On mixed statements

The Supreme Court of Canada has simplified the direction that judges are to give juries on mixed statements. These are statements by an accused person that are partly incriminatory and partly exculpatory. Now, juries are not to be told that the exculpatory parts might be given less weight because the accused was not under oath when they were stated or because they were not subject to cross-examination: R v Rojas [2008] SCC 56 (24 October 2008).

This is a rejection of the English approach to directing juries on mixed statements, which was established in R. v. Duncan (1981) 73 Cr. App. R. 359 and applied in R. v. Aziz [1995] 2 Cr. App. R. 478. Under this approach, it is proper for the judge to tell the jury that exculpatory parts of a mixed statement do not necessarily carry the same persuasive weight as incriminatory parts.

The cases suggest that an approach like that in Rojas has been approved in New Zealand: R v Tomkins [1981] 2 NZLR 170 (CA), R v Tozer [2002] 1 NZLR 193, (2001) 19 CRNZ 269 (CA), and – to pick an Australian example cited in Tozer – in Western Australia: Middleton v R (1998) 19 WAR 179 (CCA WA). Those cases support the proposition that it would be wrong to tell a jury that the exculpatory parts of a mixed statement may have less weight because they were not given under oath, the jury should be told to consider the whole of the statement and to give such weight to such portions of it as it thinks proper.

It has, however, been by no means unusual to hear judges suggest to juries that there are various circumstances that indicate that the exculpatory parts of mixed statements should be given little weight, while adding that these are matters for the jurors to decide for themselves. Indeed, judges could hardly sum up prosecution cases without referring to such circumstances. But the point is that under Rojas the weight differential is not a matter of law.

The wider context of all the circumstances of the case led the Court to conclude, in Rojas, that the misdirection was "more unfortunate than fatal" (41). This was particularly so because the judge had explained that a denial may raise a reasonable doubt as to guilt, that an accused was entitled to the benefit of the doubt, and the judge had left the assessment of the statements entirely to the jury.

On the other hand, in a case decided the same day, the misdirection on mixed statements was fatal: R v Illes [2008] SCC 57 (24 October 2008). In contrast to Rojas, this was a majority decision. Here the jury may have thought that it was a matter of law that incriminating parts of mixed statements carry more weight than do exculpatory parts. The proviso could not be applied because the jury deliberations had been lengthy, the judge had given the misdirection after the jury had indicated they were at an impasse, and the mixed statements were critical evidence. The majority concluded that the jury would not inevitably have reached the same verdict if they had been properly directed.

Plainly, where the mixed statements do not form a critical part of the prosecution case, there will be significant evidence to suggest that their exculpatory parts deserve little weight; in such circumstances it would, as Illes illustrates, be harmless error for the jury to think that this reduced weight applied as a matter of law.

The common law rules as to how an accused's statements to the police should be treated in evidence developed as an exception to the rule against hearsay. As an exception, their contents were admissible as proof of their truth, and this was, over time, recognised as applying to the exculpatory parts as well as to the incriminatory parts. In New Zealand the relevant law has become statutory: Evidence Act 2006. This has not necessarily made the position simpler.

Section 27 provides that the hearsay rules do not apply to evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant. It is not clear that the prosecution offers the exculpatory parts of a mixed statement, although the argument would be that these were offered as evidence of the defendant's lies. Section 124 provides for lies directions, but it will not always be the case that the defence would want this sort of direction given. Section 21 provides that if a defendant in a criminal proceeding does not give evidence he may not offer his own hearsay statement in evidence. Are the exculpatory parts of his mixed statement hearsay? Not if they are offered by the prosecution (s 27). If the prosecution omits reference to them, the defence may elicit them in cross-examination, and this amounts to "offering" them as evidence (s 4 definition of "offer evidence"), but because of s 21 the defence may only do this if the defendant is going to give evidence. Yet the defence may not have decided at that point whether the defendant will give evidence. Could the exculpatory parts of a mixed statement be admissible as ordinary hearsay evidence, under s 18, as s 18 is not subject to s 21? The problem with that is that there is a high reliability threshold for the admission of hearsay evidence, namely that the circumstances relating to the statement provide reasonable assurance that the statement is reliable: s 18(1)(a). Exculpatory statements are hardly likely to carry that assurance, otherwise the defendant would not be on trial.

