibility. Reflecting the sustained attack on her when she gave evidence, the defence stance in closing was that this case involved a very unequal and unfair contrast between a young, intelligent, highly articulate and venal woman, at the height of her powers who had prepared carefully, and an elderly man, no longer in command of his mind or memory, who could only react. In their view there is no risk of miscarriage of justice arising from the admission of this evidence.

“14 The ‘statistic’ drawn out in cross-examination …, that a proportion of around 20 per cent of those who are abused then go on to commit abuse, is not a particularly significant statistic. Further, the appellant was acquitted on one count of indecent assault on a girl under 12. The complainant's recollection of the facts giving rise to that count (incidents of oral sex) was not clear but the differing verdicts suggest the jury had been able to discriminate (consistent with the Judge's directions on the burden and onus of proof) and was not simply applying propensity reasoning.”

This does not, of course, address the terms of s 8, but the relationship with the substantial miscarriage of justice question is apparent in that the evidence, being inadmissible, had no probative value, so the real question was whether there was an unacceptable risk of illegitimate prejudicial effect from its admission, bearing in mind the accused’s right to a fair trial, which is the same as the s 8 right to offer an effective defence viewed in the context of s 6(b) of the Evidence Act 2006 which requires recognition of the accused's rights that are affirmed in the Bill of Rights.

Was there an unacceptable risk that the jury would, as a result of hearing the inadmissible evidence, have given more weight to the complainant’s evidence than it should, or less weight to the defence case? Even if the majority correctly reasoned that the difference in verdicts was attributable to impartial judgment rather than simply to a failure of probative value on the part of the complainant’s evidence on one count, does it follow that the jury were impartial on counts where the complainant’s evidence was detailed?

The judgment reports the minority Judge in these terms:

“16 The third member of the Court is of a different opinion. That member considers that the jury may well have improperly viewed the disputed evidence as predisposing the appellant to act in the manner alleged by the Crown. Acquittal on one of eight counts is no evidence to the contrary. It is quite likely that cross- examination on the topic was out of necessity, by way of attempt to meet what had been admitted, rather than a desired part of the defence case. There is however an outside chance that defence counsel received instructions to allow the evidence to be admitted in support of a sympathy plea. There was a suggestion at the hearing that there may have been a waiver of privilege by the appellant but no evidence resulted. That is a matter which should be explored by an invitation to the appellant focused on the present point, to consider whether to waive privilege so that the Crown may obtain from trial counsel an affidavit as to his instructions. But in the absence of any such instructions the appellant’s absolute right to a fair trial has been infringed by evidence which was highly prejudicial and should never have been admitted.”

This amounts to recognition of a high risk of bias against the accused arising from the wrongful admission of the evidence.

Three Justices of the Supreme Court declined leave to appeal from the Court of Appeal’s dismissal of the accused’s appeal, saying at para 2:

“…The Court [of Appeal] was divided on whether the admission of the evidence resulted in an unfair trial. That is not a question of law or fact of public or general importance as it is entirely dependent upon the facts of the particular case. And, importantly, overall there does appear to have been a fair trial and there is no appearance of any miscarriage of justice.”
So we will have to wait for any assistance the Supreme Court may wish to give on how the risk of an unfair trial is to be identified and dealt with. The basic question in M v R was, when do imputations against an accused’s character amount to illegitimate prejudice? That is one of the hot topics in the law of evidence. There has been a recent Report on it from the New Zealand Law Commission: (NZLC R 103) “Disclosure to Court of Defendants’ Previous Convictions, Similar Offending and Bad Character” (May 2008). This details the complexity of the issues as perceived by those who have discussed them. The appropriate risk of unfairness is treated like this:

“1.22 …The determination of what is "appropriate" can raise a complex mix of considerations. Amongst these are society's interest in conviction of the guilty and acquittal of the innocent; and also matters of practicability within jury trial process, and of human abilities. In the end, and within such constraints, the question of acceptable degree of risk and fairness involves a value judgement.”

This seems to suggest that the accused’s right to a fair trial must be adjusted to accommodate society's interest in a true verdict, which contradicts the position mentioned later, para 8.15, to the effect that the accused’s right to a fair trial is primary:

“In the end, the Commission's view is that in a contest of values, the need for a fair trial should continue to have primacy. The admissibility of evidence for the prosecution can and should go up to the limit which that permits, but not beyond. Policies governing the admissibility of evidence in criminal cases, including within that evidence of previous convictions, past misconduct, and bad character, should be shaped accordingly.”

