June hiatus

Your blogger is on vacation. Back in July.

Evidence Bill (5)

What assistance in interpreting the proposed evidence legislation will the courts be able to obtain from the common law?

In the absence of any statement from the Attorney-General to Parliament that the Evidence Bill conflicts with the Bill of Rights, it is reasonable to expect that ambiguities and obscurities of the kind discussed in previous blog entries in this series may be resolved by courts with the assistance of cases interpreting the Bill of rights. An example is the relative importance of fairness to the accused, as compared with fairness to the prosecution or fairness to a witness. Given the origins of the Evidence Bill in the Law Commission’s proposed Evidence Code, we are justified in having some suspicions about the Evidence Bill’s claims about its own status.

Clause 5 gives a starting point from which this topic can be explored:

5 Application
(1) If there is an inconsistency between the provisions of this Act and any other enactment, the provisions of that other enactment prevail, unless this Act provides otherwise.

The question is, therefore, is there some other provision in this Bill that overrides the Bill of Rights and the law that has evolved interpreting the Bill of Rights? Clause 10 refers to the common law:

10 Interpretation of Act
(1) This Act---
(a) must be interpreted in a way that promotes its purpose and principles; and
(b) is not subject to any rule that statutes in derogation of the common law should be strictly construed; but
(c) may be interpreted having regard to the common law, but only to the extent that the common law is consistent with---
(i) its provisions; and
(ii) the promotion of its purpose and its principles; and
(iii)the application of the rule in section 12.
(2) Subsection (1) does not affect the application of the Interpretation Act 1999 to this Act.

Accordingly, to decide whether the right of the accused to a fair trial takes precedence over the right of the prosecution to a fair trial, we may have regard to the common law (which has established the primacy of the accused’s right to a fair trial), and then qualify that position if required to do so by the provisions of the Evidence Bill. If, then, the Evidence Bill does not state what the relationship of these rights is, the common law would apparently remain operative.
This appears to be consistent with clause 12:

12 Evidential matters not provided for
If there is no provision in this Act or any other enactment regulating the admission of any particular evidence or the relevant provisions deal with that question only in part, decisions about the admission of that evidence---
(a) must be made having regard to the purpose and the principles set out in sections 6 to 8; and
(b) to the extent that the common law is consistent with the promotion of that purpose and those principles and is relevant to the decisions to be taken, must be made having regard to the common law.

Thus the problem we are concerned with has to be resolved by the common law, to the extent that it is consistent with the purposes and principles in cl 6 to 8. The relevant provision here is cl 6:

6 Purpose
The purpose of this Act is to help secure the just determination of proceedings by---
… (b) promoting fairness to parties and witnesses

Although the point is arguable, this legislative purpose is not necessarily inconsistent with the common law’s ranking of the importance of the interests in a fair trial.

[Update: the Evidence Bill, in a revised form, was enacted in November 2006 as the Evidence Act 2006, its provisions to come into force at dates to be specified by the Governor-General in Council. The purposes of the Act, in s 6, have been expanded to include "providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990". This makes it clear that the Evidence Act is to be interpreted to give effect to the accused's absolute right to a fair trial.]

Another area in which the common law may remain important is the reliability of hearsay evidence. The common law developed the rule against hearsay, and its exceptions, in an effort to ensure that relevant evidence is reliable. Reliability is also of central concern to the Evidence Bill’s proposed reform of the law concerning hearsay. In particular, cl 18 provides:

18 Admissibility of hearsay
(1) A hearsay statement is admissible in any proceeding if---
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; …

What, for example, will be the status of the common law rules concerning the hearsay statements of those who act in concert with the accused in pursuance of a pre-arranged plan? These rules are referred to by various names, in particular as the pre-concert exception, and they apply not just to conspiracy cases, but also to any case where the hearsay statement was made by a person apparently in pursuance of a common plan.

In Canada, where the pre-concert exception has been stated in more precise terms than it has in New Zealand, the Supreme Court has recently held that these rules are in fact reliability rules, applicable under the reformed hearsay law: R v Mapara [2005] SCC 23 (27 April 2005). It is therefore likely that if the Evidence Bill is enacted in its present form in this respect, the common law pre-concert rules would remain applicable and could continue to be developed.

Evidence Bill (4)

The need to avoid a substantial miscarriage of justice is the pervasive criterion for the correctness of decisions, considered individually and collectively, made by the trial judge. It is undoubtedly true, as Lord Rodger recently observed in relation to fairness, that the appellate court may have the advantage of a clearer perspective on whether a substantial miscarriage of justice has occurred: Holland v HM Advocate (Devolution) [2005] UKPC D1 (11 May 2005), para 41. It is therefore a natural, and widespread practice throughout the common law jurisdictions, for appellate courts to have to consider whether any miscarriage of justice that had occurred was indeed substantial. If it was not, appeals will be dismissed. Trial judges, absorbed in their task of trying to make the law work, will naturally bear in mind this ultimate criterion.

Substantial miscarriages of justice are currently seen as being of two types. The first arises where error at trial deprives the accused of a reasonable chance of an acquittal. This does not necessarily mean that the trial was unfair, as it includes situations of freshly obtained evidence which do not impugn the fairness of the trial, only the correctness of its result. Other examples of loss of a reasonable chance of acquittal may involve trial unfairness. The second type of substantial miscarriage of justice does invlove trial fairness. It includes cases where the course taken resulted in bias, actual or perceived, and cases where the trial was not according to law. In this second type of substantial miscarriage of justice, loss of a reasonable chance of acquittal is irrelevant, as even a person who is patently guilty is entitled to trial according to law: Randall v R [2002] UKPC 19 (16 April 2002); [2002] 1 WLR 2237 (PC), at 2251 para 28.

Thus the two elements, loss of a reasonable chance of acquittal, and loss of the right to a trial that is fair to the accused, are of primary importance. This should be reflected in the overarching provisions of evidence law.

In its application to criminal proceedings, the Evidence Bill falls short of recognising the primacy of these elements. Clause 6 states:

6 Purpose
The purpose of this Act is to help secure the just determination of proceedings by---
(a) providing for facts to be established by the application of logical rules; and
(b) promoting fairness to parties and witnesses; and
(c) protecting rights of confidentiality and other important public interests; and
(d) avoiding unjustifiable expense and delay.

The expression "fairness to parties and witnesses" does not recognise the ranking of the importance of fairness to the accused, to the prosecution, and to witnesses.

[Update: the Evidence Bill was enacted, in revised form, as the Evidence Act 2006. Its purposes have been expanded by inserting in s 6 the following purpose: "providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990". This requires the Courts to recognise the absolute nature of the accused's right to a fair trial.]

Again, cl 8, referred to in the second instalment of this series of blog entries, states:

8 General exclusion
In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will---
(a) have an unfairly prejudicial effect on the outcome of the proceeding; or
(b) needlessly prolong the proceeding.

This does not explain the point of view from which fairness is to be assessed. It is fairness to the accused that has primary importance.

[Update: the Evidence Act 2006, has a revised form of cl 8, adding the following as s 8(2): "In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence." This should, together with the reference to the Bill of Rights in s 6, above, incorporate the requirement that the trial must be fair to the accused into the weighing exercise, making it the overriding requirement.]

It is not clear that the inherent jurisdiction of the court to act so as to prevent an abuse of its process will come to the rescue of the primary elements:

11 Inherent powers not affected
(1) The powers inherent in a court to regulate and prevent abuse of its procedure are not affected by this Act except to the extent that this Act provides otherwise.
(2) Despite subsection (1) a court must have regard to the purpose and the principles set out in sections 6 to 8 when exercising inherent powers to regulate and prevent abuse of its procedure.

[Update: the Evidence Act 2006 replaces subclause (1) of cl 11 with the following, as s 11(1):
"(1) The inherent and implied powers of a court are not affected by this Act,
except to the extent that this Act provides otherwise."]

It is unsatisfactory for the fundamental elements to be obscured by this vagueness.

The relationship between the legislation and the common law powers to prevent abuse of process are clearer in the Australian uniform Evidence Act 1995 (C’th), s 11 of which provides:

General powers of a court
(1) The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment.
(2) In particular, the powers of a court with respect to abuse of process in a proceeding are not affected.

The Australian legislation, however, is also unsatisfactory in that its general provisions fail to distinguish fairness to the accused from fairness to the parties, and they give overarching importance to the flawed weighing of probative value against unfairly prejudicial effect (see the second blog entry in the present series).

It seems that the ideal legislative model has yet to be constructed. This is hardly surprising in this rapidly developing area of the common law. Many of the leading cases have been decided since the current project to revise our evidence law began.

