Haunted by the past

One way of getting a longer prison sentence than is warranted by a present offence is to have a bad record of previous criminality.

Sometimes statutory sentencing regimes spell this out. One approach is to exhaustively list the prior offences that will serve to increase a subsequent sentence, and to require courts to apply that list regardless of the particular facts that gave rise to earlier convictions. Another statutory approach is to state the quality of previous offending that will increase a subsequent sentence.

This latter approach came under scrutiny in Chambers v United States [2009] USSC 13 January 2009.

Here, the present offending received an increased sentence if the previous offending included a specified number of offences that were defined as violent felonies because they, inter alia (to mention only the critical point in this case) were

"... burglary, arson, or extortion, involve[d] the use of explosives, or otherwise involve[d] conduct that present[ed] a serious potential risk of physical injury to another"

(Armed Career Criminal Act 18 U.S.C. section 924(e)(2)(B)(ii); this is referred to as the residual clause).

The question was whether a previous conviction for failing to report for weekend imprisonment counted as a "violent felony". The lower courts had held that failure to report was a form of escape from a penal institution, and was therefore a violent felony because of the risk of harm posed by the aggressive behaviour of escape. The Supreme Court disagreed.

This required Breyer J (delivering the opinion of the Court in which Roberts CJ, Stevens, Scalia, Kennedy, Souter and Ginsburg JJ joined), to distinguish the established approach of characterising previous offending by type of offence without reference to particular facts, from the process of determining whether a previous instance of offending fell within a specified type of offence. This latter required reference not just to the way offences were grouped in the statute that created them, but to the characteristics of the particular definitions within such a group. Here, failure to report was grouped in the relevant statute with escaping from custody. But failure to report was a form of inaction, not having the aggressive quality of escaping:

"The behavior that likely underlies a failure to report would seem less likely to involve a risk of physical harm than the less passive, more aggressive behavior underlying an escape from custody."

Furthermore, there was no significant evidence that a non-reported would pose a risk of violence:

"The offender's aversion to penal custody, even if special, is beside the point. The question is whether such an offender is significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a "serious potential risk of physical injury.""

Therefore the previous conviction did not count towards qualification for an increased sentence in this case.

Justice Alito, with Thomas J concurring, agreed in the result but called on Congress to create a specific list of defined crimes that are deemed worthy of attracting the sentencing enhancement.

"ACCA's residual clause is nearly impossible to apply consistently. Indeed, the "categorical approach" to predicate offenses has created numerous splits among the lower federal courts, ... the resolution of which could occupy this Court for years. What is worse is that each new application of the residual clause seems to lead us further and further away from the statutory text. Today's decision, for example, turns on little more than a statistical analysis of a research report prepared by the United States Sentencing Commission." [footnote omitted]

Plainly there is a need to avoid the sentencing courts having to make detailed inquiries into the significance of instances of prior offending, while at the same time providing a categorical approach that will deal appropriately with individual offences. In Chambers the present offence (being a felon in possession of a firearm) would have attracted a minimum sentence of 15 years' imprisonment if the prior offending qualified. That would – had the views of the lower courts prevailed – have given enormous significance to the offender's failure to report for weekend detention (he had failed to report for four weekends out of an eleven weekend sentence which had been imposed for a robbery and battery offence which itself qualified to be included in the present calculation). The Court does not say what sentence Mr Chambers received for the failure to report.

There are easier ways of sentencing recidivists. One is to leave it to the judges, but as politicians can gain votes by promoting harshness it is inevitable that legislators will intervene. Some jurists favour this. Such intervention could be by reference to previous sentences of imprisonment as criteria for increasing subsequent sentences. That approach avoids the difficulty of classifying offences.

Restoring pendency

Jimenez v Quarterman [2009] USSC 13 January 2009 is a narrow decision in which the plain meaning of statutory language is applied to determine when time for federal proceedings arising from a state conviction begins to run.

Sometimes the language used by a foreign court points to a concise way of expressing an idea. In this case the Court, in a unanimous opinion delivered by Thomas J, used the word "pendency". Here, a conviction had been entered and the time for appeal against it had expired. Later, the appellate court granted leave to appeal out of time. Had the conviction been final before the appellate court granted that leave? Yes. And after the appellate court granted leave to appeal out of time, was the conviction final? Clearly not, as an appeal was pending.

Normally we say that the appeal is pending, and that the conviction is subject to an appeal. Here the Court said the grant of leave to appeal restored the pendency of the conviction.

The Court interpreted section 2244(d)(1)(A) of the Antiterrorism and Effective Death Penalty Act 1996, which defines when a conviction is final, in a way that was consistent with the settled understanding in this context. Time for commencement of federal review proceedings begins to run when the state proceedings – including those where leave to appeal out of time has been granted - have concluded.

So, a common sense result. Enough to restore the pendency of one's disenchantment?

Getting on with it

Does either party, prosecution or defence, have an obligation to find the quickest way through the legal labyrinth?

The defence may complain of breach of the right to trial within a reasonable time, although in the course of the proceedings it took such legal objections as were available to it (eg objections based on lack of jurisdiction). Is the defence to blame for the time taken up in deciding such issues?

The defence might agree to a course that is not the quickest. For example, it may agree to have an issue of confiscation decided by the trial judge rather than the most immediately available judge. Or it may fail to seek severance from a co-defendant, when severance could have led to quicker resolution. Is the defence to blame for these sorts of delay?

If the state has done all it can to expedite proceedings, does that render all delay reasonable?

In Bullen and Soneji v United Kingdom [2009] ECHR 28 (8 January 2009) the Chamber applied (58) its established approach of assessing reasonableness of delay by reference to the complexity of the case, the conduct of the parties, and what was at stake for the defendant. These were confiscation proceedings, and were to be treated for this purpose as analogous to sentencing (applying Crowther v. United Kingdom, no. 53741/00, §§ 24 and 25, 1 February 2005).

Here the jurisdictional point had been particularly difficult, and the House of Lords had overruled the Court of Appeal. The Chamber summarises the House of Lords reasoning at 30. It was not a point that needed to be considered by the Chamber, but essentially it concerned the consequences of a statutory limitation on commencement of confiscation proceedings, and the distinction between mandatory and directory requirements, and between (for the latter) purely regulatory directory requirements (where breach never invalidates subsequent action) and other directory requirements (where the consequences of breach depend on whether there was substantial compliance with the requirement).

The Chamber held (62) that neither party was to blame for the appeal delay in this case.