The Commission thinks predictability will remain elusive:

“7.59 The weighing exercise, like all value judgements, will never produce entirely uniform and predictable outcomes across all judges on all occasions. Views on a particular case may, at times, vary quite sharply, even at the highest levels…[footnote omitted] However, this is unavoidable: any precise formula that did not involve the exercise of judgment would produce undue rigidity and therefore injustice.”

Nevertheless, in my view the exercise of judgment is worthy of study. It is important that it should be predictable and not arbitrary. Judges should not simply state their conclusions; they should give reasons.

The accused’s right to a fair trial is fundamental and absolute, so judicial difficulties in upholding it must be of great concern.

I could go on; in fact I do, here.

Recent invention afterthoughts ...

I should add to my comments on R v Barlien, last blog (8 July 2008) a reference to the Court of Appeal’s decision of 6 June 2008 in R v S (CA592/07) [2008] NZCA 152. This has just come to my attention, and it is consistent with what I said about the meaning of “recent invention” when I considered R v Barlien.

In R v S the Court held that under s 35 of the Evidence Act 2006, recent invention means an invention made after the event spoken of, and invention includes something reconstructed without conscious dishonesty (para 16).

It seems that the Court was wrong in Barlien to conclude that the defence stance there did not amount to an allegation of recent invention (para 51). In Barlien which was decided on 24 June 2008, R v S was not cited. Both are decisions of the Divisional Court (meaning that a Permanent Member of the Court of Appeal sits with two Justices of the next lower court, the High Court), and one High Court Justice sat on both cases.

Prior consistent statements

In R v Barlien [2008] NZCA 180 (24 June 2008) the Court made some important criticisms of s 35 of the Evidence Act 2006. The Court ordered that these criticisms be brought to the attention of the Minister of Justice and the Law Commission.

The essence of the criticisms is that under s 35 a complainant’s prior consistent statement alleging the accused’s sexual misconduct cannot be admissible unless the defence claim that the complainant’s evidence is a “recent invention”. There are other circumstances where the prior consistent statement may be admissible, spelled out in s 35, but that is the one relevant to this case.

At common law there was no such need for a defence claim that the testimony was recently invented if the statement qualified for admission as a fresh or recent complaint. Perhaps – just speculation here – s 35 made this change intentionally as part of a delicate balancing of competing interests. The section does have the effect of making the prior statements, when admissible, proof of their truth (this was held in Barlien para 20); the common law had only allowed them as evidence of consistency.

In assessing the Court’s criticisms of s 35 one should bear in mind how counsel will usually approach the issue. In some cases, counsel for each side can sort out between them, before the trial, whether it is likely the Court will be asked to rule on the admissibility of a prior consistent statement. Disclosure of the complainant’s statements will have been made to the defence, and defence counsel will, in these rare cases, know whether he will be alleging that the complainant’s evidence – assuming the complainant comes up to brief – is a recent invention. That is, an invention made at some point where a motive for invention operated. It would be unusual for a case to be prepared for trial with a conflict between the complainant’s statements. More usually, a conflict will only emerge when the complainant gives evidence. The difference between what the complainant says in court and what the complainant previously told someone will give the previous statements its status as a prior inconsistent statement. But inconsistent statements are not the concern of s 35.

There is no statutory definition of “recent invention” but it is obvious that it means an allegation that what the complainant is saying in court is an invention that was made after the events with which it purports to be concerned. The “recency” refers to the time since those events. The invention in court could be a result of an intention to lie, or it could be an innocent mistake. Most cases, in which the defence either deny the occurrence of the events or dispute the allegation of absence of consent, will be cases where recent invention is alleged.

The Court's concerns in Barlien are of questionable merit.

Here is the Court’s postscript to its judgment in Barlien, setting out its concerns. I have inserted my comments in italics and square brackets:

Postscript

[64] This case has highlighted some issues with s 35 of the Evidence Act and the changes to the Law Commission draft code made at Select Committee stage. The changes were made because the Select Committee considered the original Law Commission section “unworkable and too broad”.

[65] Some might even argue that the Law Commission draft code was too restrictive in that it perpetuated what some might see as an illogical distinction between conduct and statements. This is particularly the case where words are inextricably intertwined with conduct …. In addition, it excluded potentially relevant evidence. This was on the basis that parties should not, without good reason, inundate the court with voluminous repetitive material. However, s 8(1)(b) already gives judges control over this. [Yes, but: in the absence of a defence allegation that the complainant made a prior inconsistent statement – told another story out of court – the jury is likely to think that the testimony they have heard is what the complainant said all along, and the evidence of the complainant’s conduct at the relevant time – when the complaint was made – will make this thought inevitable.]