Evidence Bill (3)

The third of the evidence topics requiring the exercise of judicial judgment is the method by which judges act to ensure the fairness of the trial for the accused. It is beyond dispute that the accused has the right to a fair trial, and that this right is essential, fundamental and absolute.

The need for fairness at trial may require the judge to give warnings to the jury about matters such as lies allegedly told by the accused; the risks associated with particular categories of witnesses such as accomplices, children, or people with impairments that may affect the reliability of their evidence; identification evidence; and delayed complaints about sexual matters.

I will consider here how the Bill addresses the subject of judicial warnings about the significance of lies allegedly told by the accused. The relevant provision is:

120 Judicial warnings about lies
(1) This section applies to evidence offered in a criminal proceeding that states a defendant has lied either before or during the proceeding.
(2) If evidence of a defendant's lie is offered in a criminal proceeding tried with a jury, the Judge is not obliged to give a specific direction as to what inference the jury may draw from that evidence.
(3) Despite subsection (2), if, in a criminal proceeding tried with a jury, the Judge is of the opinion that the jury may place undue weight on evidence of a defendant's lie, the Judge must warn the jury that---
(a) the jury must be satisfied before using the evidence that the defendant did lie; and
(b) people lie for various reasons; and
(c) the jury should not necessarily conclude that, just because the defendant lied, the defendant is guilty of the offence for which the defendant is being tried.
(4) In a criminal proceeding tried without a jury, the Judge must have regard to the matters set out in paragraphs (a) to (c) of subsection (3) before placing any weight on evidence of a defendant's lie.

The Bill departs from the Law Commission’s proposal in its Evidence Code, cl 110(3), by the omission of the requirement for a warning if the defence asks that one be given.

Potential shortcomings of these proposals are:

• Omission of a requirement for the judge to consult with counsel on the need for a lies direction before summing up. [Update: the Evidence Act 2006 revises this by inserting in subsection 3 the requirement that the Judge must give a lies warning if the defence so requests.]
• Omission of a requirement to direct the jury to ignore the alleged dishonesty unless they (ie jurors individually, not the jury collectively) are sure that the defendant lied. Clause 120(3)(a) does not indicate what the jury should do if they are not satisfied the defendant lied.
• Omission of a direction that the jury must be satisfied to the standard of beyond reasonable doubt that the defendant lied before they can take the dishonesty into account.
• Omission of the need to give illustrations of why people might lie for reasons that do not support the prosecution case: to bolster a true defence, to protect somebody else, to conceal some other conduct which is not the subject of the proceedings, panic, distress, confusion.
• Omission of a distinction between dishonesty that is only relevant on the issue of the defendant’s credibility, and dishonesty that lends support to the prosecution case.
• Omission of a direction that the dishonesty can only support the prosecution case if the jury is sure beyond reasonable doubt that there is no innocent reason for it.

I have drawn these "shortcomings" by comparison with the model directions issues by the Judicial Studies Board in the United Kingdom.

No one can deny that the topic of lies directions has been troublesome for judges. There is a risk that efforts to simplify will result in departure from what is appropriate.

One can see how difficult the subject is by looking at Zoneff v R (2000) 112 A Crim R 114 (HCA), where 4 judges held that the giving of a lies direction had been a substantial miscarriage of justice because it gave unfair emphasis to the alleged lies, while the fifth judge, dissenting, held that a lies direction should indeed have been given, but that it had been given wrongly here, although that error did not amount to a substantial miscarriage of justice.

My view is that Cl 120 of the Bill, if indeed the topic of lies is to be included, should be revised to conform to the practice in the United Kingdom, although a further point emerges: the UK legislation, the Criminal Justice Act 2003, does not deal with how juries should be directed about lies. The search for perfection continues, with the task of announcing the current best practice being that of the Judicial Studies Board. It is not yet the time to set this law in legislation. The Australian uniform Evidence Act 1995 (Cth) also omits specifying the contents of lies directions.

Treating correctly evidence that alleges the accused told lies can be vital to the fairness of trials. What is appropriate will vary with the circumstances of each case, and the matter may best be left for the judge to deal with as part of the task of ensuring that the trial is fair to the accused.

Evidence Bill (2)

The second area of admissibility requiring exercise of judgment has been traditionally formulated as the balancing of probative value against the risk of illegitimate prejudice to the accused that would arise as a result of admission of the challenged evidence. This formula is reflected in clause 8 of the Bill:

8 General exclusion
In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will---
(a) have an unfairly prejudicial effect on the outcome of the
proceeding; or
(b) needlessly prolong the proceeding.

The meanings of probative value and prejudicial effect are indicated in clause 39, which deals with a topic commonly the subject of such balancing, called at common law similar fact evidence:

39 Propensity evidence offered by prosecution about defendants
(1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
(2) When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.
(3) When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
(a) the frequency with which the acts, omissions, events, or
circumstances which are the subject of the evidence have occurred:
(b) the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(c) the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(d) the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f) the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.
(4) When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,---
(a) whether the evidence is likely to unfairly predispose the
fact-finder against the defendant; and
(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

The essence of illegitimately prejudicial evidence, as seen from cl 39(4) above, is that it deprives the accused of a fair trial, by causing bias or improper use of evidence.

The balancing of probative value against the risk of illegitimate prejudice has caused great difficulty in practice, because it is a fallacy to say that probative value is something that can be put in opposition to the accused’s right to a fair trial. These are not things that can be weighed against each other.

Useful guidance can be obtained from the recent evidence law reforms in England. Whereas the Law Commission of England and Wales, in its Report of October 2001, "Evidence of Bad Character in Criminal Proceedings", proposed a draft Bill containing , in clause 8, the weighing of risk of prejudice against probative value, that proposal was not enacted. The Criminal Justice Act 2003[UK], s 101(3), contains the revised law:

"The court must not admit evidence … if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

This avoids the fallacious weighing, although it may be accused of vagueness as to how much unfairness is sufficiently adverse to require exclusion of the evidence. That point will be considered in the next blog entry in this series on the Evidence Bill.

Evidence Bill (1)

The exercise of judgment is fundamental to the application of the rules of evidence. There are 4 areas in which judgment is critical:

 The decision whether to exercise the discretion to exclude evidence on public policy grounds. The focus here is on unreliable confessions, statements obtained by oppression, and other kinds of improperly obtained evidence.

 The decision whether to admit evidence that would otherwise be inadmissible, where its probative value outweighs the risk of illegitimate prejudice to the accused. Evidence of bad character is the prime example of evidence of this kind.

 Decisions that have to be made concerning the requirements of fairness. The choice is between excluding the evidence and admitting it with a warning to the jury about its dangers. Examples are evidence that is of questionable reliability, delayed complaints of sexual misconduct, evidence of children, identification evidence, and evidence that the accused has told lies.

 Decisions that have to be made with a view to avoiding a substantial miscarriage of justice. Usually an appellate court will be in a position to have a better perspective on this than will the trial judge, but nevertheless a trial judge will bear this requirement in mind throughout the trial. The need here is to avoid two kinds of errors: errors through which the accused improperly loses a chance of acquittal that should have been reasonably open, and errors which cause the jury to misapply the law to the facts.

I will consider, in separate blog entries, how each of these areas of judicial judgment are to operate under the Evidence Bill, which was introduced into Parliament this month. Today I begin with …

The Public Policy Decisions

The Bill sets out three rules: the unreliable statement rule (Clause 24), the oppression rule (cl 25) and the improperly obtained evidence rule (cl 26). The first two require the judge to evaluate the evidence on the relevant issue against the standard of either (cl 24(2)) the balance of probabilities, or (cl 25(2)) beyond reasonable doubt. The third, however, involves both judgment against a standard (the balance of probabilities: cl 26(2)(a)) and a balancing exercise to determine whether exclusion is proportionate to the impropriety: cl 26(2)(b).

24 Exclusion of unreliable statements

(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer a statement of a defendant if---
(a) the defendant or a co-defendant against whom the statement is offered raises, on the basis of an evidential foundation, the issue of the reliability of the statement and informs the Judge and the prosecution of the grounds for raising the issue; or

(b) the Judge raises the issue of the reliability of the statement and informs the prosecution of the grounds for raising the issue.

(2) The Judge must exclude the statement unless satisfied on the balance of probabilities---

(a) that the circumstances in which the statement was made were not likely to have adversely affected its reliability; or

(b) that the statement is true.

(3) However, subsection (2) does not have effect to exclude a statement made by a defendant if the statement is offered only as evidence of the physical, mental, or psychological condition of the defendant at the time the statement was made or as evidence of whether the statement was made.

(4) Without limiting the matters that a Judge may take into account for the purpose of applying subsection (2)(a), the Judge must, in each case, take into account any of the following matters that are relevant to the case:

(a) any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not); and

(b) any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not); and

(c) the nature of any questions put to the defendant and the manner and circumstances in which they were put; and

(d) the nature of any threat, promise, or representation made to the defendant or any other person.