I suspect that "a statement" in s 27 means the whole statement that was made, not just the incriminatory parts. Section 6(c) requires fairness, and the admissibility of exculpatory parts of mixed statements arose at common law out of considerations of fairness. Section 21 should be read restrictively, so that the exculpatory parts of the non-hearsay statement are offered not by the defendant but by the prosecution. There is no provision in the Act specifically addressing the nature of an appropriate direction that the jury should be given about the weight of exculpatory parts, but s 122 does permit the topic to be addressed and no particular form of words is required. The question whether to follow the Supreme Court of Canada's approach in Rojas will need to be decided, but it could be argued that s 122 pre-empts the courts' power to develop particular rules.

Fantasy and invention

In discussing recent invention (see blog for 8 July 2008 concerning R v Barlien, and the further comment on 19 July 2008), I suggested that an "invention" could be an innocent invention and not just a dishonest one. The point has been addressed briefly in R v Stewart [2008] NZCA 429 (22 October 2008).

Here there were several themes discernable in the cross-examination of the complainant. One, that in the Court's view did not necessarily amount to an allegation that she had recently invented her evidence, was the suggestion that she had been infatuated with the accused and had fantasised about these purely imaginary events. The Court did not refer to another possible difficulty with using an allegation of fantasising as the basis for admitting a prior consistent statement, namely the likelihood that such a prior statement would also be the product of inflamed imagination.

The Court's indication that, on its own, an allegation that a complaint was the result of fantasising need not be an allegation of recent invention, seems to suggest that any innocent misstatement of the facts would not count as an "invention" for the purposes of s 35(2) of the Evidence Act 2008. Personally, I don't see why not, as that provision refers both to use of prior consistent statements to respond to challenges to the witness's veracity and to the witness's accuracy. Inaccuracy can occur without untruthfulness.

The infatuation suggestion in Stewart had, however, to be seen in the context of the other themes to the cross-examination in this case. These were allegations of deliberate falsehood and motivation to obtain financial advantage. In the particular context the Court held that it was not possible to separate the allegations into those which were said by the defence to be motivated only by fantasy from those that were said to be motivated by dishonesty. Accordingly, the defence position was that the complaints were recent inventions, with the consequence that, subject to s 8 of the Evidence Act 2006 (the general discretion to exclude unfairly prejudicial evidence), evidence of the complainant's prior consistent statements was admissible.

The Court referred at 85 to R v Barlien and followed it on the point that the prior consistent statements were evidence of their truth.

Our fair-minded feminine side

Barristers, being fair-minded observers of the judiciary, are constantly amazed at how fair-minded judges are. (I smirk, but then I often smirk – it doesn't mean anything.) No doubt judges have acquired this fair-mindedness in the course of their practice at the bar before they were appointed – elevated can hardly be the right word – to the bench. No doubt barristers acquire their own fair-mindedness by learning from the example of judges. Aside from the chicken and egg question that comes to mind, we are justified in rejoicing at this perpetual cycle of fair-mindedness.

Occasionally the complaints of clients make it necessary for counsel to submit, reluctantly but courageously, that a judge has been biased, and so an examination of the concept of fair-mindedness is required. The House of Lords, back from their surprisingly long summer break, have addressed this in Helow v Secretary of State for the Home Department [2008] UKHL 62 (22 October 2008).

They don't say so, but in describing the qualities of fair-mindedness the Law Lords are portraying themselves. There is, as modesty demands, a gentle tone of mockery in Lord Hope's opening remarks:

"The fair-minded and informed observer is a relative newcomer among the select group of personalities who inhabit our legal village and are available to be called upon when a problem arises that needs to be solved objectively. Like the reasonable man whose attributes have been explored so often in the context of the law of negligence, the fair-minded observer is a creature of fiction. Gender-neutral (as this is a case where the complainer and the person complained about are both women, I shall avoid using the word "he"), she has attributes which many of us might struggle to attain to."

