Propensity and logic

For my observations on the admissibility of propensity (similar fact) evidence under the
Evidence Act 2006[NZ], in the light of Bayes' Theorem and the requirements of logic,
Click here.

Stare decisis in the European Court

Some interesting points are illustrated in Young v United Kingdom [2007] ECHR 48 (16 January 2007). A prisoner was found to have been denied a fair disciplinary hearing, mainly because the Governor, who was the tribunal, was not appointed independently of the prosecuting agency, and also because no legal representation was made available to the prisoner. The European Court of Human Rights (Fourth Section), sitting as a Chamber, held unanimously that Article 6 of the European Convention on Human Rights had been breached; Judge Maruste delivered a separate concurring judgment in which he adhered to an earlier dissenting opinion he had expressed but distinguished it on the grounds that in the present circumstances a rigid application of prison rules had not been justified.

Dissenting judgments

The first point of interest, therefore, is to what extent judges should adhere to dissenting opinions that they have previously expressed. Judge Maruste’s dissent had been delivered in Ezeh and Connors v United Kingdom [2003] ECHR 485 (9 October 2003), and held that where the result of proceedings is to postpone release on parole, that is not the imposition of a new sentence, and it does not require a trial, or the sort of hearing that attracts the fairness requirements of Art 6. The majority held (para 123) that Art 6 did apply: “The reality … was that prisoners were detained in prison beyond the date on which they would otherwise have been released, as a consequence of separate disciplinary proceedings which were legally unconnected to the original conviction and sentence.”

Even though the majority Grand Chamber decision in Ezeh and Connors was 11 to 6, in terms of the ratio of that case the point of law was decided: prison disciplinary proceedings that may result in postponement of release must be fairly conducted. Should Judge Maruste (and the other dissenters in Ezeh and Connors) obey the law by abandoning their previous dissenting opinions? One of the other members of the Court in Young, Judge Pellonpaa, had also dissented in Ezeh and Connors; he did not repeat his own dissenting opinion.

[Update: another example of a dissenting Judge not repeating his dissent is Lord Hoffmann in Gibson v USA (The Bahamas) (blogged 26 July 2007): he declined to join the majority in overruling a case in which he had dissented (Cartwright v Superintendent of HM Prison [2004] UKPC 10); among the reasons for his now approving the majority's view in Cartwright was the point that the decision supported public policy and international treaty obligations, and it was not unjust.]

When are proceedings “criminal”?

For the right to a fair hearing to apply under Art 6, the proceedings must be “criminal” (or, in New Zealand, for example, they must involve a charge of an offence: NZBORA, s 25). To decide whether proceedings are “criminal”, the European Court considers the way the matter is classified in the relevant State law, but that is subject to the Convention; the nature of the accusation, and, as a separate point, the severity of any penalty that may be imposed.

There is no room for doubting the application of the right to a fair hearing where domestic law is clear, as in New Zealand, where “offence” is defined in the Crimes Act 1961, s 2, as meaning “any act or omission for which any one can be punished under this Act or under any other enactment, whether on conviction on indictment or on summary conviction.” Any doubts here would have to concern what “punished” means. Where proceedings do not involve a risk of conviction, the rules of natural justice apply: Drew v Attorney-General [2002] 1 NZLR 58, (2001) 18 CRNZ 465 (CA).

Waiver

Limitations on what amounts to waiver of convention rights were referred to in Young, at para 40. Waiver must be consistent with the public interest, it must be established in an unequivocal manner, and there must be minimum guarantees commensurate with the importance of the waiver. At para 41 the Court dealt with the question whether the applicant had waived her right to legal assistance as follows:

“According to the Government’s own account, the applicant was asked if she wished to have “help” at the hearing and the record of the adjudication indicated that, if she answered in the affirmative, she would be informed of the assistance and legal representation “possibilities”. There is therefore no indication she was in fact clearly offered legal representation for the hearing as opposed to the assistance of a friend/layperson. In addition, given the applicable domestic law and practice (outlined in the Ezeh and Connors judgment, §§ 59-62), any outline of the legal presentation “possibilities”, in the event of such an affirmative response from her, would not have indicated with any certainty that such representation would be available. Moreover, any choice would have been put to her at the adjudication hearing itself at which she was unassisted. Furthermore, she would have been required to respond to the Governor who conducted the hearing and who was charged with maintaining prison discipline and was responsible for the pursuit of the charges against her, for determining guilt or innocence and for fixing her sentence. The Court does not consider that, even accepting the Government’s submissions, the circumstances demonstrate that any choice by the applicant as regards legal representation could be considered unambiguous and free. Accordingly, and in so far as such a waiver would be permissible and not run counter to any important public interest, it is not established to have been unequivocal and accompanied by guarantees commensurate to its importance ….’