[66] Further, the Law Commission draft code required a challenge to be made to veracity or accuracy before previous consistent statements became admissible. A jury is still, however, able to reject evidence that has not been challenged given that they are the fact finders – see R v Munro [2008] 2 NZLR 87 at [25] (CA) and R v E [2007] NZCA 404 at [134]. Limiting admissibility to evidence that has been challenged could deprive a jury of potentially relevant material upon which to base their decision. Further, limiting admissibility to cases where there has been a challenge to the evidence means that it can usually only be admitted after such a challenge. This might interrupt the orderly conduct of trials and could inconvenience witnesses who might have to remain on standby, uncertain if they would be called (or recalled). It may also mean that, where words were inextricably tied in with conduct, a disconnection between the evidence as to conduct and the words that accompanied them might arise. There is also the difficulty in assessing admissibility if a witness is yet to testify ….

[67] All of these problems remain, however, with s 35 as enacted and further problems have been introduced. We identify a number below but there may be others.

[68] While the Select Committee said that it was restricting admissibility to those situations where previous consistent statements would have been admissible under current law this is not the case – see above at [35]. The disinterested observer might well think it odd when evidence that would have been admissible under the more restrictive common law rules is no longer admissible under the more expansive Evidence Act provisions.

[69] There appears to have been a mistake in not including, in the exceptions to s 35(1), the res gestae exception – see above at [37] - [39]. [Not necessarily: s 12 may govern this situation.] In addition, the rules relating to recent complaints were not retained – see above at [36]. Such evidence has previously been regarded as being of probative value [Yes, only as going to credibility; now it goes to truth on those occasions when it is admissible]. While the omission of provision for recent complaint evidence may well have been deliberate (although unexplained), it does deprive juries of relevant information - see our comments at [47] - [49] above [Yes, but in the absence of a challenge from the defence the jury will assume that the complainant was always consistent. The Court’s point is that the complainant may forget some of the complaint, but why depart from the usual rules as to forgetful witnesses – s 90(5) ?]. It also deprives [again, might deprive, but the assumption of consistency makes it not very likely to do so] them of evidence which they appear to find helpful – see Dr S Blackwell Child Sexual Abuse on Trial (Thesis submitted for Doctor of Philosophy in Psychology, University of Auckland, 2007) at 216. There is also a possible difficulty with the admission of previous descriptions of the accused, in that s 22A of the Evidence Act 1908 was not brought forward into the new Act – see above at [33] [It is likely that an allegation that an eyewitness is mistaken will count as a claim of recent invention, so the prior consistent description will be admissible, and for its truth, not just as supporting present credibility].

[70] In addition, even more than under the Law Commission version, the admissibility or otherwise of relevant evidence in the form of previous consistent statements depends on how the accused decides to run his or her case. [Not much of a choice, in reality.] The Right Honourable Ted Thomas has recently commented that in his view this is unfair to victims of sexual offending – see “The Evidence Act 2006 and women” [2008] NZLJ 169 at 170. We note that, even if defence counsel does not raise the issue of recent invention, this does not prevent the jury from surmising as to why the complaint is delayed and perhaps considering the prospect of recent invention [Defence counsel cannot suggest that the complaint is a recent invention if it is known not to be; the usual defence position will be that all the complainant’s statements on the material point are inventions.]. Dr Blackwell’s thesis suggests that juries’ decision-making usually involves the “story construction” model whereby personal knowledge or experience about similar events is used, along with evidence at trial, to create a complete story of events – see Dr Blackwell’s thesis at 56 – 57. [See also: Bennett and Feldman, “Reconstructing Reality in the Courtroom” (1981) for the same point.]

[71] Section 35(2) also creates a dilemma for defence counsel. The Law Society seminar on the Evidence Act, pointed out that s 35 makes cross-examination based on previous inconsistent statement or recent invention a difficult and delicate exercise – see Hon Justice William Young and Hon Justice Chambers (Chairs) Evidence Act 2006 (NZLS Intensive June 2007) at 117. Inroads made on certain aspects of the evidence may be countered and indeed marginalised by re-examination on this and on the production of a prior consistent statement. Moreover, evidence given after a challenge may assume more importance than if elicited in the normal course of the evidence. Failure to cross-examine on those aspects could, however, be equally fatal to the defence. [I agree with the authors of the paper referred to where they say, at the same page, “Potentially s 35(2) could greatly widen the opportunity to produce prior written statements of a witness once the witness has been challenged in cross examination.”]