Too modest, and a signal we are in for some sarcasm on the sexual-politics front. So,

"2. The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53 [I interpose here to note that Kirby J in that passage is absurdly conscientious in avoiding use of the male pronoun]. Her approach must not be confused with that of the person who has brought the complaint. The "real possibility" test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially."

A further quality of this creature of fiction is that he is "informed":

"3. Then there is the attribute that the observer is "informed". It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment."

Some caution is needed when a judge has been associated with a political cause, as Lord Walker said (26), adding that the judicial oath is not a panacea (27). Lord Cullen noted that some faith could be placed in the judge's training and experience (30) – just as I thought. Lord Mance referred briefly to a principle of automatic disqualification (40) that could arise in circumstances that didn't apply here. He also observed that cogent evidence is needed to show judicial bias (57) but he also described the judicial oath as a symbol, not a guarantee, of impartiality. As to whether a judge's failure to disclose an interest is necessarily an indication of lack of fair-mindedness, things get a bit circular when Lord Mance points out (58) that failure to disclose might indicate real fair-mindedness because the judge was so fair minded that it wouldn't have occurred to him that he might not be fair-minded.

Well it's all marvellous stuff, and very reassuring.

Too much information

Anyone who thinks criminal cases are really just civil cases but with a higher standard of proof as to the ultimate issue will not be surprised by the growth in complexity of pre-trial procedures. Those relating to disclosure of information by the prosecution to the defence received some consideration by the Privy Council in McDonald v HM Advocate [2008] UKPC 46 (16 October 2008).

The need to ensure that an accused person receives a fair trial seems to be taken to mean that, as far as is possible, the "parties" (to use an expression from the civil side of the law) should be put on an equal footing. The assumption is that the accused will have to prove his innocence, regardless of what might be said about the standard of proof.

Fraying of the golden thread has led to development of a new "golden rule", stated by Lord Bingham in R v H and C [2004] 2 AC 134 and referred to by Lord Rodger in McDonald at para 50:

"...Put shortly, the Crown must disclose any statement or other material of which it is aware and which either materially weakens the Crown case or materially strengthens the defence case...".

The application of this rule requires development as cases arise. Reference was made in McDonald to the current preparation of a legislated code concerning disclosure in Scotland.

In New Zealand we have new legislation that has not yet come into effect: the Criminal Disclosure Act 2008. This will impose obligations that are much wider than those of the golden rule. [Update: the Act commenced on 29 June 2009.]

In McDonald Lord Rodger was particularly concerned with the problems that will arise when large volumes of information come under consideration for possible disclosure. He pointed to the different functions of the prosecution and the defence in an adversarial system, 60, and observed that there is no way of avoiding reliance on officials carrying out their duties conscientiously. He considered that where the defence makes only a general request for disclosure it would need to be able to satisfy a court that the material it sought would have a legitimate bearing on an issue before disclosure would be ordered (76).

The narrow rule/wide request/narrow enforceability approach is not taken in the New Zealand legislation, which has more of a wide rule/wide request/fairly wide enforceability structure.

Recently there was some public concern over the extent to which the defence could obtain knowledge about people who were not involved in a particular case although their personal information had been gained in the course of police inquiries. That concern is heightened where accused persons represent themselves and have access to that sort of information. Perhaps that incident involved an over-eagerness to be candid with the defence, although it could also indicate an unwillingness by the police to devote time to the sifting of information to isolate that which might assist the defence. The Act is limited to "relevant" information (s 13(2)(a)), and this would not authorise the police to simply dump as much information as possible on the defence.

Our ethos is different from yours

In a decision that very nearly passed me by – because of its civil nature – the Supreme Court of Canada has held that the civil standard of proof is fixed, does not change according to the seriousness of the issue or the improbability of the allegation, and a flexible approach to it is not in law appropriate : FH v McDougall [2008] SCC 53 (2 October 2008).