In New Zealand the requirements for effective waiver are under review. I have summarised recent developments in the text Misuse of Drugs, at para 1311, as follows:

"The giving of advice of rights to counsel is not to be an empty ritual .... In R v Kai Ji [2004] 1 NZLR 59; (2003) 20 CRNZ 479 (CA) it was 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 is a departure from 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 this right unless the suspect indicates a wish to exercise it. Although Mallinson was decided by 5 Judges, and Kai Ji by 3 Judges of the permanent Court, it is clear that the latter were indicating a change in approach in view of the intervening introduction of the statutory Police Detention Legal Assistance scheme in the Legal Services Act 2000."


Effect of the breach is irrelevant to whether there was a breach of the right to a fair hearing

An important point, only recently settled in New Zealand law, is that the right to a fair hearing is a procedural right, and does not depend on proof of loss, such as loss of an opportunity of a more favourable result (see, for example, Condon v R, noted here 26 August 2006). In Young, the Court noted that this was not a case of loss of a real opportunity of a more favourable result, as it was impossible to speculate about what would have been the result of a fairly conducted hearing (para 48, 49). Because that was so, the Court’s judgment was itself sufficient satisfaction for any damage that had been suffered.

Normally, of course, the consequence of a finding that a hearing was unfair will be the quashing of the result (usually, the conviction) of that hearing. In Young, there was no resulting conviction to quash, and all that the Court could have done was to make an award of damages for non-pecuniary loss, but that would have required proof of a loss. Although the result of the unfair hearing was 3 extra days in custody, the applicant could not show that the same result would have followed from a fair hearing.

Legal expenses and award of costs

The Court in Young significantly reduced the amount of costs that were sought to cover the successful appellant’s legal expenses. Aside from the absence of a fully itemized account, the reason was that most of the submissions had been prepared after the delivery of the Grand Chamber decision – Ezeh and Connors - that had settled the law.

The implication is that counsel must rely on the Court applying its earlier decisions, even when the court is a largely differently constituted bench considering a previous split of 11 to 6. Notwithstanding the risk of liability for negligence, which might result in a tendency to, albeit in good faith, over-prepare, and the potentially strong opposition from government-funded prosecuting counsel, it seems that less well funded counsel must have confidence in their case.
 

To speak, or not to speak?

For my observations on advising clients whether to talk to the police, Click here. 

Improperly obtained evidence

For my observations on the new provision in the Evidence Act 2006[NZ] concerning the discretion to exclude improperly obtained evidence, Click here.

Observations on hearsay

For my observations on the new hearsay provisions of the Evidence Act 2006[NZ], Click here. 

Deceit from a distance

Today our Supreme Court held that a person who, outside New Zealand, causes a copy of a document to be created in this country (here, by sending a fax), does an act in New Zealand so as to attract the application of New Zealand law: Walsh v R [2006] NZSC 111 (19 December 2006).

The defendant appealed against convictions for forgery. She had been found guilty on the basis that she had, in Amsterdam, created false documents and then, perhaps after copying them to disguise the method of their creation, she had faxed them to the victims, intending thereby to dishonestly obtain money.

There was a difficulty here with the forgery convictions, because of the legal definition of a forged document as, essentially, a document that told the kind of lie about itself that brought it within the then-applicable statutory definition of false document (see para 9 of the judgment of Elias CJ, McGrath and Anderson JJ, with which Blanchard and Tipping JJ concurred). The difficulty here was that the forgeries were completed (outside the jurisdiction of New Zealand courts) before the copies were made, and the copies purported to be made by the accused, which was true: para 16. This was the position for all except 6 documents; these 6 purported to be letters addressed specifically to particular victims. While this point did not need to be decided, Blanchard J indicated, para 33, that he would have held that there were forgeries, as they each purported to be sent on the authority of their apparent writer, and that was a lie.