[72] Finally, there are issues with the interface of ss 35 and 45 in relation to identification evidence generally. In [one commentary], it is noted that the better view is that s 35 will apply even where the requirements of s 45 are met. The authors state that a witness will only be able to support the identification of the defendant by way of a previous consistent assertion identifying the defendant where there is a challenge to the witness’ accuracy or veracity (for example on the basis of poor eyesight). However, this comment must have been based on the old version of s 35 because the prior consistent identification would only be admissible under s 35(2) if the challenge was on the basis of a prior inconsistent statement or recent fabrication [No, the word is not “fabrication” – which suggests deliberate falsehood – but “invention” – which could occur by innocent reconstruction of events] (and poor eyesight would not come within those exceptions) [but it would be invention].

[73] The Registry should refer this judgment to the Ministry of Justice and the Law Commission, drawing their attention in particular to this postscript.

If "recent invention" has the wide meaning of an invention made after the alleged events, or really just an invention, then the focus will be on whether the prior consistent statement is necessary to rebut the defence suggestion of invention. It seems that such necessity will be easy to establish, and that s 35 will have a wide operation.

Update: For the Supreme Court's disapproval of much of Barlien, see Hart v R and Rongonui v R, both delivered on 23 July 2010 and discussed here and here.

A note on good character direction cases

Just a note on Maye v R (Jamaica) [2008] UKPC 35 (1 July 2008): the Board referred to recent decisions on the failure of the judge to give a good character direction:

“20. [Counsel for the Crown] quite properly reminds the Board of a series of recent cases such as Bhola v The State [2006] UKPC 9; (2006) 68 WLR 449, Gilbert v The Queen [2006] UKPC 15; [2006] 1 WLR 2108 and Simmons and Green v The Queen [2006] UKPC 19; (2006) 68 WLR 37, which make it plain that the lack of a proper good character direction will not avail the appellant where the court is satisfied that the jury would in any event have convicted. In all those cases, however, the evidence against the accused had been overwhelming.”

(See blog entries for 29 March 2006 and 4 April 2006.)

Here a conviction was not inevitable, and the combination of absence of a good character direction and the failure to call a relevant defence witness caused the Board to quash the appellant’s conviction and remit to the Court of Appeal the decision on whether to order a retrial.

Whether there should be a rule requiring a good character direction whenever the defence point to evidence of good character is a vexed question. In Melbourne v R [1999] HCA 32 (5 August 1999) the majority of the High Court held that a rule should not be applied but rather the matter should be one for the judge’s discretion. Hayne J at 155, after referring to the position in New Zealand and in England and Wales, concluded:

“…There is no point in insisting that a trial judge must give such a direction in every case (or nearly every case) in which good character is established unless to do so assists in achieving a fair trial. And that directs attention to what is in issue at trial.”

Gummow J at 68 referred to historical reasons for allowing evidence of good character, and at 79 preferred the discretionary approach taken by Thomas J (dissenting) in R v Falealili [1996] 3 NZLR 664 at 671-672, which focuses attention on whether the evidence is probative and relevant, as opposed to lacking in probative force and being of remote relevance to the charge in issue.

Kirby J concluded, dissenting, that a rule was the preferable approach, but also indicated (108) that more than mere mention in evidence of absence of previous convictions should be necessary to give rise to the requirement for a good character direction.

McHugh J had two reasons for declining to introduce into Australian law a rule requiring a good character direction (32):

“…First, the difference between the use of good character evidence and the use of bad character evidence in a criminal trial is logically anomalous and, while that difference is too deeply rooted in the law to be removed by judicial decision, it should not be widened. Second, in cases where good character evidence has no logical connection with the elements of the offence, a mandatory direction is likely to divert the jury from properly evaluating evidence which more directly and logically bears upon the guilt of the accused and … such a direction may even confuse the jury.”

In New Zealand the Evidence Act 2006 does not expressly require a direction on good character evidence, and s 11 preserves the “inherent and implied powers of a court” which are not affected by the Act. The matter may continue to be one for development at common law, so that the present position is as stated by the majority in R v Falealili [1996] 3 NZLR 664 (CA). Although, perhaps not: in R v Kant [2008] NZCA 194 (1 July 2008) a divisional Court held that under the Evidence Act 2006 evidence that a defendant has no previous convictions would not meet the high standard of being "substantially helpful" on the issue of veracity (s 37(1)), so would not be admissible. The Court indicated that this point should be determined by the permanent Court as soon as possible.

[Update: in Wi v R [2009] NZSC 121 (27 November 2009) the Supreme Court overruled Kant, holding that evidence of absence of previous convictions does meet the requirement of relevance and is admissible as propensity evidence notwithstanding that its probative value may be slight. The Court added that a good character direction is not mandatory and will usually not be desirable, but the judge must be guided by the requirements of fairness.]