25 Exclusion of statements influenced by oppression

(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer a statement of a defendant if---

(a) the defendant or a co-defendant against whom the statement is offered raises, on the basis of an evidential foundation, the issue of whether the statement was influenced by oppression and informs the Judge and the prosecution of the grounds for raising the issue; or

(b) the Judge raises the issue of whether the statement was influenced by oppression and informs the prosecution of the grounds for raising the issue.

(2) The Judge must exclude the statement unless satisfied beyond reasonable doubt that the statement was not influenced by oppression.

(3) For the purpose of applying this section, it is irrelevant whether or not the statement is true.

(4) Without limiting the matters that a Judge may take into account for the purpose of applying subsection (2), the Judge must, in each case, take into account any of the following matters that are relevant to the case:

(a) any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not); and

(b) any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not); and

(c) the nature of any questions put to the defendant and the manner and circumstances in which they were put; and

(d) the nature of any threat, promise, or representation made to the defendant or any other person.

(5) In this section, oppression means---

(a) oppressive, violent, inhuman, or degrading conduct towards, or treatment of, the defendant or another person; or

(b) a threat of conduct or treatment of that kind.


26 Improperly obtained evidence

(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if---

(a) the defendant or a co-defendant against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or

(b) the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.

(2) The Judge must---

(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and

(b) if the Judge finds that the evidence has been improperly obtained, 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.

(3) For the purposes of subsection (2), the court may, among any other matters, have regard to the following:

(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:

(b) the nature of the impropriety, in particular, whether it was
deliberate, reckless, or done in bad faith:

(c) the nature and quality of the improperly obtained evidence, in
particular whether it is central to the case of the prosecution:

(d) the seriousness of the offence with which the defendant is charged:

(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:

(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:

(g) whether the impropriety was necessary to avoid apprehended physical danger to the police or others:

(h) whether there was any urgency in obtaining the improperly obtained evidence.

(4) The Judge must exclude any improperly obtained evidence if, in
accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.

(5) For the purposes of this section, evidence is improperly obtained if it is obtained---

(a) in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or

(b) in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or

(c) unfairly.


Of interest here are the standards of proof specified for each decision. Clause 24 uses the balance of probabilities. The Law Commission has changed its stance: in the Evidence Code (NZLC R 55 vol 2) the corresponding clause, 27(2), used beyond reasonable doubt as the standard for excluding unreliability. Of course here “unreliability” is a shorthand way of referring to the question whether the circumstances in which the statement was obtained were likely to affect its reliability. This is distinct from the question of the actual reliability of the statement itself. There is therefore not the logical objection that otherwise would lie in the way of the criminal standard of proof applying (the objection would have been that if the statement was, beyond reasonable doubt, reliable, the ultimate issue would have been decided by the judge). Bearing in mind the point that the issue is the circumstances in which the evidence was obtained, the focus is on the propriety of the methods used to obtain it. The Bill does not insist on proof to the standard of beyond reasonable doubt that those who obtained the statement acted properly.

The criminal standard of proof is applied to the issue of absence of oppression in cl 25. This properly reflects the common law’s abhorrence of “third degree” interrogations.

The balance of probabilities is applied in cl 26 as a threshold that has to be met before the balancing exercise is undertaken. Unless the defence satisfies the judge on the balance of probabilities that there was impropriety in the obtaining of the evidence, there is no progression to the balancing exercise, and the evidence is not excluded on that ground. Use of the balance of probabilities here is a reflection of the commonly held view that any factual pre-conditions that have to be established before evidence is admissible need only be proved on the balance of probabilities. Early formulations of the now obsolete prima facie exclusion rule, that applied to evidence obtained in breach of the Bill of Rights, used the same standard of proof on the issue of whether there had been a breach. The prima facie exclusion rule was replaced in R v Shaheed [2002] 2 NZLR 377 (CA) by the balancing exercise which is reflected in cl 26(2)(b) and (3) of the Bill. Under Shaheed the balancing exercise was not expressly contingent on the satisfaction of any particular standard of proof applicable to the issue of whether there had been a breach of rights. In contrast, the Privy Council, in Mohammed v The State [1999] 2 AC 111, 123-124, held that where there is an issue of the breach of rights, the prosecution bears the burden of excluding such breach to the standard of beyond reasonable doubt, and that where the prosecution fails to achieve that, the balancing exercise must be undertaken (except where the breach is of the right to a fair trial, in which case the evidence is automatically excluded without balancing).

In these contexts, the standard of proof is an expression of how willing the court will be to look at the issue the defence seeks to raise. Oppression is, under the scheme in the Bill, the most eagerly examined. Unreliability and impropriety do not attract as much interest. The appropriateness of those thresholds for judicial interest is a matter over which people may well differ.

Proof and prejudice

To what extent can trial fairness be sacrificed to the need to establish the truth? The answer depends on whether the case is criminal or civil.

In civil cases, if the parties will not reach a settlement, the court must reach a result. This may mean proceeding to decision notwithstanding some unfairness. In such a case, if unfairness cannot be avoided, at least the court will try to minimise it, and to balance it so that while the trial may not be equally fair to each side, it could be (albeit rather cynically) called equally unfair to each side. The dominating concern in civil cases is to establish the truth insofar as that can be done in compliance with the rules of evidence.

Judges do not, naturally enough, spell this out as plainly as I have just done. Recently, Lord Bingham has referred to truth and fairness, in relation to civil trials, in O’Brien v Chief Constable of South Wales Police [2005] UKHL 26 (28 April 2005), at para 6:

"…In deciding whether evidence in a given case should be admitted the judge's overriding purpose will be to promote the ends of justice. But the judge must always bear in mind that justice requires not only that the right answer be given but also that it be achieved by a trial process which is fair to all parties."

This does not tell us whether impossibility of fairness to all parties prevents the right answer being found. Be that as it may, we are concerned here with criminal cases, and in criminal law, as it is applied in the common law jurisdictions, courts endeavour to balance competing interests.

The criminal law has multiple functions, and they include meeting official misconduct by the exclusion of improperly obtained evidence. In extreme cases a stay of proceedings may be ordered on grounds of public policy. Those grounds are not directly connected to the fairness of the trial. Another ground for excluding relevant evidence is that its probative value is exceeded by its illegitimately prejudicial effect. This latter ground is particularly problematic.

Its application may result in evidence that is highly probative being admitted notwithstanding the significant risk it brings of illegitimate prejudice. See, for a statement of the law, Lord Phillips in para 32 of O’Brien. Sections 101 to 106 of the Criminal Justice Act 2003[UK] now govern this discretion in the United Kingdom.

In criminal cases, the accused’s right to a fair trial is absolute, primary, and essential. This means that reasonable risks of illegitimate prejudice must be avoided. The probative value/prejudicial effect balancing decision needs to be "re-understood" in the light of developments in human rights law.

This crucial development in the law of criminal evidence is something I have written on elsewhere, and readers with robust stamina may wish to see: Mathias, "The Duty to Prevent an Abuse of Process by Staying Criminal Proceedings" in Robertson (ed) Essays on Criminal Law: A Tribute to Professor Gerald Orchard (Brookers, 2004), and Mathias, "Probative value, illegitimate prejudice and the accused’s right to a fair trial" (2005) 29 Crim LJ 8.

Common law rules and the proposed Evidence Code

The Supreme Court of Canada last week gave us a clue as to what approach to the admissibility of hearsay evidence in cases of conspiracy or pre-concert might be taken if the New Zealand Law Commission’s proposed Evidence Code is enacted: R v Mapara [2005] SCC 23 (27 April 2005).

Under the proposed Code, hearsay evidence is admissible in criminal proceedings if the circumstances in which it was obtained provide reasonable assurance that it is reliable: cl 19, and if procedural preliminaries to provide for the hearing of any admissibility challenge have been met.

The Code does not provide detail on the reliability criteria, so the question arises as to what will be the status under the Code of the common law rules that have developed to deal with the admissibility of hearsay statements of alleged co-conspirators, or of alleged participants in a joint enterprise (accomplices).

In Mapara, the Supreme Court of Canada held, 7 to 2, that the common law rules do provide sufficient assurance of reliability for there to be no need for a separate reliability decision (para 27), except in rare cases when the accused can point to evidence raising serious and real concerns as to reliability (para 30).

The relevant rules in Canada are similar to those that currently apply in New Zealand: there are three matters that have to be considered. The Canadian formulation of these, set out in R. v. Carter [1982] 1 S.C.R. 938, requires first, proof beyond reasonable doubt that there was a conspiracy or common design of the kind alleged; second, proof on the balance of probabilities and on non-hearsay evidence that the accused was a member of that conspiracy or common design; third, that the hearsay statement was made in furtherance of the conspiracy or common design.