No such difficulty existed concerning the offence of uttering, and the Court amended the convictions accordingly. Uttering was defined at the relevant time by s 266 of the Crimes Act 1961, and the accused had committed the offences by sending the faxes to New Zealand: para 19, 20. There was no prejudice to the appellant in these amendments, because in order to have convicted her for forgery the jury must have accepted proof of all the ingredients of uttering. The same statutory maximum penalty applied, and the sentences were confirmed.

As Tipping J pointed out in para 40, the law in New Zealand was “substantially recast” from 1 October 2003 by the present sections 255 – 265 of the Crimes Act 1961, and the appellant would now appropriately be convicted, if she had committed the offences on or after that date, under s 258, of reproducing documents with intent to deceive.

The current offence of forgery attracts the same difficulties as those which were considered in this case, and the prosecution must select a charge appropriate to the circumstances of each case. Walsh is interesting for its reference to the jurisdictional point, and for the reasons why the convictions could be amended.

I wasn’t going to do a blog entry on Clift, R (on the application of) v Secretary of State for the Home Department [2006] UKHL 54 (13 December 2006), but, because there is an interesting parallelism of concepts, I will mention it here. The essential distinction, operative in both cases, is between status and action. In Walsh, the determination of whether a document is a forgery requires analysis of the distinction between what the document is, and what it seeks to do. To be a forgery, the document must make a false assertion about what it is, its status. This must not be confused with what it does, its action, which will be to make a false assertion about some state of affairs and thus mislead its intended recipient. In Clift, the point was that discrimination concerns what a person is, his status, and not what he has done, his action. Thus, in that case, (broadly speaking), a prisoner subject to a different parole regime to others who had received lesser sentences was held not to be the victim of discrimination in contravention of article 14 of the ECHR because the difference in parole eligibility was due, not to his status (as a person), but to his conduct in committing the crime for which he was sentenced.

Extended secondary liability

To be guilty of serious crime you must intend to do the prohibited thing. Intention is the fundamental requirement for liability. Those two statements require some qualification. Recklessness is often sufficient. There is a difference between a person who actually does the act (the principal offender) and one of the two sorts of secondary participants. The first sort of secondary parties are those who aid, abet, counsel or procure the commission of the offence. These people are liable if, like the principal, they intend the prohibited acts (or are reckless as to whether or not they occur). But, the second sort of secondary party, the one we will be concerned with here, is the person who assists in the commission of one offence, knowing that the principal “could” commit another offence; the question is, what sort of state of mind is needed by the secondary party for liability for that other offence?

I have put the word “could” in quotation marks because there is some variation in the law about what attitude the secondary party must have towards the commission of that other offence. In New Zealand, s 66(2) of the Crimes Act 1961 puts it like this:

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

The critical phrase here is “known to be a probable consequence”. Although this sort of secondary party can be liable without actually intending that the other offence be committed, he must regard its commission as a “probable”, rather than a “possible” consequence. This puts the requirement as higher than recklessness, which is usually understood to mean taking a known risk.

There is, therefore, room for some dissatisfaction with this law, as the principal offender may, depending on the definition of the offence in question, only be liable for prohibited conduct that he intended, while the secondary participant is liable merely because he knew its occurrence was probable even if he didn’t want it to happen.

The law of homicide is usually the source of illustrations by commentators, but this is a bad example. To put it in simplified terms, murder can be committed by the principal offender even though he doesn’t intend to kill: recklessness is sufficient. There is not, therefore, the disparity between parties as there might be in relation to some other offences. Nevertheless, in Clayton v R [2006] HCA 58 (13 December 2006) the appellants, convicted as secondary parties to murder, asked the High Court of Australia to change the law. In Victoria, the state of mind required by this sort of secondary party is defined by common law as knowledge that the commission of the other offence (here, murder) was “possible”. This is a lower standard for liability than “probable”. Kirby J, dissenting, thought that the anomalies in the law would be avoided if the requirement was changed to “probable” (para 121), but the other members of the Court declined to change the common law, emphasising that there was no disparity between the forms of liability as the principal could be liable without intending to kill (para 16), and that the issue might really amount to a change in the law of homicide, a matter that should be left to the legislature (para 19).