Liability 101: a tutorial teaser

An aspect of the mens rea requirements for liability as a secondary party to an offence was decided in R v Rahman [2008] UKHL 45 (2 July 2008).

Broadly, some foresight is required before accessory liability arises, but is it about what the principal might do, or what he might intend?

The Law Lords unanimously held that foresight goes to what the principal might do, not what he might intend.

In this case four men were charged with murder, and it was likely that the person who struck the fatal blow was never apprehended, as many of the participants in this confrontation between groups of youths fled as the police arrived. There was no doubt that the infliction of unlawful violence was a shared intention, and participants were armed with blunt instruments. However, the victim’s death was caused by a knife used with deadly force. The four defendants (appellants) did not know or foresee that killing was intended. This was held to be no obstacle to their conviction for murder.

The reasons for excluding knowledge or foresight of the principal’s intention from the mens rea for secondary liability were based on considerations pertaining to murder (Lord Bingham at 24-25). Foresight of the principal’s acts, insofar as they involved infliction of serious injury, was given some modification by Lord Brown at 68, with whom Lord Scott appears to have agreed at 31, and with whom Lord Neuberger agreed at 104: foresight of violent acts does not include the unexpected use of a more lethal weapon than had been expected as that would make the principal’s act fundamentally different from anything foreseen. Lord Bingham considered (26) that the exclusion of secondary liability where the principal’s act was “fundamentally different” from what was foreseen was a sufficiently clear criterion for a jury to understand without elaboration.

In New Zealand this topic is dealt with in s 66(2) of the Crimes Act 1961:

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

The point decided in Rahman would, if applied to this, mean that the word “known” applies to the actus reus of “the commission of that offence”, and not to its mens rea.

And here's the teaser: what if the victim in Rahman had survived and the accuseds were charged with being accessories to attempted murder? Would they have no defence that the principal did not intend to kill?

Policy fairness and trial fairness

There are times when the concept of a fair trial calls for explanation. Different notions of what a fair trial is lie behind the 6-1 split in the Chamber Court in Gafgen v Germany [2008] EctHR 565 (30 June 2008).

Evidence had been obtained after the police had subjected the accused to threats which amounted to inhumane treatment, in breach of Art 3 of the ECHR. Part of this evidence comprised his confessional statements made as a result of the threats, before trial, and these statements were ruled inadmissible. This appeal concerned the admissibility of real evidence obtained after the confession, when the accused showed the police where he had concealed the body of the child he had killed. This consisted of the finding of the dead child and the results of a subsequent autopsy, and the accused’s vehicle’s tyre marks in the ground near the body.

The majority noted that the Regional Court in Germany had determined the admissibility of this real evidence, applying a balancing exercise and ruling it admissible, and the European Court’s role was to consider the overall fairness (105). This was not a case where the police had used actual force on the accused so the trial was not one which would be automatically unfair.

That is the point at which one Judge dissented: he held that unfairness should follow automatically upon a finding of a breach of Art 3, which is absolute in its terms. There is no room, he said, for permitting some inhumane treatment just because the suspect poses a serious risk to the safety of the community. The breach of Art 3 was a breach of the accused’s right to silence and it thereby affected the fairness of the trial.

The majority’s view of the meaning of the fairness of a trial can be seen from its analysis of the position here (106-109). The accused, represented at trial, had made new and complete confessions. These proved he had planned the offences (kidnapping, demanding a ransom, and murder) and the statements were corroborated by a witness and by a note found at the accused’s flat. The police had observed the accused collect the ransom. The only use made by the trial court of the items of impugned evidence was to confirm the trial confessions. The impugned evidence was therefore, said the majority, of an “accessory” nature only, in the sense that it’s use was restricted to assessing the veracity of his trial statements. The two statements he made at trial, one at the beginning and one at the end, were in different terms, reflecting a defence strategy, and were not, said the majority, made as a result of his loss of rights as a result of breach of Art 3. The Regional Court had given a reasoned decision for its rejection of his submission that the evidence in question here was inadmissible, and so the accused’s trial rights were also observed in that regard.

From this perspective, the minority Judge was incorrect to the extent he implied that the only reason the accused was on trial was because he had been subjected to a breach of his Art 3 rights.

On what basis could the proceedings against Mr Gafgen have properly been said to be unfair? There are two relevant ways in which fairness is used in this context: public policy fairness and procedural fairness. Public policy fairness involves the balancing of an impropriety against other relevant values in order to determine whether challenged evidence should be excluded, or, where the impropriety is at the serious extreme, whether the proceedings should be stayed. The Regional Court in this case carried out this balancing exercise and ruled the evidence admissible. The Strasbourg Court did not interfere with that assessment, and it suggested that only where there is physically inhumane treatment should the proceedings be stayed. The dissenting Judge, in effect, would have held that any inhumane treatment, including threats, should be sufficient to require a stay of the proceedings.