It must be acknowledged that in New Zealand these rules have yet to achieve such clarity. There is a tendency to merge the first and second issues into a requirement that the accused be shown to have shared in a common purpose: eg R v Humphries [1982] 1 NZLR 353 (CA). Further, there is some wavering as to the standard of proof required for the second matter, some cases indicate that "reasonable evidence" is sufficient, while others require proof on the balance of probabilities. For the "reasonable evidence" requirement, see R v Karpavicius 12/9/00, Anderson J, HC Auckland T001037, para 17. For the balance of probabilities formulation see R v M 2/5/01, William Young J, HC Christchurch T14/01, at [51], although the Judge doubted that this was any more exacting, from the Crown’s point of view, than the unadorned reasonable evidence test, and on appeal the Court of Appeal took the same approach: R v M 11/7/01, CA135/01.

Given that the common law rules are aimed at preventing the admission of unreliable evidence, and that under the proposed Code the criterion for admission of hearsay evidence will be its reliability, we must ask to what extent will the existing rules survive the enactment of the Code. This is a general question, not simply confined to conspiracy or pre-concert cases.

A slippery slope

What is a reasonable doubt? Judges and juries may disagree over whether the prosecution has established beyond reasonable doubt that a confession was obtained voluntarily.

If the judge thinks the prosecution has proved that the confession was voluntary, then it is admissible. The jury (or, perhaps, any individual juror) may, however, not think the prosecution has proved the voluntariness of the confession beyond reasonable doubt. Where that is so, the jury (or, perhaps, the juror) must ignore the confession. This was established in R v Mushtaq [2005] UKHL 22 (21 April 2005), in a decision departing from the law as it had been understood to be (Chan Wei Keung v R [1967] 2 AC 160, and disagreeing with Basto v R (1954) 91 CLR 628 HCA).

The Law Lords did not consider the difficulties suggested by the phrases I have put in brackets: does the jury act as a whole in determining the voluntariness of the confession, so that it is only voluntary if all jurors agree that the prosecution has proved that beyond reasonable doubt? Or, is it a matter for each juror individually to determine when assessing what evidence he accepts and what he rejects?

Normally, jurors are told to act as individual fact-finders; the only requirement for unanimity attaches to the verdict they reach. This suggests that some jurors might rely on a confession as evidence of guilt, because they are satisfied that it was made voluntarily and is in other respects reliable, whereas other jurors may have to reach a conclusion without using the confession if they have a reasonable doubt about its having been voluntary.

One would have thought that it is correct to regard the jurors as individuals on all matters except the verdict, although the Supreme Court of New Zealand has, without directly addressing the point, apparently regarded the jurors as having to be unanimous on whether the basis for a statutory presumption to operate has been proved: Siloata v R 16/12/04, SC CRI 8/2004.

Apart from this uncertainty, which will probably be resolved in favour of the jurors-as-individuals approach, Mushtaq carries the theoretical danger that weak judges will tend to ignore their own doubts about the voluntariness of confessions, knowing that the jurors will have to make up their own minds about that.

The rationale of Mushtaq is based on the right to a fair trial, and the associated right against self-incrimination, and the role of the jurors as the ultimate arbiters of fact (per Lord Rodger at para 46, 49, 54, Lords Steyn, and Phillips agreeing; and per Lord Carswell at para 73; Lord Hutton dissented on the law, holding that the traditional distinction between the functions of judge and jury, admissibility and weight, applied). Given that potentially broad base, one might wonder whether the admissibility consequences of other forms of official misconduct, for example wrongful search procedures, are going to be left to juries. Why should the defence be prevented, after an unsuccessful voir dire on the issue of unreasonability of search and the application of Shaheed balancing, from raising the same matters with the jury as the basis for a submission that they should ignore the evidence that the judge has ruled admissible?

To prevent that, emphasis would have to be given to the special responsibility of the judiciary to oversee the propriety of police conduct and to prevent abuse of process, but the majority in Mushtaq did not rely on that point. The 4 to 1 rejection of Lord Hutton’s approach counts against this view. The better argument is that Mushtaq is based in trial fairness, whereas the public policy exclusion of improperly obtained evidence does not necessarily involve trial fairness considerations, so the Judge has sole jurisdiction over the admissibility of that evidence. However, to argue that way is to concede (dangerously) that the jury should have jurisdiction to ignore evidence in the interests of what it considers to be trial fairness. The law is poised at the top of a slippery slope.

Turpitudinous driving

Motor manslaughter must be distinguished from causing death by reckless driving, causing death by dangerous driving, and causing death by careless driving. The Crimes Act 1961[NZ], s 150A(2) applies, inter alia, to motor manslaughter charges, and it requires "a major departure from the standard of care expected of a reasonable [driver]".

While manslaughter requires that death be caused by an unlawful act, mere negligent driving, or dangerous driving, is of itself an insufficiently unlawful act to constitute manslaughter because those are separate offences. In R v Powell [2002] 1 NZLR 666 (CA) it was held that that where the unlawful act relied on as the basis of a manslaughter charge involves carelessness or negligence, the same high degree of negligence is required as for breaches of the legal duties to which s 150A expressly applies. See also R v Fenton [2003] 3 NZLR 439; (2003) 20 CRNZ 76 (CA).

What amounts to a major departure from the standard of care expected of a reasonable driver, so as to be more than dangerous driving causing death, is a matter for the jury to decide, and it is difficult to formulate general guidelines. The Privy Council has considered this in Brown v The Queen (Jamaica) [2005] UKPC 18 (13 April 2005). There, it was held that the offence of motor manslaughter must be defined in the context of similar offences such as, in that case, reckless driving causing death. This case is applicable to the New Zealand context, where there are offences of reckless, dangerous and careless driving. At para 25 of Brown the Board held:

"There must be proof of an extra ingredient, over and above the elements proof of which will ground a charge of causing death by reckless driving, but in their Lordships' opinion juries have to be directed on the meaning of recklessness if they are to give proper consideration to a charge of motor manslaughter."

An appropriate direction to the jury would need to be framed around the following considerations, para 30:

"(a) Manslaughter in this context requires, first, proof of recklessness in the driving of a motor vehicle, plus an extra element of turpitude. That extra element is that the risk of death being caused by the manner of the defendant's driving must in fact be very high.
(b) The jury should be told specifically that it is open to them to convict the defendant of causing death by reckless driving if they are not satisfied that the risk of death being caused was sufficiently high.
(c) Proof of reckless driving requires the jury to be satisfied
(i) that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property;
(ii) that in driving in that manner the defendant had recognised that there was some risk of causing such injury or damage and had nevertheless gone on to take the risk.
(d) It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard which from their experience and observation would be observed by the ordinary and prudent motorist.
(e) If satisfied that an obvious and serious risk was created by the manner of the defendant's driving, the jury must, in order to reach a finding of recklessness, find that he appreciated the existence of the risk; but they are entitled to infer that he was in that state of mind, though regard must be given to any explanation he gives as to his state of mind which displaces the inference."

In New Zealand law, reckless driving involves foresight of dangerous consequences that could well happen combined with an intention to continue a course of conduct even though those consequences are a clear risk: R v Harney [1987] 2 NZLR 576 (CA). This might be compared with the law of England and Wales, which is currently that (Brown, para 26) a person is reckless with respect to "(i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk": R v G [2004] 1 AC 1034. In New Zealand, the position is summarised in Brookers Law of Transportation as:

"… there are three elements involved in proving reckless driving:
(a) The driver fell below the standard of care expected of a reasonable and competent driver.
(b) The resulting situation was objectively dangerous.
(c) The driver was aware of the potential danger and continued to act despite knowledge of the possible consequences."

Reckless driving is thus dangerous driving with an added element of foresight. Dangerous driving is judged objectively, but includes a requirement of failure to meet the standard of care required of a reasonable and competent driver.

Brown should be of assistance in motor manslaughter cases in New Zealand. Whether a conviction for manslaughter is appropriate in respect of a death arising from reckless driving will be a matter for the jury to determine according to whether the risk of death, in the circumstances known to the accused, was, judged objectively, "very high". What the accused knew includes what he was indifferent to, and what he closed his mind to: R v Reid [1992] 1 WLR 793 (HL) per Lord Goff at 810 – 811.

Another aspect of Brown is the treatment of three points which were submitted to have given rise to substantial miscarriages of justice. These were: unfairness in the judge’s summing up; failure in the summing up to distinguish the functions of judge and jury; failure of defence counsel to rely on the accused’s good character.