At para 20 the majority refer to the jurisprudential basis for the different forms of liability:

“Further, no change could be undertaken to the law of extended common purpose without examining the whole of the law with respect to secondary liability for crime. The history of the distinction between joint enterprise liability and secondary liability as an aider, abettor, counsellor or procurer of an offence has recently been traced by Professor Simester ["The Mental Element in Complicity", (2006) 122 Law Quarterly Review 578 at 596-598]. As that author demonstrates [at 598-599], liability as an aider and abettor is grounded in the secondary party's contribution to another's crime. By contrast, in joint enterprise cases, the wrong lies in the mutual embarkation on a crime, and the participants are liable for what they foresee as the possible results of that venture. In some cases, the accused may be guilty both as an aider and abettor, and as participant in a joint criminal enterprise. That factual intersection of the two different sets of principles does not deny their separate utility.”

This was the extent of the majority’s reference to the “separate utility” of the different forms of liability. Kirby J, at para 107, was not convinced by Simester’s rationale:

“The justification presented by Simester …[Simester and Sullivan, Criminal Law Theory and Doctrine, 2nd ed (2003) at 226; see also Simester, "The Mental Element in Complicity", (2006) 122 Law Quarterly Review 578 at 592-601] is ultimately unpersuasive. The law may indeed dislike group anti-social activities, particularly where they result in death. But a rational and just legal system will dislike such activities equally, whether the conduct charged is prosecuted as an offence of acting in concert or of aiding and abetting others in carrying out the group activity. The law will not withdraw from one means only of establishing the offence (by reliance upon extended common purpose liability) the normal requirement of the modern criminal law that the prosecution prove a requisite intention on the part of the secondary offender.”

The New Zealand Court of Appeal has taken this logical approach of treating principal and secondary parties on the same footing: R v Tuhoro [1998] 3 NZLR 568; (1998) 15 CRNZ 568 (CA), 573:

“Having regard to the increasing number of persons prepared to combine for major criminal activity, … it is neither contrary to public policy nor unjust to hold them to account on the same basis as the actual perpetrator of any crimes within the scope of their criminal plan.” 

Reliability and hearsay

Yesterday, the Supreme Court of Canada made some observations on hearsay that are relevant to issues that will arise in New Zealand under our new Evidence Act 2006: R v Khelawon [2006] SCC 57 (14 December 2006).

The crucial provision in the Evidence Act 2006 that I will focus on here is s 8:

“8 General exclusion

(1) 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.

(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 “right of the defendant to offer an effective defence” echoes s 25(e) of the New Zealand Bill of Rights Act 1990: “The right to be present at the trial and to present a defence”, and the word “effective” invokes other aspects of s 25. The importance of the Bill of Rights is recognised in the Evidence Act 2006, s 6, where the purposes of the Act are stated to include “providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990”.

The most fundamental of the rights in s 25 of the Bill of Rights is the accused’s right to a fair hearing. This right has been recognised by the New Zealand Supreme Court as fundamental and essential: Condon v R (blogged here, 24 August 2006). In Khelawon the Court recognised, at para 47, the link between the right to make a full answer in defence and the right to a fair trial, saying that this introduced a “constitutional dimension.”

Hearsay evidence is presumptively inadmissible, but it may be admitted. An essential for admissibility is that the circumstances relating to the statement provide reasonable assurance that it is reliable: Evidence Act 2006, s 18(1).

The Supreme Court of Canada, in Khelawon, has analysed the reliability requirement for admission of hearsay statements. Essentially, it held that reliability may arise in two ways, but these are not mutually exclusive. The first is where reliability can be assessed by the trier of fact (usually, the jury). Here, there will be means by which the truth and accuracy of the statement can be tested, other than by cross-examination. In such cases, the judge does not need to inquire into the truth or accuracy of the statement, in determining its admissibility, as those are matters for the jury. We may question, with respect, whether it is appropriate to call this first a test for “reliability”, rather than a test for “safety” of admitting the evidence. The point is that it is safe to admit the evidence because in the circumstances of the case its reliability can properly be assessed by the jury.

The second sort of reliability in the Supreme Court of Canada’s analysis is where the trustworthiness of the statement is put forward as the reason for admitting it: here, the judge must inquire into the factors that tend to show whether the statement is true or not.