The second way in which fairness is used is in the concept of a procedurally fair trial. This means a trial in which the law is accurately applied to facts that are determined impartially. The majority held that, given the correctness of the balancing decision to admit the evidence, there was no resulting impartiality. The trial Court did not give improper weight to other evidence as a result of the admission of the challenged evidence. Neither, as “accessory” evidence, was the challenged evidence given weight that it did not merit. On the other hand, the dissenting Judge, in effect, considered that the breach of Art 3 resulted in a breach of the accused’s right to silence, and impartiality arose from the prosecution having the advantage of more evidence than it would have gathered without the breach of Art 3.

The position would have been clearer if the ECtHR had been willing to examine the correctness of the Regional Court’s carrying out of the balancing exercise, although there are reasons of jurisdiction for it not having done so. If the Court had examined the balancing exercise, it probably would not have accepted that all breaches of Art 3 carry the same weight. Some forms of inhumanity are indeed more serious than others. Not all such improprieties require exclusion of evidence in serious cases. The dissenting Judge was wrong on the public policy aspect of the case. He treated policy matters that were the domain of the national court as if they were relevant to procedural fairness. He was also wrong to hold that the breach of the accused’s right to silence (assuming that there was such a breach) led to impartiality through the prosecution having more evidence than it should have had: the quantity of evidence is an admissibility issue to be determined by the public policy balancing exercise; an analogy may be made with evidence obtained through improperly conducted searches. The minority Judge’s concerns are subsumed in the balancing exercise.

Of course views on the correctness of Gafgen v Germany may differ. It is worth looking at the case to see how strikingly similar the balancing exercise is in German law to that in the jurisdictions that follow the English tradition. The similarity is enough to make you pick up your copy of George Fletcher’s “Rethinking Criminal Law” (1978) – happy 30th! – but as his American English is rather unclear I don’t get far with it, again. But don’t let my difficulties put you off; I am, apparently, the only person who thinks HLA Hart’s English English is tediously obscure.

Counsel misconduct: unfair or merely improper?

When does it matter that counsel conducts a case improperly? In Huggins v The State (Trinidad and Tobago) [2008] UKPC 30 (9 June 2008) prosecuting counsel was held not to have caused the trial to be unfair, although it was complained that he had made disparaging and belittling remarks about witnesses and counsel and that he had accused one counsel of being party to concocting his client's case and coaching him in his evidence (para 18).

The Board’s assessment was (para 32):

“…their Lordships strongly deplore behaviour of this nature by prosecuting counsel. They should observe proper standards of decorum and courtesy in their conduct of the case, their treatment of the witnesses and the presentation of their addresses to the jury, as should all counsel in a trial. They should take care not to misrepresent the evidence given on either side or the case being made on behalf of the defence. They are of course entitled to make out as effectively as they can the prosecution case against the defendant, that he is guilty of the crime charged, for that is their proper function in an adversarial system. They have to be careful, however, not to allow vigour in presentation of the prosecution case to trespass into the area of unfairness by indulging in the type of behaviour exemplified by the cases which their Lordships have cited. Regrettably prosecuting counsel in the present case overstepped the mark on a number of occasions, and it would have been preferable if the judge had pulled him up earlier and made it clear that such behaviour was unacceptable. The issue is whether his departure from propriety was of such a nature as to deprive the appellants of a fair trial.”

This effort to state standards that apply to all counsel is, unfortunately, hindered by the Board’s deference to the view of the Court of Appeal here, as it acknowledged that it was “influenced by the fact that the Court of Appeal, with their knowledge of local conditions and culture, were of opinion that those remarks would not influence a jury in Trinidad to an extent which would make a trial unfair.” (para 34)

What, then, is the sort of influence on a jury that would make the trial unfair? The Board emphasised the approach in Randall v R [2002] UKPC 19 that the overriding requirement is that the trial is fair, regardless of the strength of the evidence against the accused. As Lord Bingham said at para 28 of Randall:

“…the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.”

The exercise is one of weighing up the seriousness of the irregularities (29) as occurred in Bernard v The State [2007] UKPC 34 (blogged here 11 May 2007). As I noted in discussing Bernard, the views of Lord Carswell (who delivered the Board’s judgment in that case and in the present case) may be changing, to emphasise that fairness does not turn on the strength of the prosecution case.

Given that we are not here to focus on the strength of the prosecution case, the sort of influence on the jury that is relevant is the risk that the jury will become prejudiced, partial, biased as a result of the misconduct.