The defendants could not be criticised for agreeing to have the trial judge determine the confiscation issue (64), and failure by the defendants to press for early determination or to seek severance did not absolve the state from its obligation to deal with cases within a reasonable time (65, citing Crowther, above). The defendants could not be blamed for the time it took judges to hear the confiscation argument and to reach decisions, or for the time between the lodging of the appeal to the Court of Appeal and delivery of that Court's decision (67, 68). The Chamber also noted (at 69, and seemingly in contradiction to para 62) the two year delay between the Court of Appeal's certification of the point of appeal and the House of Lord's judgment on that appeal. This latter may be an illustration of the kind of delay for which the state will not normally be responsible unless – as apparently here – the delay was inherently unreasonable.

The apparent contradiction between paras 62 and 69 disappears once it is remembered that it is not only the parties who are involved: the state is responsible for compliance with the defendant's right to a hearing within a reasonable time.

The Chamber noted that what was at stake for the defendants was serious (70): further imprisonment in default of payment of substantial sums, after the sentences of imprisonment had been served, and over 5 years since the convictions were entered, where payment was more difficult that it would have been without the delay.

The delay here was held to have been in breach of the art 6§1 right to a hearing within a reasonable time. An argument that the proceedings were unfair was dismissed.

Rational driving

Anyone using the roads these holidays will be pleased with the Supreme Court's decision in Aylwin v Police [2008] NZSC 113 (19 December 2008). Some people who will be caught driving with excess breath or blood alcohol levels will be displeased that unmeritorious and technical defences are disappearing, but the huge majority enter pleas of guilty at an early stage and accept responsibility.

There were two offences in Aylwin: failing to accompany an officer (s 59(1)(b) Land Transport Act 1998), and driving with excess breath alcohol (s 56(1)).

On the failing to accompany charge, a point of general interest was made. The defence had not challenged the witness's evidence that the breath screening test and the evidential breath test had been carried out properly so as to bring them within the statutory definitions of those tests. At the time of the defended hearing the Evidence Act 2006 was not in force, but the Supreme Court, upholding the Court of Appeal, held that unless challenged by the defence the witness's evidence that the tests were carried out is sufficient proof that they were. One would have expected the rule in Browne and Dunn to have applied, but in any event s 92 of the Evidence Act 2006 now requires cross-examination on "significant matters that are relevant and in issue".

It was open to the defence, on the failing to accompany charge, to cross-examine on whether the procedures that had occurred complied with the requirements of the definitions of the tests. The defence could, as always, advance any allegation of bad faith if the circumstances warranted that.

The excess alcohol charge was different in that errors in carrying out the breath tests are rendered irrelevant by s 64(4) and (5), so that the prosecution need only establish (para 14 of the Supreme Court judgment):

(a) The fact that a breath screening test was conducted;

(b) The fact that an evidential breath test was conducted;

(c) The results of these tests; and

(d) That [the defendant] was advised of his right to have a blood test.

As protection against errors in the breath testing procedure (whether human error or machine error), the person can elect to have a blood sample taken for analysis (para 11, referring to s 70A). The defence could still allege bad faith, but on the present facts there was no suggestion of bad faith.

There is no mention here of the right to legal advice that a person has during the testing procedures, which arises because of the element of detention necessarily inherent in the process. Breach of that right remains a matter relevant to the admissibility of the evidence of the result of the testing – whether of breath or blood - and this will be determined by the s 30 Evidence Act 2006 balancing exercise.

The judgment does not elaborate what challenges may be made to points (a) and (b) above, other than to mention bad faith. If the defence took issue with whether what was done amounted to, for example, an evidential breath test, then - given that errors in carrying out the test don't count - attention would focus on whether the device used was an approved device. A challenge based on bad faith would be directed at disputing the witness's honesty.

Degrees of forgery

Judges don't always agree that a given statutory text coincides with its purpose. In Li v R [2008] NZSC 114 (19 December 2008) the majority of four judges held that text and purpose coincided, while the Chief Justice dissented. The text was s 256(1) of the Crimes Act 1961[NZ], which defines an offence of forgery:

"Every one is liable to imprisonment for a term not exceeding 10 years who makes a false document with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration."

Here the appellant had been convicted on counts of making false certificates of qualifications and selling them to people who knew they were false documents.

The majority held that this wording was clear and that there was no need for an intent to deceive the person who provides the payment. This places on an equal footing, as far as maximum penalty is concerned, those who make a false document intending to obtain valuable consideration with those who use such a document to obtain such consideration (s 257(1)(a)). The act of selling the false document to a knowing recipient is a making use of the falsity of the document if the seller knows that it will be used deceptively (69). This contrasts with an innocent copying, of a famous picture for example, where the maker believes the purchaser has no intention of using it deceptively (joint judgment at 67, and Elias CJ at 53).

How could anything be more simple, you might wonder. On what basis could the Chief Justice dissent?

She found (4) it difficult to construe the section – a sure sign, I suggest, that something is about to go wrong. She didn't like the idea that this serious offence could be committed without deceiving the purchaser of the false document. The majority at 52-53 explain why that is not a bad thing.

Central to Elias CJ's approach is a perception of reduced culpability on the part of those who do not deceive their purchasers (30, 41), but the joint judgment sees no such distinction (53). Elias CJ considers that on the majority's approach it was sufficient for the judge to direct the jury that an intention to sell the document to a person who was not deceived would be sufficient for liability (39), but that is not the entirety of the majority's conclusion (69) which recognises that the judge's direction may technically have been incomplete in its omission of a need for proof that the accused intended the purchaser to use the document deceptively.

The appellant had made a concession (apparently in pleadings, not mentioned in argument) that destroyed her opportunity for a retrial. She had acknowledged that she should have been convicted of a lesser offence (s 256(2)). However, as the majority pointed out, that acknowledgement cured any defect in the judge's direction (69) and her appeal was dismissed.

Kingdom or country?

For discussion of when time begins to run in relation to the right to be tried within a reasonable time, see Burns v HM Advocate [2008] UKPC 63 (15 December 2008). The fact that a decision is made to hold the trial in another country (here, Scotland) does not mean that time runs from when proceedings are initiated in that country if the accused person has previously been told by officials in one country (here, England) he will be charged.

Given that time ran from when the appellant was first informed he would be charged, the question of whether the delay was unreasonable and if so what was the appropriate remedy was left to be decided after the trial, applying Spiers v Ruddy [2007] UKPC D2.

It was appropriate to view the events as a continuum (Lord Rodger at 24) and to look at substance rather than form (Lady Cosgrove at 52). Delay is to be assessed from the defendant's perspective (26, 46). Ordinary people will be unaware of jurisdictional subtleties (54) and the obligations under the Convention are incurred by the United Kingdom; the governing consideration is not how the UK arranges its internal jurisdictional matters (27).

On when a person is charged, Lord Bingham's dicta in Attorney General's Reference (No 2 of 2001) [2003] UKHL 68; [2004] 2 AC 72, 91, paras 27-28 were applied (15). All the circumstances must be considered, but

"As a general rule, the relevant period will begin at the earliest time at which a person is officially alerted to the likelihood of criminal proceedings against him."