That, of course, doesn’t take the reliability issue very far, and it is unlikely to be a subject for analytical expansion as opposed to illustration by example. Of more interest here is the Court’s model of trial fairness. At para 48 the Court noted that trial fairness embraces more than the rights of the accused: it includes broader societal concerns, one of which is that the trial process should arrive at the truth. These broad interests were, said the Court, reflected in the twin principles behind the admission of hearsay evidence: the necessity principle (usually meaning that the maker of the statement is not available to give evidence), which reflects the truth-seeking interest, and the reliability principle, which reflects the need for integrity in the trial process. Other fair trial interests were reflected in the general discretion of the judge to exclude evidence where its prejudicial effect exceeded its probative value.

An implication of this analysis is that the last-mentioned discretion must be exercised in a way that recognises the absolute and essential nature of the accused’s right to a fair trial. One may question whether it is appropriate to exclude this right from the reliability principle, if indeed that is what the Canadian Court intended. It seems directly applicable to the safety aspect of reliability (how could it be safe to admit a statement if the accused’s inability to cross-examine its maker could give rise to a real risk of bias?). It may be that the New Zealand legislation has better placed the Bill of Rights concerns as one of the purposes of the Evidence Act 2006, second only to the provision of logical rules. In that context it has a bearing on all the rules, and the accused’s absolute and essential right to a fair trial remains an overarching requirement.

The balance of probabilities

Sometimes, cases that are not quite interesting enough to warrant a blog entry here, nevertheless contain dicta that are worth noting.

Such a case is Sharma v DPP and others (Trinidad and Tobago) [2006] UKPC 57 (30 November 2006). The relatively uninteresting bit of the case is its recognition that a prosecutorial decision to file criminal charges can be subject to judicial review. Here, however, there was insufficient evidence of official misconduct to warrant leave being given to institute review proceedings. While there are some examples of successful reviews of decisions not to prosecute, there is, according to the Privy Council, no English case where a decision to prosecute has been reviewed.

One can understand that absence of example, because the more appropriate recourse would be an application for a stay of proceedings on the grounds that to continue with the prosecution would be an abuse of process.

However, the interesting point I wish to draw attention to in this case concerns what is usually called the civil standard of proof: proof on the balance of probabilities. At para 14 of their joint judgment, Lords Bingham and Walker quoted with approval an English Court of Appeal case, R(N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, [2006] QB 468 at para 62:

“… the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.”

The standard of proof on the balance of probabilities is frequently used in criminal law in relation to issues such as proof of the defence of insanity, proof of the admissibility of evidence, and proof of an issue by the defence where a statute specifies that that is the standard. It is also applied, exceptionally, to some findings of fact at sentencing, for example proof that specified property was the proceeds of offending.

In some cases the courts have said that the civil standard has the advantage of flexibility: where the issue is a serious one, the standard increases, tending to become akin to proof beyond reasonable doubt for really serious issues. That, it may now be seen, is the wrong way to look at what is going on; the standard is not increased, rather, more cogent evidence is required to satisfy proof on the balance of probabilities, as the issue becomes more serious.

What, one may wonder, is the difference? Well, imagine a case where, at sentencing, the judge has to decide whether certain property represents the proceeds of criminal offending. If it does, a fine may be imposed to represent the value of those proceeds. An illustration is s 39(1)(b) of the Misuse of Drugs Amendment Act 1978[NZ]. In this context, the “fine” is a means of depriving the offender of the benefit of his offending, rather than a punishment, so the civil standard of proof here is appropriate. Nevertheless, the issue is a serious one, especially where the property is valuable and loss of its value may have an adverse effect on innocent people. In the absence of an explanation for how he acquired the property lawfully, the court will be entitled to infer that it was indeed obtained with the proceeds of offending. That may be the ordinary and natural inference, although evidence for it may be slight. It may be a matter of common sense, rather than actual proof. On the other hand, the offender may provide evidence that, for example, at the relevant time he had recently inherited money which he used to pay for the property in question. Unlikely though that explanation may be, he may nevertheless be able to provide cogent evidence in support of his assertion.