This last point contrasts with the New Zealand Supreme Court's majority decision in Z v Dental Complaints Assessment Committee (blogged 25 July 2008). A fundamental difference in ethos is apparent: the SCC does not hesitate in this unanimous judgment to acknowledge that a change in the law as it has hitherto been applied is appropriate. The NZSC majority are more conservative, declaring that a flexible approach to the civil standard of proof has worked up to now, so there is no reason to change it. So although the standard in NZ is fixed, it is - strange to say - applied flexibly.

It will be recalled that the civil standard of proof is relevant to criminal law because most preliminary factual issues are determined according to that standard.

The SCC does not refer to the NZSC decision, and the NZSC majority in Z barely refer to the Canadian law (but to the extent that they do, at 117, they mention the flexible approach in professional disciplinary proceedings that has now been overruled).

In FH v McDougall the Court declares (at 40) the following propositions to be wrong:

"(1) The criminal standard of proof applies in civil cases depending upon the seriousness of the allegation;

"(2) An intermediate standard of proof between the civil standard and the criminal standard commensurate with the occasion applies to civil cases;

"(3) No heightened standard of proof applies in civil cases, but the evidence must be scrutinized with greater care where the allegation is serious;

"(4) No heightened standard of proof applies in civil cases, but evidence must be clear, convincing and cogent; and

"(5) No heightened standard of proof applies in civil cases, but the more improbable the event, the stronger the evidence is needed to meet the balance of probabilities test."

No, the only standard of proof in civil cases is the balance of probabilities, there is no intermediate standard applicable on some occasions. The evidence must always be scrutinised with great care. To meet the standard of proof evidence must always be clear, convincing and cogent. And the probability or improbability of the event does not affect the strength of the evidence needed, as a matter of law, although the inherent probabilities will be taken into account by the fact finder.

I suppose that the conflict can be resolved by reading the majority in Z as holding that the flexibility they found in the civil standard of proof is not "flexibility as a matter of law" but rather it is flexibility in the sense that the inherent probabilities, as a matter of practical experience, will always be taken into account by the fact finder. This reading has support at para 105 of Z, but the joint judgment has chosen unfortunate terminology in its insistence on "a flexibly applied civil standard of proof". There are clear indications that the majority in Z intended to support the proposition - and this is put as a rule (para 112) - that serious consequences justify a requirement for evidence of heightened cogency, a proposition rejected in FH v McDougall.

Elias CJ addressed (in dissenting) the different approaches in Z as follows (28):

"It is often said that more grave allegations are less likely to be true and require more in the way of evidence before the trier of fact will be satisfied [footnote: Hornal v Neuberger Products Ltd [1957] 1 QB 247 at p 266 per Lord Morris; Budget Rent ACar Ltd v Auckland Regional Authority [1985] 2 NZLR 414 at p 425 (CA) per Somers J.] I have some doubts as to the extent to which experience bears out the proposition, but in any event it is clear that its application turns on human experience and the particular context, as Lord Nicholls made clear in Re H. Statements such as these have however caused confusion when applied, not to the inherent probabilities which any decision-maker necessarily weighs, but to the standard of proof [footnote: As described by Lord Hoffmann in Re B at para [12]]. The confusion has led to judicial statements which suggest that the standard of proof is itself "flexible", an unfortunate and inaccurate notion. Nor do I think matters are improved by the suggestion that it is not the standard but its application that is "flexible". "Flexibility" is a term I think best avoided in the context of proof, despite its impressive pedigree [footnote: Lord Bingham in B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340 at pp 353 – 354 (HL); Lord Scarman in R v Secretary of State for the Home Department, ex pKhawaja [1984] 1 AC 74 at p 113; Lord Nicholls in Re H at p 586]. Proof is made out whenever a decision-maker is carried beyond indecision to the point of acceptance either that a fact is more probable than not (if the standard is on the balance of probabilities) or that he has no reasonable doubt about it (if the standard is proof beyond reasonable doubt) [footnote: Miller v Minister of Pensions [1947] 2 All ER 372 at pp 373 – 374 (KB) per Denning J; Rejfek vMcElroy (1965) 112 CLR 517 at para [11]]."