The implications of deeming

What are the implications of the phrase "A discharge under this section shall be deemed to be an acquittal": s 347(4) Crimes Act 1961[NZ]?

Does it imply that there should be deemed to have been a verdict of not guilty? And that evidence had been adduced that was sufficient for a fact finder (jury usually) to consider? And that the evidence that the prosecution had adduced at this notional trial had been the strongest that had been anticipated on the basis of pre-trial proceedings?

Or does it simply mean that when the judge told the accused "You are discharged" he meant "You are found not guilty without the need for a trial"?

A difference in understanding of the meaning of "deemed" in this context, where its implications for the special plea of previous acquittal (s 358(1)) had to be determined, was the basis for a difference of opinion in the New Zealand Court of Appeal: R v Taylor [2008] NZCA 558 (17 December 2008).

The majority (Chambers and Panckhurst JJ) in separate judgments placed slightly different emphasis on grounds for their conclusion that where s 358(1) mentions a "former trial" it means an actual trial, not a notional trial that was deemed by s 347(4) to have occurred.

Chambers J at 39 set out his reasons for declining to give "former trial" an expansive meaning. Each of these may, with respect, be challenged. He said an expansive meaning would strain the wording of the subsection, that he didn't know how the subsection should be re-written, that the same expanded meaning would have to apply in s 358(2) and 359(3), so that and revision of the law would have to be legislative. In answer to those propositions it could be said that there is no straining other than that required by the deeming provision, that no rewriting is required, and that the phrase "former trial" need not have the same meaning every time it is used but can take its meaning from its context.

Panckhurst J focused on the common law origins of the legislative provisions on the special pleas, holding (116) that there is an underlying requirement of jeopardy of conviction. Consequently, "former trial" means an occasion on which the accused was at risk of conviction (117), and that a deemed acquittal does not trump the requirement of actual jeopardy (123).

That, of course, assumes that the legislature did not intend to deem a former trial to have occurred.

Fogarty J dissented on this point. He held (134 – 138) that the deeming provision should not be read down, but instead should be given a liberal interpretation so as to mean that there was deemed to have been a trial prior to the proceedings at which the special plea is made. Parliament intended that a discharge under s 347 should carry all the benefits of an acquittal (139). This removes any apparent inconsistency between the sections (141).

There are attractions in the reasoning of the dissent. An interpretation that avoids legislative inconsistency is preferable to one that requires the legislators who enacted the Crimes Act 1961 to be thought of as fools whose efforts were "curious and archaic" (25).

No doubt the unsuccessful (self-represented) appellant will be drafting his application for leave to appeal to the Supreme Court. On the assumption that these proceedings are not yet at an end, I say no more.

[Update: the Supreme Court refused leave to appeal: Taylor v R [2009] NZSC 45 (15 May 2009), saying that "whatever may be the answer to the s 347 point" the proposed appeal had no prospect of success because the offences were not sufficiently similar to permit the plea of previous acquittal on the facts.]

Don’t mention rights ...

Just a note on reverse onus provisions and when the legal burden is appropriate instead of merely an evidential burden: R v Chargot Ltd (t/a Contract Services) [2008] UKHL 73 (10 December 2008).

Lord Hope, with whom the other Law Lords agreed, said at 28:

"Section 40 [of the Health and Safety at Work etc Act 1974] imposes a reverse burden of proof on the employer. In Sheldrake v Director of Public Prosecutions [2004] UKHL 43; [2005] 1 AC 264, para 21 Lord Bingham of Cornhill said that the justifiability of any infringement of the presumption of any innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case. In para 30 he drew attention to the difference between the subject matter in R v Lambert [2001] UKHL 37; [2002] 2 AC 545 on the one hand, where it was held that the imposition of a legal burden on the defendant undermined the presumption of innocence, and R v Johnstone [2003] UKHL 28; [2003] 1 WLR 1736 on the other, where it was held that there were compelling reasons why there should be a legal burden. In the former case, where section 28 of the Misuse of Drugs Act 1971 was in issue, a defendant might be entirely ignorant of what he was carrying. In the latter, offences under section 92 of the Trade Marks Act 1994 are committed by dealers, traders and market operators who could reasonably be expected to exercise some care about the provenance of goods in which they deal. It seems to me that the situation in which the reverse burden imposed by section 40 arises is analogous to that in R v Johnstone. Sections 2 and 3 impose duties on employers who may reasonably be expected to accept the general principles on which those sections are based and to have the means of fulfilling that responsibility."

This direct – almost casual – approach to deciding the appropriate standard on reverse onus is refreshing in comparison to the intricate exercise that bills of rights seem to require, culminating in a balancing of rights to see if there is an infringement and, if there is, a determination of what limitations are justified in a free and democratic society.

Absolute or relative inhumanity

As recently as 18 March 1789 Catherine Murphy was burnt at the stake at Newgate, although locals regarded this event distastefully. Her death did not attract a crowd like that of the 20,000 who witnessed the burning of Elizabeth Herring at Tyburn on 13 September 1773. The method of Catherine's execution (for clipping coins) shows traces of humanity:

"Catherine Murphy's execution was to be the last burning of a woman in England and was really was only a modified form of hanging, followed by burning. She was led from the Debtor's Door of Newgate past the nearby gallows from which 4 men, including her husband, were already hanging, to the stake. Here she mounted a small platform in front of it and an iron band was put round her body. The noose, dangling from an iron bracket projecting from the top of the stake, was tightened around her neck. When the preparations were complete, William Brunskill, the hangman, removed the platform leaving her suspended and only after 30 minutes were the faggots placed around her and lit."

Is inhuman or degrading punishment a relative, or an absolute, concept? What seems fine to us might be abhorrent in another culture. Or, putting it the other way, should we condemn as inhuman the practices of another culture merely because we would call them so?

There must be many people in cultures not dissimilar to the English who approve of the death penalty. Examples of executions by lethal injection may be cited as illustrations of humanity, not unlike the act of kindness that pet owners may have to authorise. Far more terrible may, in the minds of such people, be the locking of a person in a cage-like cell for the rest of his life, perhaps several decades. Even opponents of the death penalty may not protest very loudly when those who commit hideous crimes are executed in jurisdictions where that is lawful. Absolute opposition may, in such cases, tend to be softened by relativist views.

In R (on the Application of Wellington) v Secretary of State for the Home Department [2008] UKHL 72 (10 December 2008) the issue was whether extradition of the applicant to Missouri, where he was wanted for trial for two murders, would breach article 3 of the ECHR, the right not to be subjected to inhuman or degrading punishment, where if convicted he would be sentenced to life imprisonment without the possibility of release.

Three of the judges were relativists: Lord Hoffmann (para 27), Baroness Hale (48) and Lord Carswell (57). The absolutists were Lord Scott (40) and Lord Brown (86).