The first point was considered in the context of the summing up as a whole, and it was held that there was no unfairness. There was thus no miscarriage of justice, and a fortiori no "substantial" miscarriage of justice, and the proviso did not need to be resorted to.

The failure to distinguish functions of judge and jury was made out as a point, but again, read in the overall context the Board was able to conclude ("not without hesitation": para 34) that the jury would have been aware of its proper function. The judge’s misdirection was a miscarriage of justice, but it was not substantial, and the proviso was applied.

The good character point was a "regrettable omission" by counsel (para 38), but again, on balance, the proviso was applied because the miscarriage of justice was, in the particular circumstances of the case, not substantial.

Words for the living, money for the dead

Remedies available to prisoners who have been denied the right to a fair hearing, or denied the right to legal representation, on charges relating to prison discipline, may be quite modest. In Whitfield and Others v. the United Kingdom [2005] ECHR 234, 12 April 2005, the European Court of Human Rights found in favour of 3 prisoners, one of whom was now dead, and held that for the two who were still alive, the findings of the Court were just satisfaction, and the deceased prisoner’s estate was awarded E3,000 for non-pecuniary damage. Each was awarded E2,500 for costs and expenses.

Errors at trial

Complaints about the quality of their legal representation are sometimes made by people who are convicted at trial. These complaints rarely succeed in achieving, on appeal, the grant of a new trial. Occasionally, however, counsel who acted at trial may provide the appellate court with sufficient information to support a conclusion that there had been a significant error at trial. This occurred in relation to one of the appeals in Teeluck v The State (Trinidad and Tobago) [2005] UKPC 14 (23 March 2005).

Interestingly, the focus is not on the extent to which the quality of the legal representation at trial fell below professional standards, although the court may well (and here, did) comment on that. Rather, the focus is on the impact which the error(s) of counsel had on the trial and verdict (para 39). On appeal, the issue is whether the verdict of a reasonable jury would inevitably have been the same if the error(s) had not occurred (para 40).

This is not to say that this is always the test to determine when mistakes have deprived the accused of a fair trial. Loss of a fair chance of an acquittal is indeed a sufficient, but not a necessary, condition for a finding that the trial was unfair. As the Privy Council held in Randall v R [2002] UKPC 19 (16 April 2002), para 28:

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

Teeluck concerns the consequence of the absence of the mandatory direction on good character evidence. Once good character has been raised by the defence, the direction must be given, but a mere assertion of absence of criminal convictions is of itself insufficient to raise the issue. New Zealand law is to the same effect: R v Falealili [1996] 3 NZLR 664 (CA).

Remedies for rights breaches

The idea that breach of the Bill of Rights may attract a remedy, usually called compensation, against the Crown and distinct from tortious liability for damages, has received a boost from the Privy Council: Attorney-General of Trinidad and Tobago v Ramanoop [2005] UKPC 15 (23 March 2005). The Law Lords referred to decisions of the New Zealand Court of Appeal, finding that dicta of Cooke P in Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667, 678, and Thomas J in Dunlea v Attorney-General [2000] 3 NZLR 136, 152 were of particular assistance.

There is a difference between the Constitution of Trinidad and Tobago, and the New Zealand Bill of Rights Act 1990, in that the former expressly provides that a person may apply by way of originating motion to the High Court for redress for breach of rights, without prejudice to any other action in respect of the same matter which is lawfully available. No equivalent exists in the latter. However, the NZBORA does not exclude a constitutional, as distinct from a private law, remedy. The question becomes one of whether the court can create a constitutional remedy for breach of constitutionally protected rights.

Professor Jim Evans has doubted the correctness of Baigent’s Case, in which a constitutional remedy was created: "What Does it Mean to Say Someone Has a Legal Right?" (1998) 9 Otago Law Review 301. In Brown v Attorney-General (discussed in these blogs, March 6, 2005) a majority of the Court of Appeal doubted, obiter, and without citing Professor Evans’s article, whether constitutional remedies should be available for breach of the right to a fair trial. The question can therefore be said still to be open.

The judgment of Thomas J, endorsed by the Privy Council, includes the following observations:

[55] Baigent’s Case established a new cause of action and remedy in compensation for a breach of the Bill of Rights. It applies, not only where there is no existing cause of action, but also where the existing cause of action and consequential remedy is inadequate. The focus is on the inadequacy as well as the availability of the cause of action. Consequently, to seek to restrict the remedy provided by Baigent’s Case to situations where there is no existing common law cause of action is not in accord with the ratio of the majority decision in that case. Furthermore, such claimed exclusivity runs counter to the fact that a number of causes of action deriving from statute or common law can and do exist concurrently and frequently overlap.

[56] Nor is the attempted exclusion particularly logical in that the cause of action under the Bill of Rights does not duplicate the common law cause of action. As I emphasise below, the common law cause of action is a private remedy to redress a private wrong. The cause of action under the Bill of Rights is a public law remedy based on a right in the nature of a public right. The Crown’s liability is not vicarious as it would be in tort. Its liability arises directly from the fact that in affirming fundamental rights in the Bill of Rights, the State has undertaken a constitutional obligation to respect, protect and vindicate those rights. Why, then, when the State has failed in that obligation should that essentially different public law remedy lie dormant if there is an equivalent common law private law civil action, and only arise from its torpor if and when there is no such cause of action? What is there in this public law remedy which would restrict it to such a back-up role? How can it be said that the elements of this public law remedy will only exist when the plaintiff has no common law remedy but not when he or she has such a remedy? Are we to pretend that the public law factors in respect of a breach of the Bill of Rights only arise where by fortuitous happenstance there is no equivalent private law remedy? Is there some policy consideration which is yet to be disclosed?

[57] I prefer to accept that Baigent’s Case established a new remedy for a violation of the Bill of Rights and that the key question which arises is not whether a remedy is available for that violation, but whether the existing private law remedies are adequate to provide an effective remedy for such a violation. Contrary to the Crown’s submission, I take the view that existing private law remedies are inadequate to vindicate those rights, and I turn to the critical need for such vindication.
…
[64] Compensation will not be effective to vindicate and affirm the right which has been violated, however, unless the quantum of the award recognises that a fundamental right possessed by the plaintiff has been denied. It follows that the award cannot be simply equated with damages for "equivalent" breaches of common law torts such as wrongful arrest, false imprisonment, or the like. The focus of the Court is wider and must embrace the impact of the State’s violation of the citizen’s fundamental rights."

These observations are similar to those of the Privy Council on the topic of the ingredients of the constitutional remedy (para 19) in Ramanoop.

The critical question at the present stage is whether the court should "recognise" the existence of a constitutional remedy, or whether the court should conclude that the matter is one for the legislature, and that until Parliament creates a constitutional remedy there is none. Why, however, is this an issue, after the Court of Appeal’s decision in Baigent’s Case? The CA has traditionally been regarded as normally being bound by its own decisions. Exceptions exist, where the law has been shown to have been decided wrongly, or where changes in the needs of society make change in the law desirable. Has an error in Baigent’s Case been demonstrated? Have social needs changed? The new circumstance is the existence of the Supreme Court, which last year took over the role of the less accessible Privy Council. One might surmise that the CA is willing to revise its earlier decisions in the interests of getting issues before the SC for final determination.

Class A drug supply sentencing levels

With a sideways look at statutory indications in Australia, a Divisional bench of the Court of Appeal has given guidance on the approach to sentencing for class A drug dealing offences: R v Arthur 17/3/05, CA382/04.

For reasons of etiquette as much as of law, the Court refrained from calling its decision a "guideline" or "tariff" judgment, as the bench included only one permanent member of the Court of Appeal. Left for clarification is whether this guidance applies to class A drug offences other than those involving methamphetamine, especially the hallucinogenic drugs.

General points notable in Arthur are:

• The starting point for a sentence is determined, before taking into account matters of aggravation (such as relevant previous convictions) and mitigation (such as guilty plea).
• The sentencing principles in the Sentencing Act 2002 take effect once the starting point is set, unless for truly exceptional reasons a custodial sentence is not appropriate.
• The starting points set out in Arthur apply to offences of supply. Importing or manufacturing may warrant higher levels of sentence.
• The quantity of drug involved in the offending, although important, is not the only factor to consider, therefore there may be some overlap between the ranges of the starting points.

The ranges of appropriate starting points, based on those applicable in New South Wales, are:

• Low level supply, up to 5 grams, from 2 to 4 years’ imprisonment
• Commercial quantity supply, between 5 and 250 grams, from 3 to 9 years’ imprisonment
• Large commercial quantity supply, in excess of 250 grams, upwards of 8 years’ imprisonment

The Court noted that, for the low level offending, sentence ranges were similar to those that have recently been applied in the High Court.