It is interesting to see the senior appellate courts dealing with the same issues within a brief time span. No doubt the High Court of Australia will chip in soon.

Risk of unfairness: is the criminal standard of proof applicable?

On a day when I am feeling particularly smug, I am not going to spoil my mood by risking being in contempt of court. So my comments on Solicitor General v Fairfax New Zealand Ltd 10/10/08, Randerson CHCJ, Gendall J, HC Wellington CIV-2008-485-705 will have a narrow focus.

The plaintiff alleged that the respondents were in contempt of court because they had published information that gave rise to a real risk of interference with the due administration of justice by compromising the fair trial rights of the persons who currently face criminal charges. This allegation was held not to be made out (134):

"We conclude that the Solicitor-General has not proved beyond reasonable doubt that, as a matter of practical reality, the actions of the respondents in publishing the Fairfax articles caused a real risk of interference with the administration of justice by compromising the fair trial rights of the accused. ..."

Here we have a compound of several ideas: the right to a fair trial, the standard to which it must be proved that a trial would not be fair, a real risk of interference with the right, and the standard of proof that there is that real risk.

In Chamberlains v Lai (blogged here 11 September 2006) the Supreme Court noted that a "real risk" of the loss of a more favourable verdict is a lesser standard of proof than the balance of probabilities. A person could show that such a risk existed by adducing relatively slight evidence, and the sensitivity of the court to the issue would operate to put the burden on the other side of excluding that risk.

The present case concerns the risk that a trial could be unfair. The right to a fair trial is absolute (Condon v R, blogged here 24 August 2006) and the fairness of the trial is a matter for judicial sensitivity. Yet here, arguably, the High Court has diminished that in its formulation of its conclusion.

Certainly, the prosecution must prove its allegation of contempt to the standard of beyond reasonable doubt. What that means here is that the contents of the publications and the identities of the publishers must be proved beyond reasonable doubt. The publications in question must be of the kind that could give rise to a real risk of trial unfairness, otherwise they are irrelevant to the proceedings. But once that relevance test – which does not carry a particular standard of proof - is met, the only live issues for proof beyond reasonable doubt, given that the contents of the publications are not able to be disputed, are the identities of the publishers.

In Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563; (1995) 13 CRNZ 244, Richardson P, giving the judgment of the Court of Appeal, held:

“The present rule is that, where on the conventional analysis freedom of expression and fair trial rights cannot both be fully assured, it is appropriate in our free and democratic society to temporarily curtail freedom of media expression so as to guarantee a fair trial.”

In the present case the Full Court departed from this by requiring the prosecution to show beyond reasonable doubt that the publication prejudiced trial fairness: this is not a guarantee of a fair trial, it would permit trials that are probably going to be unfair as long as they would not beyond reasonable doubt be unfair.
See also my blog for 19 July 2005,"Proof and Risks".

Reviewing judge alone verdicts

In two decisions yesterday, the second of which applied the first, the Supreme Court of Canada explained when the reasons for verdict at a judge alone trial are sufficient to survive review on appeal: R v REM [2008] SCC 51 and R v HSB [2008] SCC 52 (both 2 October 2008).

The key to assessing the adequacy of reasons is appreciation of the functions of such reasons and to apply those to the context of the instant case. These are set out in REM at paras 11 and 12, and the Court, in a unanimous judgment in each case delivered by McLachlin CJ, also referred to R v Sheppard [2002] SCC 26 at 46, 50 and 55 for a fuller statement of them.

An overview of what is required of an appellate court is set out in REM at 55-57:

"[55] The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions. If there is a difficult or novel question of law, it should ask itself if the trial judge has recognized and dealt with that issue.