The relativist approach does not simply adopt as legitimate the punishments that are lawful in the foreign jurisdiction. There would be a breach of article 3 if extradition would give rise to a real risk of a punishment that "shocked the conscience" (Lord Hoffmann at 32, citing Ferras v United States) or would be clearly or grossly or obviously disproportionate (35 - 36). The point about relativism is that what might seem unacceptable in the UK may nevertheless be acceptable in the context of the foreign culture. The example cited was the prison practice of "slopping out" – making prisoners empty their own chamber pots: this had been held, by the Court of Session, to be inhuman in Scotland, whereas Lord Hoffmann pointed out that it might be normal in countries "where people who are not in prison often have to make do without flush lavatories" (27).

Underlying the relativist approach is the policy of preventing those accused of serious crimes from obtaining a refuge from justice – by resisting extradition – simply because their crimes deserved severe punishment. Baroness Hale (at 50, 51) referred to para 89 and 100 of Soering v United Kingdom (1989) 11 EHRR 439 in support of the view that all the circumstances of the particular case must be assessed in evaluating whether a likely punishment would be inhumane because the penalty must be relative, or proportionate, to the offence. Concluding that here extradition would not breach of article 3, she added (53):

"There are many justifications for subjecting a wrongdoer to a life in prison. It is not for us to impose a particular philosophy of punishment upon other countries."

Lord Carswell, the third relativist, also cited para 89 of Soering. He drew the following from Strasbourg jurisprudence (58):

"It has been held in Chahal and in Saadi v Italy (2008, Application no 37201/06, BAILII: [2008] ECHR 179 ) that the risks to the expelling state if such a person is not deported cannot be weighed against the risk of his ill-treatment in the receiving state: Saadi, para 138. If it is established that that ill-treatment would amount to torture or inhuman or degrading treatment, the prohibition is absolute: ibid, para 127. The passage which I have quoted from the judgment in Soering demonstrates that in extradition cases considerations founded upon the importance of extradition may legitimately be taken into account in determining whether the alleged offender's treatment would attain the minimum level of severity which would constitute inhuman or degrading treatment, an assessment which is relative: Saadi, para 134."

Saadi is blogged here: see entry for 25 July 2008.

I'm not sure that Lord Carswell is clarifying the point by citation of Saadi. One of the justifications for a severe sentence may be the need to protect society. The need to protect the UK cannot be a justification for concluding that the likely foreign sentence would not be inhuman: Saadi. It is the need to protect the foreign society that may justify the sentence likely to be imposed by that society. But the offender is resisting efforts to return him to that society. There may be cases where that reasoning makes sense (he might pose a risk to the foreign society from his base in the UK) but that was not the situation here. Any risk posed by the appellant to the UK was irrelevant to whether his sentence in Missouri would be inhumane, and while in the UK he posed no risk to Missouri.

Be that as it may, the relativist position can be summarised as, up to the point where we would regard a foreign sentence as unconscionable, what might be regarded as inhuman here may not be inhuman over there. It helps in understanding this to keep in mind the "slopping out" example. The weakness in the relativist position is shown by Lord Hoffmann's indication that he is not necessarily convinced that the "slopping out" illustration is a good one (27): "Whether, even in a domestic context, this attains the necessary level of severity is a point on which I would wish to reserve my opinion."

The trouble is that once you find an example of something that really would be inhuman treatment in the domestic jurisdiction, you should say it would be inhuman anywhere. This is the absolutist position of Lords Scott and Brown. Indeed, Lord Brown says this very thing at 88. The absolute position does have some awkwardness, because it purports not to impose Convention standards on other countries (86). Lord Scott seeks to avoid the difficulty by suggesting, at 42, that article 3 prescribes minimum standards, not norms, so that while "slopping out" may be below the norms acceptable in Scotland, that does not mean it is a breach of article 3.

All judges agreed that the likely punishment in Missouri was not inhuman and that in the circumstances of this case extradition would not involve a breach of article 3 of the Convention.

Strange to say, the Law Lords did not refer to their decision in R v Secretary of State for the Home Department, ex p Adam, blogged here 7 November 2005, in which the same right was held to be absolute.

DNA record retention

Retention by the police of information about a suspect can be a breach of the suspect's right to privacy: S and Marper v United Kingdom [2008] ECHR 1581 (4 December 2008).

This case concerns fingerprints and DNA samples taken by the police. Neither of the applicants was convicted and both requested destruction of these records. The police refused.

The Grand Chamber held that retention of the information in such circumstances was a breach of the applicants' rights to privacy and that vindication was achieved by the Court's finding of a violation in view of the resulting obligation on the UK to secure the rights of the applicants and of persons in their position.

This decision applies to samples taken directly from suspects. That sort of information collection is now the subject of legislation in many jurisdictions. In New Zealand we have the Criminal Investigations (Bodily Samples) Act 1995. The bracketed words highlight its focus which is the obtaining of invasive intimate samples, if necessary by force; it does not provide a code for the obtaining of such information by other non-invasive means: R v Cooper CA381/00, 19/2/01. DNA from clothing seized during execution of a search warrant was used in that case to establish that the accused was the father of the victim and of her child. The Court of Appeal held that this investigatory technique was not unreasonable, and also that it was lawful, meaning that the Act did not apply to this means of gathering information.

There is in NZ no regulatory regime governing the retention and destruction of information obtained by indirect means such as those used in Cooper. Obviously, where the suspect is convicted, permanent retention of the information may be justified, as it is under the Act for convictions of specified offences. But for people like the applicants in S and Marper, more rules are needed.

Discuss: no case or no chance?

When should a judge prevent a prosecution case from continuing and discharge the accused for lack of evidence?

The "no case" submission was addressed in DPP v Varlack [2008] UKPC 56 (1 December 2008). This was a case in which the prosecution had relied on inferences, rather than on direct evidence of involvement in a murder.

There is potential in this subject for confusion of a number of threads. One thread is what the judge must decide in ruling on a no case submission. Another is how the jury must be directed on inferences. Another is how an appellate court decides whether an error may have deprived the accused of a real chance of a more favourable verdict.

In Varlack the Privy Council endorsed a statement of the law by King CJ in Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1, 5, which included the following:

"It is not [the judge's] concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence ... ."

So, never mind how the jury will be directed about inferences of innocence, and never mind about how an appellate court will view a conviction. It is beside the point on a no case submission that the judge will tell the jury that they cannot convict if they think there is a reasonable inference that prevents an essential element of the prosecution case from being established to the necessary standard.

But it is relevant on a no case submission that the judge considers that the evidence on an element of the offence is so inherently weak or vague that a reasonable jury properly directed could not convict. It is only in that class of case, where the evidence is tenuous, that the judge's assessment of the acceptability of the prosecution evidence is relevant to the no case issue.