We can be pleased that the Court refrained from repeating one of the hackneyed tautologies of deterrent sentencing: that in addition to setting the starting points high in the interests of general deterrence, the court places little importance on the particular circumstances of the individual offender. This is a tautology because setting sentencing levels by the requirements of general deterrence itself involves ignoring the particular circumstances of individual offenders; there is no need to ignore them twice, for on the second occasion they may be ignored at the expense of justice. That is particularly important because, even under a regimen of general deterrence, some movement back from the higher levels of sentence may be required in the interests of justice to acknowledge the particular circumstances of an individual offender.

Update: Subsequently, in R v Fatu CA415/04, 18/11/05, guidelines for methamphetamine dealing (manufacturing, importing, supplying) were set down, based on the Arthur levels but with increases to reflect the greater seriousness of importing and manufacturing as compared with supplying. The Court used the quantity of drug, rather than its value, as the basic yardstick, and made no reference to ignoring the personal circumstances of the offender. The starting points set down were based on the seriousness of the offending, and recognition could then be given to the individual aggravating and mitigating circumstances. It is still not clear how broadly the mitigating circumstances personal to the offender can be construed under Fatu; traditionally these have been presence or absence of previous convictions and an early plea of guilty signifying remorse.

Duress of circumstances?

In view of R v Hasan [2005] UKHL 22 (17 March 2005) we may doubt whether there is any room for the common law development of a defence of "duress of circumstances" as a defence separate from coercion (s 24 Crimes Act 1961[NZ]).

Lord Bingham, delivering the leading opinion on the issue of duress – the common law version of coercion – observed that duress is akin to the defence of necessity, which applies to threats which are not of human origin but rather consist in the force of extraneous circumstances (para 19). Given that non-human perils are in the domain of necessity (a common law defence in New Zealand), and threats by humans are in the domain of duress (a common law defence in the UK), duress is only a common law defence in New Zealand if it is not covered by the statutory defence of compulsion. Is, therefore, the common law defence of duress wider than the statutory defence of compulsion?

Hasan suggests that it is not. Lord Bingham tightened the criteria for the operation of duress (para 22, for reasons he set out in paras 18 – 20), and indicated that circumstances falling short of being a defence might appropriately be considered as mitigating sentence.

The issues on duress in Hasan were decided by holding that the defence is not available if there was a reasonable (not merely a subjective) risk of exposure to threats, and that such threats were not limited to those directed at the commission of the type of crime that was actually committed. A reasonably appreciable risk of being exposed to threats directed at the commission of an offence, as a result of the defendant’s having associated with the person who makes the threat, would thus make the defence unavailable. The other narrow limits to the defence of duress were set out in para 21. The position of undercover officers was deliberately left for future determination, and Lady Hale would have made some allowance for defendants in battered spouse relationships.

In Kapi v MOT (1991) 8 CRNZ 49 (CA), at 57, the Court said, of the possible defence which it referred to as "necessity":

"We consider on the authorities cited to us that a defence of necessity, if available in New Zealand, requires at least a belief formed on reasonable grounds of imminent peril of death or serious injury. Breach of the law then is excused only where there is no realistic choice but to act in that way. Even then the response can be excused only where it is proportionate to the peril."

To the extent that the threats in Kapi were of human origin, the Court should be taken to be referring to the mooted common law defence of duress of circumstances, as necessity is limited to non-human threats. But further, if the common law defence (called duress, but, as is implicit in Hasan, synonymously duress of circumstances) is as constrained as indicated in Hasan, then the relevant defence in Kapi was the statutory defence of coercion.

In Police v Kawiti [2000] 1 NZLR 117; (1999) 17 CRNZ 88, Salmon J, the defence is properly called necessity, not duress of circumstances.

The statutory elements of coercion can, on facts which substantiate lack of moral fault, be interpreted liberally. In R v Jones [2004] EWCA Crim 1981, at para 51, it was pointed out that the requirement of immediacy of threatened serious harm would not be so restrictive so as to exclude, for example, harm that was inevitable albeit not immediate.

Negligence immunity in Australia

The High Court of Australia has decided the issue of counsel’s liability for negligence differently from the New Zealand Court of Appeal (see last blog entry): D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 (10 March 2005). The majority of 6 judges (only Kirby J dissented) held that the fundamental justification for a barrister’s immunity is the need for finality in judicial determinations.

The joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ, at para 84, highlighted the need to provide the best and safest system of determination that is compatible with human frailty. (Contrast, the standard of excellence referred to by Hammond J in Lei v Chamberlains.) McHugh J, concurring, stressed the professional consequences of misconduct and the duties owed by the barrister to the court. Callinan J, also concurring, noted that the common law tends to change incrementally, and it would be undesirable to make barristers liable for not pursuing apparently weak points on appeal just because of the possibility of a change in the law. Further, it would be unfair to continue protecting judicial error if barristers’ protection were to go. Kirby J dissented, fundamentally because other jurisdictions did not consider they needed to retain the immunity.

Plainly, when the New Zealand Supreme Court considers the matter, the desirability of our law being consistent with that of Australia will be an influential consideration.

Questions about negligence

The question whether counsel can be liable for negligence arising from conduct of criminal proceedings has deliberately, and unanimously, been left undecided in Lai v Chamberlains 8/3/05, CA15/03. Anderson P noted, para 39, the view of the House of Lords that, were such an action to be allowed, it would first require a successful appeal against conviction. The plurality in Lai at para 124 left aside the matter of liability for negligence arising from criminal proceedings, as did Hammond J, in a judgment expressing the majority view, at para 191.

Not every error by counsel at a criminal trial gives rise to a miscarriage of justice. For example, decisions may be made for tactical reasons to avoid taking every possible objection to the admissibility of evidence. This was recognised by the High Court of Australia in Ali v R [2005] HCA 8 (8 March 2005), per Gleeson CJ at para 9, Hayne J at 23, and Callinan and Heydon JJ at 98 and 99. On the other hand, while it may be difficult to point to a single critical error by counsel, an accumulation of circumstances may result in there being a miscarriage of justice, as occurred in R v Sharma (2003) 20 CRNZ 491 (CA). Would conduct of the kind that occurred in Sharma be sufficient to sustain an action for negligence?

As Hammond J said in Lai, at 181, the law should support a standard of excellence, although this was offered as a reason for applying negligence liability, not as a reason for holding counsel liable for anything less than excellence. In Sharma, such grounds for concern as there were, under this head, may have arisen from failure of senior defence counsel’s self-control due to the stress of the trial. Included in the causes of that stress may have been a personality conflict with the client during the trial. If there was negligence by counsel, was there contributory negligence by the client? Furthermore, in Sharma the overturning of the convictions was partly caused by judicial error in receiving verdicts before questions from the jury had been answered (or without establishing that the jury no longer required such answers). To what extent should that error reduce any liability for negligence that might otherwise have attached to counsel?

Equality of arms

The New Zealand Court of Appeal, in Brown v Attorney-General 3/3/05, CA39/03, has, without having to decide the question, touched upon the topic of whether compensation is an appropriate remedy where there has been a breach of the right to a fair trial. This topic has recently received attention in these blogs (Monday, 21 February 2005, see the discussion of the House of Lords decision in R v Secretary of State for the Home Department, ex parte Greenfield [2005] UKHL 14 (16 February 2005)).

Five judges heard the appeal in Brown. All agreed in the result, four judges jointly, and William Young J delivered a separate judgment in which he preferred to decide the matter of the availability of compensation rather than, as the other judges had, leave it open. The appeal from the refusal of compensation failed.

The joint judgment, delivered by Chambers J, held that the State (in the form of a District Legal Aid Sub-committee, referred to as the DLSS) did not breach Mr Brown’s right to a fair trial. This was so because the decision it reached, not to cover the costs of a DNA analysis that the defence sought to have conducted in Australia, was reasonable on the information before the DLSS at the time the decision was made.

Two concerns might be entertained about this approach. First, was the DLSS obliged to give reasons for its refusal to allow the costs? It is not clear from the judgment whether the DLSS did seek additional information or advise counsel for the defendant of what might have strengthened the claim. Much of the joint judgment is concerned with the inadequacy of the information placed before the DLSS by counsel for Mr Brown. A failure to give reasons would, of course, only be significant if it would have led to a different decision. This brings us to the second concern.

Were the results of the tests that were sought to be conducted likely to be of significance for the defence? The joint judgment (para 64, 85, 90, 98) assumes that the results would not have been significant. Essentially, the defence sought to establish that the accused’s DNA was not present on a shirt worn by a robber, and that therefore he was not the robber. The Crown accepted that there was no DNA which could be proved to have come from the accused on the shirt. The joint judgment concluded that it was unlikely that further testing would have produced any results, let alone decisive results (para 85, points (b) and (c)), saying that the absence of Mr Brown’s DNA took the matter nowhere.