"[56] If the answers to these questions are affirmative, the reasons are not deficient, notwithstanding lack of detail and notwithstanding the fact that they are less than ideal. The trial judge should not be found to have erred in law for failing to describe every consideration leading to a finding of credibility, or to the conclusion of guilt or innocence. Nor should error of law be found because the trial judge has failed to reconcile every frailty in the evidence or allude to every relevant principle of law. Reasonable inferences need not be spelled out. For example if, in a case that turns on credibility, a trial judge explains that he or she has rejected the accused's evidence, but fails to state that he or she has a reasonable doubt, this does not constitute an error of law; in such a case the conviction itself raises an inference that the accused's evidence failed to raise a reasonable doubt. Finally, appellate courts must guard against simply sifting through the record and substituting their own analysis of the evidence for that of the trial judge because the reasons do not comply with their idea of ideal reasons. As was established in Harper v. The Queen, 1982 CanLII 11 (S.C.C.), [1982] 1 S.C.R. 2, at p. 14, "[a]n appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence. ... Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede."

"[57] Appellate courts must ask themselves the critical question set out in Sheppard: do the trial judge's reasons, considered in the context of the evidentiary record, the live issues as they emerged at trial and the submissions of counsel, deprive the appellant of the right to meaningful appellate review? To conduct meaningful appellate review, the court must be able to discern the foundation of the conviction. Essential findings of credibility must have been made, and critical issues of law must have been resolved. If the appellate court concludes that the trial judge on the record as a whole did not deal with the substance of the critical issues on the case (as was the case in Sheppard and Dinardo
[[2008] SCC 24]), then, and then only, is it entitled to conclude that the deficiency of the reasons constitute error in law."

In each of the present cases the British Columbia Court of Appeal had erred, in REM by approaching the case from a defence perspective of scepticism, and in that case and in HSB by substituting its own credibility findings for those of the respective trial judges.

The Court did not refer to its own rather weak decision in R v Jackson [2007] SCC 52 (blogged here 6 December 2007) perhaps giving us reason to think that case is best forgotten, and there would have been value in considering AK v Western Australia (blogged here 27 March 2008) for a comparison with the appellate approach to miscarriage of justice.

Considerations such as these will be increasingly relevant as judge alone trials become more frequent, as they will when judges have the power to order trial without jury for cases that are long (more than 20 days) or complex (so that a jury would be unlikely to be able to perform its function effectively), or where there are reasonable grounds to apprehend intimidation of current or future jurors. Such provisions are due to come into force in New Zealand on 25 December 2008 pursuant to s 361D and E of the Crimes Act 1961.

Judges as scholars

Who are top of the heap, judges or academics?

Should academics be allowed to slap down judges for their indulgence in scholarship when they should be simply deciding cases? Do judges have a responsibility to bring realism to the dreamy theorising of academics?

The senior judges write much of their decisions for the benefit of law students and lawyers. Who else is going to read them, especially when there is no right of appeal? Legal education does not stop at the end of the final classroom session. Indeed, the learning of the law barely starts at law school, even though significant skills and knowledge may be acquired there.

Academics learn the law primarily from judges. To the limited extent that they can bring anything new to the law, academics may be able to point to ways of resolving the contradictions that can arise in case law, by devoting time to research. Research in law usually means looking at the way the same problem has been addressed or avoided by courts in other jurisdictions. If academics expect judges to pay attention to their research, can they criticise judges for doing research of their own? There is no monopoly on the application of legal skills.

Thoughts such as these are prompted by the recently published study by Professor James Allan, Professor Grant Huscroft, and PhD candidate Nessa Lynch, "The Citation of Overseas Authority in Rights Litigation in New Zealand: How Much Bark? How Much Bite?" (2007) Otago Law Review Vol 11 No 3, downloadable here. See also this article in the New York Times, which refers to that article and to several other studies.

A spectacular example of judicial scholarship, which some might say was at the expense of judgment (I don't know whether it was or was not), occurred last week in the New Zealand Court of Appeal: Lab Tests Ltd v Auckland District Health Board [2008] NZCA 385. This is not a criminal case, but don't be alarmed. Just look at the judgment of Hammond J, which starts at para 348. The approach here is cheerful, learned, and above all interesting. Hammond J, a former Dean of the Auckland University Law School, mentions - without condescension - the conflicting views of academic commentators. This is apparently effortless scholarship, and will surely be the envy of academics. It demonstrates that legal learning can be great fun.