That is because questions of fact are for the tribunal of fact. On a no case submission, if the evidence is not inherently weak or vague, the judge has to decide whether the evidence is adequate. Adequacy is a question of law. It does not require anticipating what the jury will decide. A case is adequate, in this sense of overcoming a no case submission if, to quote the "canonical statement of the law" by Lord Lane CJ in R v Galbraith [1981] 1 WLR 1039, 1042 cited in Varlack at 21:

"... a reasonable jury properly directed could on that evidence find the charge in question proved beyond reasonable doubt."

King CJ elaborated, in the passage quoted by the Privy Council at 22 of Varlack:

"I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence."

So, as the Board put it at para 23, the test is what inferences a reasonable jury properly directed might draw, as distinct from what inferences the judge (or the Court of Appeal) thought could or could not be drawn.

You may think that here there are moments of clarity, rapidly followed by periods of obscurity. The point to remember is that the facts are for the jury to determine except in cases where the evidence is inherently weak or vague.

The position was summarised in R v Harder 29/5/03, Williams J, HC Auckland T002481:

"A conviction will be unsafe within the terms of the authorities only rarely and only where the 'necessary minimum evidence to establish the facts of the crime has not been called' so that the elements have not been proved or in the rare case where the evidence is plainly so inadequate and threadbare or the witnesses so discredited that the trial Judge concludes that a conviction must necessarily be unsafe and the interests of justice therefore compel discharge."

I think the position would be clarified by this sort of omission of reference to the jury. The issues are whether there is evidence on each element of the case, and whether any of that evidence is plainly so inadequate and threadbare or the witnesses so discredited that the trial Judge concludes that a conviction must necessarily be unsafe and the interests of justice therefore compel discharge.

In Varlack the Board held that the trial judge had correctly rejected the no case submission, and the respondent's conviction was restored. On another point, it held that a good character direction should have been given even though the accused's defence involved admissions of bad conduct, but that here the omission of that direction had made insufficient difference to the trial to affect the verdict.

For the sake of a bit of mental exercise, one might compare the law on no case submissions to that on applications of the proviso. The latter, insofar as relevant here, involves considering whether, in the absence of an error that occurred at trial, the jury could have acquitted the accused. So whereas the no case issue is whether the jury could convict, the proviso issue is whether the jury could acquit.

As can be seen from the cases on the proviso (see Index to this site, entries under "Proviso" and "substantial miscarriage of justice"), the courts are not of one mind on how to decide whether a jury could acquit. Again, the difficulties arise from the court having to decide what a jury could do.

Just for the sake of tossing around ideas, what if the appellate court's task were to be seen as deciding whether there is a defence case that should go to a jury? The error at trial would have to link to the defence case, but, assuming it did, should the court quash a conviction and order a retrial if there is a defence case that is not tenuous (inherently weak or vague)? Each side should meet the same criteria of adequacy on the question of whether its case should go to the jury, whether before or at trial (prosecution case considered by the judge) or by way of retrial (defence case considered on appeal). Discuss.

Breach of right to legal advice

Failure by the police to advise a suspect – now the accused - of his right to legal advice can result in exclusion of evidence against him. This exclusion might also extend to evidence of things found as a consequence of what he said. That, while exciting, is not the thing that interests jurists. They are interested in the basis for exclusion of that evidence.

Is the basis for exclusion the need to ensure a fair trial, or is it the need to uphold broader policies such as the need to maintain control over the conduct of agents of the state and to prevent the administration of justice being brought into disrepute?

Why does the difference between these bases for exclusion matter? Because a different form of decision process is appropriate to each. On the one hand, there are decisions that proceed by way of application of rules. In these, if the right has been breached, exclusion of the tainted evidence is an automatic consequence. On the other hand, there are decisions that involve a balancing of competing interests. In these, the seriousness of a breach of the right is weighed against the public interest in holding the accused responsible for the alleged wrongdoing, and the balance is determined by applying a criterion of proportionality: whether exclusion of the tainted evidence would be a proportionate response by the court to the seriousness of the breach in this case.

The right to a fair trial is an absolute right, and it seems inapt to apply to it a decision process that involves balancing of competing interests. So it is necessary to know whether breach of the right gives rise to fair trial concerns, or to wider public policy concerns.

Cases noted here in previous blogs illustrate the different approaches. See the Index
, and in particular Carr v Western Australia (HCA,blogged 25 October 2007), R v Singh (SCC, 2 November 2007), and Gafgen v Germany (ECtHR, 3 July 2008).

In Salduz v Turkey [2008] ECtHR 1542 (27 November 2008) the Grand Chamber addressed the consequences of a breach of this right (para 55):

"...the Court finds that in order for the right to a fair trial to remain sufficiently "practical and effective" ... Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction - whatever its justification - must not unduly prejudice the rights of the accused under Article 6 ... . The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction."

This indicates some qualification on the need to give the suspect the information about his right to legal advice ("... as a rule ... unless ... compelling reasons to restrict this right"), and if the circumstances of the case are such that the right has been breached this means that there would be "in principle" irretrievable prejudice if the evidence is admitted. This comes close to a rule of exclusion. It would be a rule if the Court had said "The rights of the defence will, as a matter of principle be irretrievably prejudiced ...".

Supporting the view that the Court was not laying down a rule are the points made when the Court applies the "principles" to the present case (para 56 - 63). These are rather confusing as they include comments on matters the Court does not have to decide (58) and they refer to the applicant's youthfulness while also noting that the police procedure was being applied to everyone (60, 61). The Court focuses on how the breach of rights affected the applicant's trial (57, 58), in particular noting that the trial court treated the tainted statement as central evidence which other evidence in the case confirmed. This approach does not look like the application of a rule of exclusion.

If the decision process is not the application of a rule, it is not necessary to refer to breach of the right as going to the fairness of the trial. Policy fairness, not trial fairness, should be the context for the decision. However the Court, without defining trial fairness, considered that this breach did go to trial fairness.

I do not suggest that trial fairness is necessarily the wrong basis for the admissibility decision. A fair trial is one where the law is accurately applied to facts determined impartially. It could be argued that absence of legal advice might give rise to an unreliable statement, so that if the court relied on it that would skew the proceedings by causing partiality (giving improper weight to prosecution evidence). It could even be argued that such a statement would not be voluntary in the sense that the law requires, and that the use of such evidence would be of questionable reliability and would similarly render the trial partial.

The trouble with that view, focused as it is on the proper weight of the tainted evidence, is that questions of the weight of the evidence are usually for the tribunal of fact once the evidence is admissible. A coerced confession is not necessarily unreliable. Its rejection by the court is really a matter of public policy.