That is why the Board was prepared to be influenced by the Court of Appeal’s view of the effect of the misconduct on the jury in this case.

This is not to say that, in countries with such juries, counsel may engage in misconduct as long as it falls short of causing unfairness. The Board made it clear that when it occurs, the judge should intervene to prevent its continuation.

The cases illustrate distinctions between robust but respectful speech (Benedetto v R [2003] UKPC 27) and gratuitous and unpleasant remarks about defence counsel and improper vouching for the soundness of the prosecution case (Ramdhanie v The State (Trinidad and Tobago) [2005] UKPC 47).

The idea that unfairness is unfairness, no matter whether it is caused by procedural error or the improper admission of evidence, which I have advanced in discussing Bernard v The State, is relevant to another aspect of the present case. A second ground of appeal was that new evidence undermined the ruling at voir dire that statements by two of the accused were admissible. Here the Board noted (37) “Given the strength of the prosecution case, the prospect that the material would have caused the jury to reach a different conclusion on these appellants' guilt is highly questionable.” This seems to be treating the (posited) improper admission of evidence as being cured by the strength of the prosecution case. This was obiter, as the new evidence was held not to have affected the correctness of the decision to rule the statements admissible.

It would have been more in keeping with an unfragmented concept of fairness to hold that the statements, if wrongly ruled admissible, did not cause the jury to be more disposed to accepting other prosecution evidence than it otherwise would have been.

More hearsay ...

In this season of contemplation of hearsay, the Supreme Court of Canada chips in with R v Blackman [2008] SCC 37 (26 June 2008). This concerns the principled approach to admission of hearsay that is not covered by another recognised exception to the exclusionary rule.

Here the hearsay statements were by the now deceased victim to his mother, the witness who would report the statements to the court. They were relevant to an issue: the identity of his killer.

Some points made by the Court:

• At the stage where the determination of admissibility has to be made, the judge may have to accept an assurance from counsel that other evidence will establish the relevance of the proposed hearsay statements (para 32).
  

• The proponent of the hearsay must establish the necessity for it and its reliability on the balance of probabilities (33).
  

• It is wrong for the judge to ask whether the hearsay statement is inherently unreliable; that is to reverse the burden of proof. Because hearsay is presumptively inadmissible, the question is whether the proposed statement is inherently reliable (37-38).
  

• Absence of evidence of a motive to fabricate the assertion in the statement is not the same as evidence of an absence of motive to fabricate (39).
  

• The focus is on the trustworthiness of the hearsay statement (R v Khelawon, blogged here 15 December 2006): what are the dangers in admitting the statement and can these be overcome? (54)
  

• It is important not to confuse the determination of admissibility by referring to the wider circumstances of the case (57), but there can be occasions where the presence of corroboration does go to the trustworthiness of the hearsay statement (55).
  

These points, I suggest, have some relevance to the approach to hearsay in New Zealand: see Evidence Act 2006, ss 16 – 22, especially s 18(1)(a). In other respects the decision in Khelawon is not applicable here, insofar as in some circumstances it passes to the jury the assessment of the reliability of the statement and this could confuse reliability with probative value. The last point is difficult: it means that generally the reliability of the hearsay statement is assessed by reference to the context in which it was made, and not by the context of the overall evidence in the case, except that sometimes corroborative evidence will assist in deciding admissibility.

The customer appreciation party

Notable about Smith v R (Jamaica) [2008] UKPC (23 June 2008), aside from a sardonic and picturesque narrative of the facts (involving the fatal stabbing of “Ram Puss” at a street party in Kingston which was a “customer appreciation party” hosted by the appellant’s father at a shipping container which had been converted to a small “cook shop”), is a comment on the standard of proof of facts that have to be established before evidence becomes admissible.

Here, the evidence in question was a deposition made by an eyewitness who became too afraid to give evidence at trial. Certain matters, set out in s 31D of the Evidence Act 1843, had to be “proved to the satisfaction of the court”. The Board held, para 21, "In their Lordships' opinion the standard applicable is proof beyond reasonable doubt … ".

This is of particular interest at a time when courts are tending to be satisfied with proof of preliminary facts to the standard of the balance of probabilities: see for example R v Aylwin [2008] NZCA 154.