Well, one might respectfully wonder about that. If the most sensitive testing then available could not find evidence that should be there if Mr Brown had worn the shirt, that fact would have significant probative value in favour of the defence. This can be seen from an application of Bayes’ Theorem. The critical point is, how likely is it that the robber’s DNA would have been detectable on the shirt? Scientists have an obligation to consider matters such as that (see Robertson and Vignaux, Interpreting Evidence, 1995, pp 76 – 77). If the robber’s DNA should have been there, and especially if DNA was there but it wasn’t Mr Brown’s, then the likelihood of Mr Brown being the robber was diminished. [Update: in dismissing the application for leave to appeal this decision, Brown v Attorney-General [2005] NZSC 59, 29 August 2005, the Supreme Court noted that the evidence was that a significant proportion of the population do not secrete DNA in their sweat. The SC held that there was no evidence that the absence of the tests that the defence had requested caused any loss to the appellant.]

Applying Bayes’ Theorem involves comparing the probability of obtaining the evidence (that Mr Brown’s DNA was not detected) assuming that he was guilty, to the probability of obtaining the same evidence given that he was not guilty. The ratio of these probabilities (the former divided by the latter) is called the likelihood ratio. If the accused was not guilty, then the probability of the "none of his DNA" result would be 1. The denominator of the likelihood ratio would be 1. The numerator is therefore the critical thing: what is the probability that the robber would not leave detectable DNA on the shirt? That is the critical point on which the DLSS should have been informed (or, on which it should have sought information).

If there was a chance of, say, one in ten that the robber could have worn the shirt without leaving DNA on it, then the likelihood ratio would affect the likelihood of guilt compared to the likelihood of innocence, by a tenth. That, one would have thought, should have been sufficient to raise a reasonable doubt and thus be grounds for a verdict of not guilty.

A weakness of the joint judgment in Brown is, therefore, its emphasis on the results of the proposed tests being unlikely to assist the defence.

This is not to say that the Court was wrong to reject compensation as a remedy for breach of the right to a fair trial. While the joint judgment leaves the point open, it does acknowledge the matters referred to by William Young J at paras 126 to 142 of his judgment. Even if there had been a breach of his right to a fair trial, Mr Brown’s remedy was through the appeal process (obtaining a quashing of his conviction and, perhaps, a retrial). The most persuasive reason for this conclusion is the difficulty in distinguishing cases of ordinary error at trial, cured by appeal, from errors that merit the constitutional remedy of compensation from the Crown. After all, there will be overlaps. An erroneous direction to the jury on the applicable law, curable by appeal, deprives the accused of the right to a fair trial. And misconduct by agents of the State is normally remedied by exclusion of evidence or stay of proceedings, not by compensation. There is therefore a question over the future of Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667 (CA), at least to the extent that it might have been thought to be applicable, beyond its facts, to cases where the rights that are breached belong to a person who is, consequently, charged with an offence.

Two aspects of William Young J’s agreement on the issue of breach of rights leave cause for concern. At para 124 he assumes that the accused would not have himself paid the costs of the tests, had he had the funds to do so. A person of even ordinary financial means would probably think anything around $10,000 (the tests here were likely to have cost much less) to be a wise investment, in view of the prospect of 9 years’ imprisonment (the sentence Mr Brown received). Secondly, William Young J says (para 125) that the appellant’s approach to the equality of arms argument was selective: results favourable to the prosecution should have been disclosable if the tests had been allowed. This, with respect, is a dangerous suggestion. If the tests had been privately funded, any results unfavourable to the defence would certainly not have been disclosed to the Crown, so why should an impecunious defendant be in any different position just because the State is funding his defence?

The utility of rights

Sometimes the rather constrained interpretation that courts give of the rights of a suspect lead us to suspect that judges tend to forget that rights are given in the overall interests of society. Rights belong to everyone, and they have a social utility. They can provide useful opportunities to check that power is being correctly exercised, thereby minimizing official error.

An example of constrained interpretation of rights is the holding in R v Mallinson [1993] 1 NZLR 528; (1992) 8 CRNZ 707 (CA) that the police do not have to facilitate the exercise of the suspect’s right to legal advice right unless the suspect indicates a wish to exercise it. On that approach, the right only covers informing the suspect of the existence of the right, which, indeed, is following the letter of the New Zealand Bill of Rights Act 1990. There is, according to Mallinson, no need to tell the suspect how the right might effectively be exercised; in particular, there is no need to tell the suspect about the existence of a list of lawyers who make themselves available free of charge for the purpose of giving advice, and of private access to a telephone.

Fortunately, there has been a widening of perspective since then. Mallinson was decided by five judges, but a 3 judge bench in R v Kai Ji [2004] 1 NZLR 59 (CA) held that telling the suspect of the availability of free legal advice was integral to the existence of the right to be informed of the right to consult a lawyer under s 23(1)(b) of the Bill of Rights. This change in approach reflected the introduction of the statutory Police Detention Legal Assistance scheme in the Legal Services Act 2000, which established in statutory form a practice that had existed when Mallinson was decided.

The Privy Council has extended the right to legal advice to those who are arrested, not on suspicion of committing an offence, but for non-payment of fines: Ramsarran v Attorney-General of Trinidad and Tobago [2005] UKPC 8 (28 February 2005). The social utility of the right is apparent (para 11):

"In their Lordships' view the fundamental reason why section 5(2)(c) covers cases of non-payment of fines is that it is necessary to ensure that persons incorrectly arrested or detained for reasons other than suspicion of having committed a criminal offence have an effective and practical means of securing their release as soon as possible. That may be illustrated by the case before the Board. If the appellant had been informed of his right to legal advice and had been given the necessary facility to contact a lawyer, the lawyer could have lent his weight to a demand that the records be checked forthwith for payment of the fine, and could have made a speedy habeas corpus application if this did not secure the appellant's early release. One would have expected that a lawyer's intervention would have effected the appellant's release long before three days had elapsed. One may readily envisage other cases in which access to legal advice would be of material assistance to a person arrested and detained. In a case of mistaken identity he may be arrested for non-payment of a fine imposed upon another person. It is possible to envisage other occasions apart from pretrial situations on which unjustified arrests might take place. In none of them could it be said that the requirement of access to legal advice would be unnecessary, let alone "farcical", as Sharma JA suggested. On the contrary, it seems to their Lordships that it would constitute a very real help in time of trouble."

Bias and expertise

At common law the absence of bias includes the absence of the appearance of bias. Consequently, a tribunal may be impugned for bias without actual bias needing to be proved, and its decision quashed without any aspersion being cast.

This happened in R v Secretary of State for the Home Department, ex parte Al-Hasan [2005] UKHL 13 (16 February 2005). Proceedings were quashed because the common law test was satisfied (para 37); in summary, this amounts to asking whether a fair-minded observer would think there was a real possibility that the tribunal had been predisposed, that it lacked impartiality, that it may have been improperly influenced. An honest doubt about this, entertained by the fair-minded observer, is sufficient, even if the doubt is unfounded.

In that case a prison official (deputy governor) presided over a disciplinary hearing in which the validity of an order promulgated by the prison governor was challenged. When the order had been formulated, the official had been present and had implicitly agreed to it. It was therefore unlikely that he would hold that the order was invalid. The House of Lords stressed that there was no suggestion that in presiding over the hearing he had intentionally acted wrongly.

Baroness Hale, para 16, concluded

"…Giving the order and deciding upon its lawfulness could have been more clearly separated.
… however professional the Deputy Governor was in his approach to his task, a fair-minded and informed observer would conclude that there was a real possibility that he would be pre-disposed to uphold the legality of the order."

Plainly, a line had to be drawn between this unacceptable overlap of functions (participating in promulgating a rule and subsequently deciding on its lawfulness), and the position of judges, who often have extra-judicial experience involving the expressing of views on the appropriateness of legislation, or even proposing law reforms which are later enacted. Lord Rodger addressed this issue, para 9, concluding:

"The knowledge and expertise developed in these ways can only help, not hinder, their judicial work."

And adding, para 10:

"Judges have not infrequently been party to decisions overruling their own previous decisions."

As an example, Lord Rodger referred to (also para 10):

"In In re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291, Lord Mackay of Clashfern took part in a decision in which the House struck down a system adopted by a local authority for "starring" the essential milestones of their care plan adopted under the Children Act 1989. The appeal turned on identifying a cardinal principle of the Act - a piece of legislation for which Lord Mackay, as Lord Chancellor, had been the lead minister when the Bill was going through this House in its legislative capacity. More than that, as he explained, at p 327, para 108, he had actually given a lecture in which he suggested the idea of starring stages. At the beginning of the appeal, however, he informed counsel of this and they did not object to his sitting. So any question of apparent bias was resolved. Again, since Lord Mackay agreed with the decision to disapprove the starring system, the informed and fair-minded observer would have seen that he was well able to judge the matter independently and impartially when called upon to do so."