Courts in New Zealand tend to justify exclusion of evidence tainted by breach of the right to legal advice on unreliability grounds (see the cases mentioned in Fig 4 of my draft paper on improperly obtained evidence). Nevertheless, as that paper shows, the pattern of decisions follows that of decisions based on balancing of competing values. It seems to be a matter of the right results for the wrong reasons.

Issue estoppel: rule or discretion?

What place do rules have in modern evidence law?

Should the admissibility of evidence of prior misconduct, for which the accused has been tried and acquitted, be determined by a rule, such as issue estoppel, or by a discretion?

That was the main issue in R v Mahalingan [2008] SCC 63 (14 November 2008).

Before looking at how this was addressed in that case, it is worth recalling that the rules of evidence should promote the ascertainment of the truth, that a trial must be fair to the accused but fairness to the prosecution is also important although not overriding, and that evidence of an alleged fact does not have to establish that fact beyond reasonable doubt before it is admissible as part of the case for either side.

This last point is illustrated by Bayes' Theorem.

In Mahalingan the Supreme Court unanimously ordered a retrial on aggravated assault. After the original trial on that charge the accused had been acquitted of attempting to pervert the course of justice, it having been alleged that he had telephoned a witness before the aggravated assault trial and tried to persuade that person not to incriminate him. Should evidence of that alleged telephone conversation be admissible at the retrial on the aggravated assault?

The minority (Deschamps, Abella and Charron JJ) approached this consistently with the propositions about the law of evidence that I have set out above. To be admissible, the evidence of the telephone call need only be established on the balance of probabilities (166).

That standard is applied as a matter of policy, and is not a requirement of logic, as Bayes' Theorem demonstrates.

The minority rejected an argument that the rule concerning issue estoppel should apply in criminal law. Various reasons for this rejection were advanced by Charron J, who delivered the joint judgment of the dissenters. Most importantly she held that (132):

"The application of issue estoppel as an absolute rule precluding the admission of prior acquittal evidence in all cases regardless of context is inconsistent with the basic rule favouring the admission of all relevant evidence, subject to countervailing concerns."

The countervailing concerns are adequately expressed in existing concepts and provisions: abuse of process, character evidence admissibility, rules against multiple convictions and collateral attack, and the pleas of autrefois acquit and autrefois convict; s 11(h) of the Charter is also relevant (84). Such of those matters as were relevant would be considered by the judge at the retrial, and the evidence was not rendered inadmissible by issue estoppel which is only an appropriate rule for civil cases.

McLachlin CJ delivered the judgment of herself and Binnie, LeBel, Fish and Rothstein JJ. Issue estoppel is retained in criminal law but in a revised form (to correct its drift into difficulty) so that it now precludes the prosecution from relitigating an issue that has been resolved in the accused's favour in a previous criminal proceeding, whether on the basis of a positive fact finding or on a reasonable doubt (2, 22, 26).

The policies behind this are the desirability of avoiding inconsistent verdicts, the need to uphold the principle of finality, and the need to ensure fairness to the accused.

This last matter, fairness to the accused, does not mean fairness in the sense of a fair trial, but rather it means fairness in the public policy sense. The Chief Justice elaborated her use of the expression "fairness to the accused" at 39:

"In my view, it is clear that fairness to the accused requires that an accused should not be called upon to answer allegations of law or fact already resolved in his or her favour by a judicial determination on the merits. This is the most compelling rationale for retaining issue estoppel in criminal law, as it goes to the core tenets of our criminal justice system. The state has the right to charge an accused and to prove the facts at a trial of the charge. If a judge or jury conclusively decides a fact in favour of the accused, including via a finding of a reasonable doubt on an issue, then the accused should not be required in a subsequent proceeding to answer the same allegation. To require, in effect, a second defence of the issue would be to violate the fundamental function of res judicata."

This requires a determination, in each case, of whether the issue in question has been previously decided in the accused's favour (33):

"Only issues that were either necessarily resolved in favour of the accused as part of the acquittal, or on which findings were made (even if on the basis of reasonable doubt) are estopped."

That, I suggest, will operate capriciously. The accused has the burden of showing that the issue was decided in his favour (23), and his ability to meet this burden may depend on what he was previously charged with, and how many issues he raised at the earlier trial. He might diminish his chances of successfully relying on issue estoppel if he raised multiple issues, even though a genuinely innocent accused would put everything in issue.

In New Zealand we have crept away from issue estoppel in criminal law: R v Davis [1982] 1 NZLR 584 (CA), Bryant v Collector of Customs [1984] 1 NZLR 280 (CA), R v Coombs [1985] 1 NZLR 318 (CA), R v Fatu [1989] 3 NZLR 419 (CA), R v Degnan [2001] 1 NZLR 280 (CA), Fox v A-G [2002] 3 NZLR 62 (CA). See also Z v Dental Complaints Assessment Committee [2008] NZSC 55 (blogged here 25 July 2008) especially at paras 57-59, 125-127, for discussion of the use of criminally determined matters in civil proceedings, a topic also addressed in abuse of process terms, without reference to issue estoppel. That trend suggests that the minority approach in Mahalingan would be favoured here. We have regarded the jurisdiction to prevent an abuse of process by, inter alia, excluding evidence on public policy grounds, as a potentially powerful means of ensuring fairness in the wider sense. This contrasts with the majority judgment in Mahalingan, where abuse of process was described as a broad, somewhat vague concept that varies with the eye of the beholder, reserved for obviously egregious abuses of the Crown power, to be relied on successfully only extremely rarely (42):

"To protect parties from relitigation, abuse of process would need to be cast in a less discretionary form than it now takes. Therefore, considering the high threshold for proof and the unpredictability of its operation, it is unlikely that the doctrine of abuse of process adequately achieves the fairness goal that underlies the doctrine of issue estoppel."

That may reflect the emaciated form of the abuse of process jurisdiction in Canada. In other legal systems it may be relatively (I feel I am entitled to use the word "relatively" in view of my recent brush with smugness) strong and an adequate substitute for the rule against issue estoppel.

I should add, lest I be accused of regarding Canadian law as unduly flaccid, that the Charter provides the remedy of discretionary exclusion (s 24(2)) in terms that will usually make resort to the common law unnecessary: R v O’Connor (1995) 103 CCC(3d) 1 (SCC) per L’Heureux-Dube J at para 70-72. Under s 24(2) the determination is whether admission of evidence obtained in a manner that infringed or denied a Charter right or freedom would bring the administration of justice into disrepute. Common themes had been evident between the common law and Charter jurisprudence. For example, in R v Mack (1990) 44 CCC(3d) 513 (SCC) Lamer J, for the Court, addressed police conduct of an investigation that amounted to entrapment, and held that admitting evidence obtained through such conduct would bring the administration of justice into disrepute. He noted (para 77) that the same principle applied with respect to the common law doctrine of abuse of process. The dominance of the Charter does not render irrelevant Lamer J’s statement of basic principles in Mack.