Other topics touched on are the duties of prosecution counsel, the probative/prejudicial effect balancing exercise, and the absence of a good character direction. On the latter, the Board held, at 30:

“The law has become clearer since the time of this trial and it hardly needs repetition now that a defendant is entitled to have a good character direction from the judge when the facts warrant it and that its absence may be a ground for setting aside a verdict of guilty. It is the duty of defence counsel to ensure that the defendant's good character is brought before the court, and failure to do so and obtain the appropriate direction may make a guilty verdict unsafe: Sealey & Headley v The State [2002] UKPC 52, (2002) 61 WIR 491; Teeluck & John v The State [2005] UKPC 14 [2005] 1 WLR 2421. It has, however, been emphasised by the Board in recent cases that the critical factor is whether it would have made a difference to the result if the direction had been given: see, eg Bhola v The State [2006] UKPC 9, (2006) 68 WIR 449, para 17, per Lord Brown of Eaton-under-Heywood. In the present case the appellant did not give evidence and merely made an unsworn statement from the dock, so that the credibility limb of the direction would have been of lesser consequence. The propensity limb might have been of some relevance, but their Lordships do not consider that, looking at the trial as a whole, it would have made any difference to the verdict.”

I have commented here on Teeluck (see blog for 1 April 2005). See also Gilbert v R (Grenada) (29 March 2006). The extract just quoted from Smith states the critical factor as “whether it would have made a difference to the result if the direction had been given”. At this point the Board teeters on the brink of a terrible mistake. It would involve, as I pointed out discussing Gilbert, treating procedural unfairness as being remedied by strong prosecution evidence. However in the last sentence the Board appears to regain its balance, if it is saying that absence of propensity evidence would not have caused the jury to give inappropriate weight to any of the prosecution evidence: that would be a procedural ground for the decision, not a strength of prosecution case ground.

Hearsay and the US Constitution

Giles v California [2008] USSC No 07-6053 (25 June 2008) illustrates a tension between the Constitution and the law of evidence in California, and, by analogy, between the Constitution and the Federal Rules of Evidence (FRE). This was not a case where the FRE applied, but the California Evidence Code did.

Broadly, for the details are of little interest outside the USA, a majority of the Supreme Court held that the State court needed to make a further factual finding before the admissibility of some hearsay evidence could be determined. Scalia J, who delivered the opinion of the Court, was not in the majority in one important respect.

This concerns whether the Constitution can be read as accommodating developments in the law of hearsay, or whether its effect remained as the founders (a term I use broadly to include those who amended the Constitution) understood the law to be and wanted it to remain. Scalia J adhered to the Court’s decision in Crawford v Washington 541 US 36, 53-54 (2004) which takes the latter alternative, and said (slip op. p 22) that it is not for the Court to go behind the words of the Constitution to find underlying values which are then used to modify the effect of the guarantees.

That approach, rejecting growth and development, contrasts with rule 102 of the FRE, whereby the rules:

“… shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”

The FRE rule 807 creates a residual exception to the rule excluding hearsay, but the California Evidence Code does not have a corresponding provision; that is why resort was had in Giles to the Sixth Amendment right of confrontation. The Californian Code does, however, set out rules that would, subject to the factual matter yet to be determined, be applicable to the situation in this case (s 1370) and the Code must be construed liberally and with a view to promoting justice (s 2).

Breyer J, dissenting, referred to the interpretation issue (slip op. p 10):

“…the hearsay rule has always contained exceptions that permit the admission of evidence where the need is significant and where alternative safeguards of reliability exist. Those exceptions have evolved over time, see 2 K. Brown, McCormick on Evidence §326 (2006) (discussion the development of the modern hearsay rule); Fed. Rule Evid. 102 (“[T]hese rules shall be construed to secure . . . promotion of growth and development of the law of evidence”), often in a direction that permits admission of hearsay only where adequate alternative assurance of reliability exists, see, e.g., Rule 807 (the “Residual Exception”). Here, for example, the presence in court of a witness who took the declarant’s statement permits cross-examination of that witness as to just what the declarant said and as to the surrounding circumstances, while those circumstances themselves provide sufficient guarantees of accuracy to warrant admission under a State’s hearsay exception. See Cal. Evid. Code Ann. §1370.”

In Breyer J’s opinion, it was not necessary for the Constitution to set a high threshold for the loss of the right to confront a witness, because State legislatures could (and here, did) establish their own safeguards:

“To lower the constitutional barrier to admission is to allow the States to do just that, i.e., to apply their evidentiary rules with flexibility and to revise their rules as experience suggests would be advisable. The majority’s rule, which requires exclusion, would deprive the States of this freedom and flexibility.” (p. 11)

Breyer J was joined by Stevens and Kennedy JJ. Souter and Ginsburg JJ joined with Scalia J in all except the part of his opinion which dealt with the approach to interpreting the Constitution. This majority favoured a view of the Constitution that permitted development of the exceptions to the hearsay rule.