Here, if (as is the case) the standard does not increase but the requirement for cogency does, the offender may well be able to establish, on the balance of probabilities, that he did buy the property with inherited money. And, similarly, the prosecution, having a common sense inference but little evidence to back it up, would fail to establish its case on the balance of probabilities. If, however, the seriousness of the issue meant that the standard of proof increased, then, notwithstanding the cogency of his evidence that he inherited the money, the court might still find that the more common sense inference prevailed: while he could establish lawful purchase to a likelihood of, say 51%, he could not reach the higher standard that the circumstances required.

It will be important to get judges to see the difference in these approaches to the meaning of the balance of probabilities. The difference is rather subtle. If the cogency of the required proof increases to a likelihood of, say, 60% in favour, why isn't that an increase in the standard of proof? "Balance" of probabilities suggests a more even contest. Nevertheless, the focus appears to be on the cogency of the evidence for each competing proposition, not on some imaginary shifting standard of proof.

[Update: The European Court of Human Rights rejects the English approach and holds that the strength of the evidence needed to meet the standard of proof does not change with the seriousness of the issue: Saadi v Italy [2008] ECtHR 179 at 140.]

Attempting to conspire

A good example of a policy decision about the scope of criminal law comes from the Supreme Court of Canada in R v Dery [2006] SCC 53 (23 November 2006). At issue was whether there should be an offence of attempting to conspire to commit an offence. There was no legislative provision determining this question, so it concerned the scope of the common law.

The Court held unanimously that there is no offence of attempting to conspire: acts preceding conspiracy are not sufficiently proximate to a substantive offence to warrant criminal sanction.

This decision highlights the meaning of “agreement” in the context of conspiracy. A criminal conspiracy is an agreement to commit an offence. Imagine two people, A and B, who discuss committing an offence; A is very keen that they should do so, but B wants more time to decide and tells A that he will send him a text message about this later. B leaves A and later decides that, yes, he will agree to commit the proposed offence with B, so he sends him a text message to that effect. However, the message is never received by A.

Here, B has tried to agree with A to commit the offence. He has done what A expects him to do to agree. He believes they have an agreement. Should B be guilty of attempting to conspire with A? His position is different from that of A, who, not having received any communication from B, does not believe they have reached agreement, although he hopes they have. A would not be guilty of conspiracy with B.

While it might be acceptable, in circumstances like this, to hold B guilty while A escapes liability, the legal concept of agreement as a combination of minds prevents this. The law looks at potential harm as the justification for imposing criminal liability, and for conspiracy it is the harm that arises from the combination of minds, directed at the commission of an offence, that warrants criminal sanction. While, in the hypothetical discussed here, B’s state of mind is that of a conspirator, the danger he poses is lessened because A is unaware of B’s agreement. It is often said that a person is not to be punished for his thoughts alone, and in the absence of a combination of minds B’s individual liability must depend on whether he does any other act which is sufficiently proximate to the commission of a substantive offence to make him liable for the attempt to commit that offence.

We are, of course, focusing on liability for an attempt to conspire. It should not be thought that A will escape all liability, for consideration will have to be given to incitement. It may be that A is liable for inciting B to commit the crime which was the objective he discussed with B. Further questions arise here, concerning what “inciting” involves. If it is no more than trying to arouse another person’s interest in committing an offence, then A would be liable whatever B decided; but, if inciting requires the actual arousal of that interest in the mind of the other person, then A is only liable if B (as he did in the above hypothetical) becomes interested in the commission of the offence. This latter approach would be consistent with the harm-based justification for imposition of criminal liability. However, the common law interpretation is different: inciting does not require the creation of an interest in the commission of the offence, mere encouragement being sufficient. Adams on Criminal Law puts it this way, at CA66.17(2):

““Inciting” means to urge or spur on by encouragement, persuasion, or coercion. See Burnard v Police [1996] 1 NZLR 566; R v Tamatea (2003) 20 CRNZ 363, and the following decisions at common law on the meaning of the term in the inchoate offence of incitement: Invicta Plastics Ltd v Clare [1976] RTR 251; R v Hendrickson [1977] Crim LR 356; R v Fitzmaurice [1983] QB 1083; R v James (1985) 82 Cr App R 226; Race Relations Board v Applin [1973] QB 815.”