Thus Lord Rodger recognises that judges can be vulnerable to giving the fair-minded observer an impression of bias, and the way of overcoming that is to inform counsel of potentially embarrassing matters at the beginning of the hearing and to invite objection to their continued sitting.

Lord Brown, delivering the leading speech in Al-Hasan, referred to the common law test for bias (para 30):

"The common law test for bias has been authoritatively settled by the recent decisions of this House in Porter v Magill [2002] 2 AC 357 and Lawal v Northern Spirit Ltd [2004] 1 All ER 187:
"The question is whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal was biased".

The correct procedure was (para 41):

"… to have avoided the appearance of bias [the deputy governor] would either have had to make plain at the adjudications that he himself had actually been present when the squat search order was confirmed (rather than give the impression, as he appears to have done, that he had known nothing of it) and sought the prisoners' consent to his nevertheless hearing the charges, or alternatively stood down to enable them to be heard by a different governor (if necessary from another prison) without any such previous involvement in the case."

Damages and breach of the right to a fair hearing

Breach of the right to a fair trial will usually be vindicated by the declaration of the appellate court that there had been a breach, and a quashing of the conviction. There may also be an order for a retrial, which, in a remote sort of way, can also be of advantage to the accused if he obtains an outright acquittal. Awards of damages for breach of fair trial rights are rare, and when made have been "noteworthy for their modesty": R v Secretary of State for the Home Department, ex parte Greenfield [2005] UKHL 14 (16 February 2005), per Lord Bingham at para 17, in a judgment with which the other members of the House concurred.

Special damages may be awarded where a causal connection can be shown between the breach of the right to a fair trial and a loss for which compensation is claimed (para 11), and general damages can arise in rare cases where it can be shown that the applicant has been deprived of a real chance of a better outcome (para 14), or where there has been physical or mental suffering attributable to the breach of the right (para 16).

Where damages are appropriate, should domestic courts apply domestic scales of awards, or should they follow international law precedents? In Greenfield, the position was governed by the statutory relationship between the domestic courts and the Strasbourg court. Some points considered material by Lord Bingham at para 19 of Greenfield suggest analogous questions that may usefully be asked on this issue:

• (1) is the relevant rights legislation a torts statute?
• (2) has the rights statute been enacted with a view to giving remedies that improve on those at common law?
• (3) is there any legislative direction concerning the relevance of international awards of damages?

In Greenfield, it was accepted by the respondent that, in the light of a decision of the European Court that had been given after the lower courts’ decisions in this case, there had been breaches of the right to a fair hearing because the tribunal (a deputy controller determining an allegation of breach of prison rules) was not independent or impartial, and because the applicant had been denied legal representation notwithstanding that he had a lawyer who was available to act. Nevertheless, the House of Lords found that the hearing appeared to have been conducted in an exemplary way, and it would not speculate as to whether legal representation would have made a difference to the outcome. There was, furthermore, nothing special in the case that warranted special damages for anxiety or frustration. Damages were declined but declarations of the breaches of the fair trial rights were made. Costs were reserved for further submission.

Obviously, these declarations will result in improved procedures for other people charged with breaches of prison discipline. It seems, however, that Mr Greenfield had an additional 21 days of imprisonment added to his sentence in circumstances where a conviction would have been quashed if he had been subject to the jurisdiction of the criminal court. This case is a special example of the general difficulties that people who successfully appeal convictions face in obtaining a remedy for such sentences as they may have served.

Jury secrecy

To what extent, really, is the law applied in the jury room? The almost impenetrable veil of secrecy behind which jury deliberations are conducted prevents exposure of such injustice as may occur. The law deems the secrecy to be worth that price.

A glimpse into what jurors can get up to is given in R v Smith (No 2) [2005] UKHL 12 (16 February 2005), at para 11. The remedy, quashing the convictions and potentially ordering a retrial, fits the particular case, but it was only possible because one juror was concerned enough to write to the judge during the deliberations.

There is a case for observing jury deliberations, for example, by closed circuit television monitoring, to ensure no errors are made in the application of the law. Of course issues of juror anonymity and appropriate intervention would arise, as would problems of catering for unrepresented accused persons.

How much honesty can the system cope with?

Miscarriage of justice, or inconsequential error?

When can an appellate court hold that, notwithstanding an error at trial, conviction of the accused was not a miscarriage of justice?

The difficulties in deciding this issue are illustrated by the 3-2 split in the Privy Council decision Dial v The State (Trinidad and Tobago) [2005] UKPC 4 (14 February 2005). The appellants were seeking to overturn convictions in respect of which they had been sentenced to death.

I have, in the last entry on this blog, pointed out that the implications of there being no power to direct juries to convict (R v Wang [2005] UKHL 9, 10 February 2005), have some relevance to this issue. Wang emphasised the fundamental point that at trial, it is the jury that carries out the function of applying the law to the facts. But from the perspective of a court of first appeal, the view is slightly different. Where there is a second appeal, the court’s function may again be seen differently.

The majority in Dial described the approach of a court of first appeal as follows (para 42):

"…the question arising for the Appeal Court's determination is whether [new evidence, or an error at trial] realistically places the appellant's guilt in reasonable doubt - whether, in other words, the verdict is now to be regarded as unsafe. That necessarily must depend upon all the evidence in the case." [emphasis in the judgment]

On second appeal, the court looks at whether the first appellate court considered the relevant matters and whether it was accordingly entitled to reach the conclusion it did. While the majority in Dial (Lords Bingham, Carswell and Brown in a joint judgment) held that the appellate court’s conclusion should be sustained, the minority (Lords Steyn and Hutton in separate judgments) disagreed. Lord Steyn (para 54) held:

"Nowhere in … the judgment, does the Chief Justice [of Trinidad and Tobago] pause to consider how the jury (or a reasonable person circumstanced as the jury were) would have viewed the potential impact of the [fresh evidence]. That was an issue which the Court of Appeal as a matter of legal principle should have squarely faced. The Court of Appeal did not do so. It is a fundamental flaw in the judgment. In these circumstances it is not appropriate to defer to the Court of Appeal as the court who heard the new evidence."

Lord Steyn concluded with a caution for appellate courts:

"64. It is always important for a judge to bear in mind what Justice Learned Hand in his famous address during the Second World War, in Central Park, New York City, called the spirit of liberty. He said that the spirit of liberty is the spirit which is not too sure that it is right. The need for such an approach is immeasurably increased where the issue at stake is killing a man by the cruel and barbaric punishment of the death penalty. This spirit is not evident in the judgment of the Chief Justice. Instead his judgment is expressed in certainties and absolutes with some questionable and speculative assumptions in favour of the state."

Lord Hutton, also dissenting, referred to the law on how the court of first appeal should approach the matter:

"74. In R v Pendleton, at para 19, [2002] 1 WLR 72 the House of Lords affirmed that the guiding principle is that stated by Viscount Dilhorne in Stafford v Director of Public Prosecutions [1974] AC 878 at 906:
"While … the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe]."
"In R v Pendleton, at para 19, Lord Bingham of Cornhill stated:
"The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe." "

This reflects the inevitable distance of the appellate courts from the witness box. Furthermore, as evidence is recounted and digested on appeal, errors may creep into the narrative. Lord Steyn, at para 63, points out how the majority apparently allowed this to happen in their reliance on prosecution evidence which had not, in fact, been given. "The reliance on this factor in the majority judgment is unjustified and a failure of due process."

When the court of second appeal finds an error of reasoning in the court of first appeal, the court of second appeal carries out the exercise as it should, in its view, have been done. We can only guess what the majority in Dial would have concluded had it found an error in the court below, and had the majority not (assuming Lord Steyn’s due process criticism is correct) made a mistake about the extent of the prosecution evidence.

There are lessons to be learnt from Dial, and they include the danger of an appellate court being dogmatic about the facts of the case. An analogy that I suggest is useful is with the approach that a trial judge takes to submissions of "no case": R v Flyger [2001] 2 NZLR 721; (2000) 18 CRNZ 624 (CA). This, of course, is only an analogy in a loose sense, calling for lateral thinking rather than direct transposition of concepts. The question on a no case submission is whether there is evidence which, if accepted, would be sufficient to support a conviction. This might be transformed into an appropriate question on appeal where miscarriage of justice is in issue: if the error had not occurred at trial (or, as the case may be, if the fresh evidence had been available), could there have been stronger grounds for acquitting the accused than there had been at the flawed trial?