A cynical view of judicial scholarship seems to underlie the Otago study cited above :

"Increasingly judges act as academics, giving speeches, participating in conferences, writing law review articles, and contributing to books – if not writing them... Like academics, they are keen to expand their influence, and that of their courts. Rights are a language that is spoken internationally, and judges are writing not simply for domestic but also for overseas audiences – especially other judges and academics, all of whom may promote and further disseminate their decisions. It is not only individual judges who are keen to promote their decisions internationally. Courts are keen to promote and disseminate their decisions internationally as well...."[footnotes omitted] (p 11).

This seems to be a human failing (p 12):

"In all likelihood, personal relationships also play an important role; friendships between judges from different countries – perhaps formed through meetings at academic and judicial conferences – may lead them to cite the decisions of their respective courts. Growth in the use of court clerks is another contributing factor. Left on their own, many judges would have little time or inclination for the sort of research that rights-based internationalism demands. Increasingly, however, courts utilize clerks and executive-type legal officers, many of whom are recent law school graduates and, as a result, likely to be conversant in overseas case law, if not enthusiastic proponents of it."

On this appraisal, the motives for judicial scholarliness are influence-seeking, and friendship-forging, assisted by subservience to law clerks. Winning friends and influencing people might be by-products, but I doubt that anything other than the joy of scholarship is the real motivation for doing what academics would like to think academics do best.

And why shouldn’t judges be scholars? They have plenty of time for it, as do lawyers. At least Dr Johnson thought they did, as noted by Boswell (Life of Johnson, narrative for Thursday 6th April 1775):

“No, Sir, there is no profession to which a man gives a very great proportion of his time. It is wonderful, when a calculation is made, how little the mind is actually employed in the discharge of any profession. No man would be a judge, upon the condition of being totally a judge. The best employed lawyer has his mind at work but for a small proportion of his time; a great deal of his occupation is merely mechanical.”

How much have you got?

The presumption of innocence refers to two things: the burden of proof and the standard of proof. It means that the burden of proof is on the prosecution, and the standard of proof is beyond reasonable doubt. The presumption of innocence applies at a criminal trial when the ultimate issue is whether the defendant is guilty.

The presumption of innocence is not the same thing as the right to a fair trial, although in some generalised conceptions of fair trial the presumption of innocence is regarded as a requirement for trial fairness. But it need not be, and in any event the presumption of innocence has exceptions.

The most obvious exception to the presumption of innocence is that if the defendant is relying on the defence of insanity, he must prove that on the balance of probabilities he was insane at the relevant time. This exception is justified on the basis that he will know more about his state of mind than the prosecution, so he should have the burden, and, as it seems unfair to require him to prove insanity to the standard of beyond reasonable doubt, the lesser standard of the balance of probabilities applies.

The law has not regarded the need to raise a reasonable doubt on the issue as a standard of proof. There are only two standards of proof: beyond reasonable doubt, and the balance of probabilities. See, for example Z v Dental Complaints Assessment Committee (blogged here 25 July 2008) and the Index to this site, and the entries under the heading "Standard of proof", for exceptions to this generalisation.

Another illustration of an exception to the presumption of innocence is where, on proof that he had a particular quantity of illicit drug in his possession, the defendant must prove on the balance of probabilities that he did not have an intention to supply it to another person, if he is to avoid conviction for possession of the drug for supply. This exception is more controversial than the insanity one, because the prosecution should have access to evidence of the defendant's dealings, and should be able to prove circumstances indicating an intention to supply the drug. That is not particularly different from requiring the prosecution to prove the mental elements of possession of the drug. So this exception to the presumption of innocence may be thought to lack sufficient justification in policy terms and may be a breach of the right to be presumed innocent. See Hansen v R [2007] NZSC 7 (blogged 20 February 2007). In the UK the raising of a reasonable doubt has been held to be "proving" absence of a mental element: R v DPP ex p. Kebilene [2002] AC 326, so that amounts to recognition of a third standard of proof.