Nevertheless, the majority in Mahalingan seem to distrust the usefulness of abuse of process. True it is that criticisms for vagueness can always be levelled at concepts that can only be expressed in general terms. Harmless fun can be had in making such criticisms, as occurred in argument in Ngan v R SC8/2007, 14 August 2007 at pp 32-33 (jibes which misfire, as the “high sounding principles” in the Charter are also in the New Zealand Bill of Rights Act 1990). And Blanchard J, the jester in that argument, set out his own general principles in R v Shaheed [2002] 2 NZLR 377 (CA) in defining the criterion for discretionary exclusion of improperly obtained evidence, a formulation that has been adopted in s 30(2)(b) Evidence Act 2006[NZ]: “...determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.” [emphasis added; cf para 156 of Shaheed]

Judges do have a sense of what such general concepts mean. As cases applying them accumulate, patterns emerge and these aid the prediction of how the general concepts will work in particular instances.

Exclusion of improperly obtained evidence

Users of my method for analysing discretionary exclusion of improperly obtained evidence will be interested to see that in R v Horsfall [2008] NZCA 449 (30 October 2008) the Court ruled inadmissible evidence obtained through an improperly conducted search where the offending had attracted a sentence of over 4 years imprisonment. I have included this in my draft paper.

I could do it in my sleep

Does it matter that the judge sleeps during significant parts of a trial? What if there is a jury, can the judge sleep longer? What if the judge is alert for most of the time, and only misses some bits of evidence, through sleep or conscious inattention?

In Cesan v R [2008] HCA 52 (6 November 2008) the High Court of Australia considered two appeals against convictions that had resulted at a trial by jury where the judge's sleeping had distracted the jury. French CJ summarised the facts (94):

"In this case the facts ... indicated a substantial failure of the judicial process. The trial judge was asleep on a number of occasions on the 11 days when evidence was being given. He slept at least once on most of those days and on some days on two or three occasions. Some of the sleep episodes, possibly between two and five, lasted from 10 to 15 minutes. Most lasted between two and 10 minutes. The judge's sleeping was accompanied by heavy breathing on a number of occasions and he snored when Cesan was giving his evidence. This was disruptive and caused Cesan to look around at the trial judge. The judge also slept through parts of [the other accused] Mas Rivadavia's evidence. The jury was distracted by the judge's sleep episodes and some of the jury members found his behaviour amusing and even emulated it."

It was sufficient for French CJ that there was an appearance of injustice. This made the likelihood of convictions irrelevant (97). The flaw in the proceedings had been fundamental and incurable. It was a miscarriage of justice by failure of the judicial process, constituted by the judge's substantial failure to maintain the necessary supervision and control of the trial (96). Therefore the proviso could not be applied.

That straightforward reasoning, which separates procedural fairness from the question of the likelihood of the convictions being justified on the evidence, was not adopted by the other members of the Court.

A joint judgment was delivered by Hayne, Crennan and Kiefel JJ, with whom Gummow J and Heydon J agreed. These reasons stress (104, 110) that established principles are being relied on. This, in effect, means that the obscure approach laid down in Weiss v R (blogged here 16 January 2006) is going to make this difficult.

And it does. The joint judgment reasons that because the jury were distracted it is not possible to conclude from the written record of the trial that guilt was proved beyond reasonable doubt (127). That non sequitur, repeated at 130, emerges from an attempt to apply the Weiss approach of perceiving the likelihood of guilt as it appears from the record of evidence but also taking into account the verdicts.

It is difficult to see why the verdicts should be of assistance to an appellate court in the task of reviewing the adequacy of the evidence, given that the jury were misled in some way – usually by a misdirection on the law, or by inadmissible evidence, or as here by judicial slumber.

It would have been preferable for Gummow J, instead of simply agreeing (107) with the joint judgment's approach to the proviso, to have taken the line he took in AK v Western Australia (blogged here 27 March 2008), reasoning that this miscarriage was substantial and there was no need to ask if the accuseds were guilty. The absence of reasons in the judge alone trial in AK is not all that far removed from the absence of juror attention to the evidence here.

In Cesan the majority took one approach to the proviso, namely that it cannot be applied where the court cannot conclude that the convictions were supported by the evidence (127). The other generally accepted reason for not applying it – procedural unfairness at trial regardless of the likelihood of guilt – provides a more straightforward reason, as French CJ demonstrated, for ordering a retrial of each appellant.

Overkill

By laying too many charges the prosecution may give the accused a get-out-of-jail-free card.

This happened in R v JF [2008] SCC 60 (31 October 2008).

There was one death in this case, but the accused faced two charges of manslaughter. The jury convicted on the more serious, and acquitted on the lesser; this led the SCC to quash the conviction because the verdicts were inconsistent. The accused was left with two acquittals.

The accused's foster child had died as a result of injuries sustained at the hands of the accused's wife, who pleaded guilty to manslaughter. The two charges brought against the accused were

1. Manslaughter by criminal negligence;
   
2. Manslaughter by failure to provide the necessaries of life.
   

Deschamps J was the sole dissenting judge. She was able to perceive a distinction between the elements of the charges that provided a basis for the different verdicts. This distinction is the kind of thing that (in my view) you can persuade yourself you can see if you don't look directly at it, but as soon as you do it seems insubstantial. The jury may have had a reasonable doubt on the second charge, she reasoned, because they did not accept the Crown had proved an element peculiar to it, namely that the accused's failure had the effect of endangering V's life or of causing permanent endangerment to his health.

Deschamps J's judgment illustrates how a complicated explanation is unlikely to be convincing. Look at paras 73 and 74. Given that the jury concluded that the Crown had not proved that the accused's failure to provide the necessaries of life had endangered V's life, or caused or likely caused his health to be endangered permanently, how could the jury then conclude that on manslaughter by criminal negligence his marked and substantial departure from what a reasonable parent would do in the circumstances caused V's death?

On the first charge, the jury found (and correctly so in Deschamps J's opinion) that the accused should have been alert to the risk to V's safety.

Fish J delivered the judgment of himself, McLachlin CJ, Binnie, Abella, Charron and Rothstein JJ. The verdicts were inconsistent because each charge required proof that the accused had failed in his duty to protect V. The real distinction between the charges was, as Fish J said at 11, that in the present context the criminal negligence charge requires a marked and substantial departure from the conduct of a reasonably prudent parent, whereas the other charge simply requires a marked departure.

The second charge had the lesser degree of fault, and acquittal on it meant that the jury could not have found proved the higher degree of fault in the first charge. The jury should have considered the first charge only if it found the second proved.

Juries may well be more pragmatic that the law permits. There is a niggling possibility here that the jury simply thought that there should be one conviction, which should be for the more serious charge.