A leading New Zealand case on incitement, consistent with this statement of the law, is R v Schriek [1997] 2 NZLR 139; (1996) 14 CRNZ 449; 3 HRNZ 583 (CA). The position may therefore be summarised as follows: criminal liability requires that the accused caused harm, and as far as conspiracy is concerned the minimum harm needed for liability is, consistent with the decision of the Supreme Court of Canada in R v Dery, the existence of an agreement to commit an offence. Such an agreement does not exist without communication between the two parties to it (or, where there are more than two parties, between at least two of them). But, where incitement is concerned, the necessary degree of harm has been held to arise from mere encouragement, whether or not an interest in offending is aroused. This inconsistency in policy will require attention.

November hiatus

Its time for a vacation! Blog entries will resume in December. 

Perceptions of bias

Despite their almost constant preoccupation with the fairness of trials, some senior appellate courts still have difficulty in appreciating what fairness means. Last week, the European Court of Human Rights corrected a House of Lords decision in a case where the fairness of a trial was critical: Martin v United Kingdom [2006] ECHR 890 (24 October 2006).

In Martin, the accused (the applicant in the ECHR) had been tried by a Court Martial in Germany, although he was a British civilian. He came within the jurisdiction of the Court Martial because he was visiting a family member who was in the military at a base in Germany, at the time when the alleged offending, a murder, occurred. The jurisdictional arrangements complied with United Kingdom legislation. The German authorities had waived jurisdiction, and the Court Martial convened under UK law.

Characteristics of the military court that were important were that a superior officer presided over the 7 member tribunal, and only two members were civilians (from the United Kingdom).

The House of Lords had approached the issue of trial fairness by asking whether there had been any unfairness which might have rendered the verdict unsafe: see the extract from Lord Hope’s speech, quoted by the ECHR at para 20 of Martin. The error of this approach is the emphasis on pragmatism at the expense of formalism.

Fairness requires absence of bias, and even people who are “obviously” guilty - so that pragmatism requires conviction - must be tried by a court that is not biased against them - the formal requirement of fairness. The ECHR pointed out in para 42 of Martin that there are two aspects to impartiality: the tribunal must be subjectively free of bias, and there must be sufficient procedural guarantees to exclude any legitimate objective doubt about that.

The abstract jurisdictional criteria established in legislation were not a sufficient guarantee of absence of actual or perceived bias (para 44), as the issue had to be determined in the circumstances of each case. Here, the structure and procedure of the applicant’s Court Martial were sufficient to raise a legitimate fear as to its lack of independence and impartiality. The judgment does not particularise the evidence that supported this conclusion, but, interestingly, it holds that here, even the presence of a Vice-Judge Advocate General (a senior judge appointed by the Lord Chancellor, who could give the tribunal binding directions on the law) was insufficient: he did not have influence and involvement in the tribunal proceedings sufficient to guarantee the independence and impartiality of the applicant’s court-martial (para 52).

The ECHR declared a breach of Article 6 (the right to trial by a fair and independent tribunal) and awarded damages to the applicant. Subject to an appeal to the Grand Chamber, the conviction will be quashed pursuant to domestic law: Randall v R [2002] 1 WLR 2237, 2251 (PC): “The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.”

Unfortunately, the judgment in Martin is insufficiently detailed to dispel some doubts about its correctness. If this Court Martial was unfair to the civilian accused, would the same proceedings have been unfair to an accused who viewed them a soldier? If the test for this sort of bias is whether an objective observer would have concerns about the fairness of the proceedings, should that observer be conceptualised as if he were in the military, or should he be a civilian? Should this characteristic of the observer change according to whether the proceedings are against a soldier or a civilian?

It may be that, in the circumstances of this case that are not revealed in the judgment, even an accused who was in the armed services would have had legitimate objective concerns about the fairness of the proceedings because of the dominance of the superior officer who presided.

"Perverse" acquittal, or "conscience" verdict?

One of the things that keeps appellate courts busy is the tendency of judges to overlook the fundamentals of the law. I noted one such fundamental in commenting on R v Wanhalla on 25 August 2006: the jury’s power to perversely acquit an accused means that it would be wrong for the judge to instruct the jury that they “must” convict if they find the case proved beyond reasonable doubt.

This very point was made yesterday by the Supreme Court of Canada: R v Krieger [2006] SCC 47 (26 October 2006). The Court ordered a retrial because, in directing the jury that they must convict, the judge had deprived the accused of the right to trial by jury. Except where the judge directs them to acquit, the verdict must be that of the jury. Depriving the accused of trial by jury was necessarily a miscarriage of justice and required the quashing of the conviction.