Sometimes a reverse onus of proof is applied to the issue of the magnitude of a confiscation order in proceeds of crime applications. This situation existed in Grayson and Barnham v United Kingdom [2008] ECHR 877 (23 September 2008). The focus here was on whether a provision requiring the applicants to show on the balance of probabilities that they did not have sufficient assets to meet a confiscation order, the amount of which corresponded to the court's assessment of their benefits from their respective offending, was in breach of the fair trial requirement in Art 6§1 of the Convention. This was important, not only because of the amount of money involved, but also because in default of payment prison sentences which were quite hefty were imposed.

The Strasbourg court has long regarded the presumption of innocence as part of the general notion of a fair hearing: Saunders v. United Kingdom, judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, § 68. Also, proceedings of this nature are treated as analogous to sentencing: Phillips v. United Kingdom (no. 41087/98, §§ 35 and 39, ECHR 2001-VII.

Well, in the present case it was the applicants (the original accuseds) who had the means of proving their present inability to pay. The Court quoted Lord Steyn, with whom the other Law Lords agreed, in R v Rezvi [2002] UKHL 1, who approved the following reasons given by the Court of Appeal supporting the exception to the presumption of innocence in this context:

"(a) It is only after the necessary convictions that any question of confiscation arises. This is of significance, because the trial which results in the conviction or convictions will be one where the usual burden and standard of proof rests upon the prosecution. In addition, a defendant who is convicted of the necessary offence or offences can be taken to be aware that if he committed the offences of which he has been convicted, he would not only be liable to imprisonment or another sentence, but he would also be liable to confiscation proceedings.

(b) The prosecution has the responsibility for initiating the confiscation proceedings unless the court regards them as inappropriate ...

(c) There is also the responsibility placed upon the court not to make a confiscation order when there is a serious risk of injustice. As already indicated, this will involve the court, before it makes a confiscation order, standing back and deciding whether there is a risk of injustice. If the court decides there is, then the confiscation order will not be made.

(d) There is the role of this court on appeal to ensure there is no unfairness."

Those backstop matters – the appropriateness of the proceedings, the avoidance of a serious risk of injustice, and the appellate court's role of ensuring there is no unfairness – were reflected in the ECtHR's conclusion (49):

"The Court agrees with the judgments of the Court of Appeal in the instant cases ... that it was not incompatible with the notion of a fair hearing in criminal proceedings to place the onus on each applicant to give a credible account of his current financial situation. In each case, having been proved to have been involved in extensive and lucrative drug dealing over a period of years, it was not unreasonable to expect the applicants to explain what had happened to all the money shown by the prosecution to have been in their possession, any more than it was unreasonable at the first stage of the procedure to expect them to show the legitimacy of the source of such money or assets. Such matters fell within the applicants' particular knowledge and the burden on each of them would not have been difficult to meet if their accounts of their financial affairs had been true."

There was therefore no violation of the right to a fair trial arising from the reverse onus. The applicants had argued that they were in the unfair position of having to prove a negative, and (for one of the applicants) that the assumptions made by the lower court when it assessed the benefit obtained from offending continued to operate as assumptions when the court decided the ability to pay. The point seems to be that not only did the applicant have to prove inability on the balance of probabilities, but also he had to do so in the face of an additional assumption against him. This was not explored by the Court.

The argument raises two concerns: did the additional assumption against the defendant, assuming it existed, mean that unfairness occurred in the sense that the standard of proof he had to satisy was raised by requiring him to adduce more cogent evidence than he otherwise would have had to adduce; or, was there unfairness arising from a bias by the court against the defendant, which again required him to adduce more cogent evidence that should have been the case? European law asserts that the standard, the balance of probabilities, does not change with the seriousness of the consequences of the decision (see blog discussing Z, above). However, here there was nothing to indicate that the courts in the case of each of the applicants had applied the wrong standard or that they were biased.

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.