The Crown should have put its case to the jury in the way indicated by Fish J: first consider the charge of manslaughter by failure to provide the necessaries of life. If the verdict on that is guilty, then consider the charge of manslaughter by criminal negligence. If the verdict on the failure to provide the necessaries charge is not guilty, then the verdict on the criminal negligence charge must also be not guilty. Since it did not do this, the Crown lost on both.

The law appears to be different in New Zealand, where the charges would both require the same "major departure" from the standard of care expected of a reasonable person: s 150A, 160(2)(a) and (b) Crimes Act 1961 and R v Powell [2002] 1 NZLR 666 (CA), so they could not be put in the way indicated in R v JF. In such a case it would be necessary to make clear what the difference between the charges was alleged to be, otherwise only one could be left to the jury.

Reducing convictions

If juror ignorance about the meaning of "beyond reasonable doubt" had the effect of causing too many acquittals, you can be sure something would be done to improve judicial directions on the point.

The New South Wales Bureau of Crime Statistics and Research, in Bulletin No 119 (September 2008) "Juror Understanding of Judicial Instructions in Criminal Trials" by Lily Trimboli, concludes on this topic:

"The problems in juror understanding ... do not all stem from the way judges give instructions. It is assumed at common law that the phrase 'beyond reasonable doubt' requires no explanation and is readily understood by most ordinary people. Appeal courts have, for this reason, repeatedly warned trial court judges (see Green v The Queen (1971) 126 CLR 28, 32-33) not to attempt to clarify the phrase when explaining its importance to juries. The present study shows, however, that there is considerable divergence among jurors about the meaning of 'beyond reasonable doubt'. Around half (55.4%) of the jurors surveyed, believed that the phrase 'beyond reasonable doubt' means 'sure [that] the person is guilty'; 22.9 per cent believed that the phrase means 'almost sure' the person is guilty; 11.6 per cent believed that it meant 'very likely' the person is guilty; and 10.1 per cent believed it meant 'pretty likely' the person is guilty. This is quite a wide spread of opinion and it suggests that some clarification of the threshold for convicting a person would be of assistance to juries. While statutory clarification of the phrase 'beyond reasonable doubt' may be controversial, one relatively simple change that could be made to improve current practice would be to provide written materials to the jury to assist in their deliberations."

A perfectly sensible suggestion, but what should a written instruction say?

In discussing R v Wanhalla (25 August 2006) I noted the Court of Appeal's reluctance to mathematise the concept of proof beyond reasonable doubt by expressing it as a probability of guilt. I suppose that people vary in their understanding of "sure", "almost sure" and "very likely". The survey does not seem to have attempted to establish a way of ranking those words against a common reference, other than the phrase beyond reasonable doubt itself. If the jurors in the survey had been asked to express "sure", "almost sure", "very likely" and "pretty likely" as probabilities a recommendation could have been made as to the usefulness of directing juries in terms of probabilities.

The question in the survey was put as "In your view, does the phrase 'beyond reasonable doubt' mean pretty likely the person is guilty/very likely the person is guilty/almost sure the person is guilty/sure the person is guilty?"

What is clear is that there are likely to be too many convictions because of juror misunderstanding of the standard of proof. Progress in rectifying this seems to be painfully slow; such dragging of the feet by officialdom (I use this awful word to avoid using another awful word) would not occur if there were too many acquittals.

See also on this, Jeremy Gans ....

Over-zealous handcuffing

One of the limitations of only looking at the decisions of the senior appellate courts is that sometimes first instance decisions that perfectly illustrate significant principles are missed.

Thanks to this excellent Canadian blog our attention is directed to this decision of the Provincial Court of Alberta: R v Ogertschnig[2008] ABPC 293 (16 October 2008).

On a charge of refusing to supply a sample of breath, the judge found (14):

"I am satisfied on balance that the accused had been fully cooperative with Officer Renaud and had unhesitatingly agreed to provide a roadside sample. I find that when he exited his vehicle to do so, he was thereupon immediately handcuffed by Officer Renaud and pushed towards the police vehicle, approximately fifty feet away, and shoved into the back while handcuffed. During the process of placing him in the back of the police vehicle, the brim of the accused's hat was pushed down low onto his forehead, thereby impairing his vision other than in a downward direction."

Three independent reasons supported dismissal of this charge: insufficient grounds for requiring the breath sample, reasonable excuse for refusal to provide the sample arising from the improper use of handcuffs, and – of particular interest here – a breach of s 7 of the Charter, concerning liberty and security of the person, which constituted grounds for excluding the evidence of the defendant's refusal to supply the sample of breath.

Here there was a causal and temporal connection between the unlawful arrest and the refusal to supply the sample. It is clear that if, on different facts, there had been no causal connection but only a temporal one, the evidence could still have been excluded: R v Wittwer (blogged here 6 June 2008). An illustration would be where the improperly handcuffed driver continued his cooperation with the procedures, as occurred in the New Zealand case Police v Chadwick [2002] DCR 880. The handcuffing did not cause the evidence to be obtained, but there was a temporal and contextual connection.

I have discussed Wittwer and Chadwick in Misuse of Drugs at para 1300, as follows:

"The exclusion of evidence that was obtained improperly is now governed by s 30 Evidence Act 2006. Other provisions of the Act are concerned with exclusion of unreliable statements: s 28, and exclusion of statements influenced by oppression: s 29. Those provisions operate when there is a causal connection between impropriety, or a source of unreliability, or a source of influence of oppression, and the obtaining of the challenged evidence. Outside of such causal nexus, the public policy discretion is likely to remain: s 11 Evidence Act 2006. Occasions where there is a nexus, other than of a causal nature, are where there is a temporal or contextual association between an impropriety and the obtaining of the evidence, as illustrated in R v Wittwer ... . In Police v Chadwick [2002] DCR 880 the charge of driving with excess blood alcohol was dismissed because of improper use of handcuffs after the defendant had failed a breath test, but before the blood sample was taken; here the impropriety did not cause the obtaining of the blood test result, as the defendant was "co-operating to the full" (para 15), but it was sufficiently serious – illegal, unreasonable, and in breach of s 23(5) New Zealand Bill of Rights Act 1990 - for the evidence to be excluded and the charge to be dismissed on policy grounds. This conclusion was reached upon consideration of Shaheed[[2002] 2 NZLR 377; (2002) 19 CRNZ 165]... . If Chadwick had been decided after the commencement of the Evidence Act 2006 it would still be a case of contextual impropriety, not within the scope of the Act, where the public policy discretion involved a balancing exercise that is essentially the same as that which is provided for in s 30."

Ogertschnig illustrates how lawful resistance to improperly imposed restraint can result in exclusion of evidence, and Chadwick illustrates the common law exclusion of evidence tainted by impropriety, a remedy that should continue to exist notwithstanding the enactment of the discretion to exclude evidence where there is a causal connection between the impropriety and the obtaining of the evidence.

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.