The Court approved the views to this effect of Sir Patrick (subsequently, Lord) Devlin in his book “The Judge” (1979), pp 142-143 and 157. He said, at 157, that it doesn’t matter how obvious it may be to the judge that the accused is guilty, the verdict must be that of the jury, and he called this, in an italicised passage, “the first and traditional protection that the law gives to an accused”. The second protection is that, on appeal, a conviction will be quashed if the judges find a “lurking doubt” that they consider the jury has overlooked. Devlin added: “…the second is an addition to the first and not a substitute for it.”

In Krieger, reference was made to Lord Mansfield’s observation in R. v. Shipley (1784), 4 Dougl. 73, 99 E.R. 774, at p. 824:

“It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.”

I add that readers of Geoffrey Robertson’s “The Justice Game” (1998) will recall his remark that “[t]his remains the most significant feature of English criminal law.” The rule that the decision to convict can only be made by the jury operates, especially in politically-motivated prosecutions, to ensure that “the only enemies of the State who are put in prison are enemies of the people as well.”

That misdirections of this kind should occur reminds us that judges must not be allowed to lose sight of the fundamentals. See also my comments on R v Wang, blogged on 14 February 2005.

[Update: in 2015 Lord Judge referred to perverse verdicts as constitutional safeguards against barbaric laws in a discussion with Chief Justice Roberts on the 800^th anniversary of the sealing of the first issue of Magna Carta, available here on YouTube: view from time setting 37:58.]

"Unfair to try" or "to try unfairly"?

Boolell v The State (Mauritius) [2006] UKPC 46 (16 October 2006) illustrates the difference between the questions, (i) whether the trial was, or would be, fair, and (ii) whether it would be fair to put the accused on trial. The case also illustrates how easy it is to confuse these questions.

In Mauritius, the right to a fair trial is expressed, in s 10(1) of the Constitution, in a phrase giving the right to a “fair hearing within a reasonable time by an independent and impartial court established by law”. This has given rise to the question whether an accused can only complain of delay if it has adversely affected his right to a fair hearing. (In contrast, the New Zealand Bill of Rights Act 1990, s 25(b), isolates the right to trial without undue delay, from the separate right to a fair hearing in s 25(a)).

This question, which also arises under Art 6(1) of the ECHR, was resolved by the House of Lords in Attorney General's Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72, where it was held that a breach of the right to a hearing without undue delay can be established without the accused having to show that the trial would be unfair. Consequences of a breach of each right need not, therefore, be the same. In Boolell the Privy Council noted that Lord Bingham in Attorney-General’s Reference (No 2 of 2001) had “quoted with approval the aphorism of Hardie Boys J in the New Zealand case of Martin v Tauranga District Court [1995] 2 NZLR 419, 432: "The right is to trial without undue delay; it is not a right not to be tried after undue delay."” That is to say, undue delay does not give rise to a right not to be tried at all.

On the question of remedies, the Privy Council in Boolell followed Attorney-General’s Reference (No 2 of 2001), holding that a stay of proceedings is not appropriate unless (a) there can no longer be a fair hearing, or (b) it would otherwise be unfair to try the accused (para 31).

I have emphasised the word “otherwise” here to make the point that trial unfairness is only a subset of the set of occasions where it would be unfair to try the accused. In para 38 of Boolell, Lord Carswell, delivering the judgment of their lordships, confuses this point. He deals with a submission that the trial was unfair by applying criteria relevant to fairness in the “otherwise” sense. The “test” – as Lord Carswell called it - as laid down by Lord Bingham at para 25 of Attorney-General’s Reference (No 2 of 2001), is:

“25. The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, but Mr Emmerson contended that the category should not be confined to such cases. That principle may be broadly accepted. There may well be cases (of which Darmalingum v The State [2000] 1 WLR 2303 is an example) where the delay is of such an order, or where a prosecutor's breach of professional duty is such (Martin v Tauranga District Court [1995] 2 NZLR 419 may be an example), as to make it unfair that the proceedings against a defendant should continue. It would be unwise to attempt to describe such cases in advance. They will be recognisable when they appear. Such cases will however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant's Convention right.”

Lord Bingham is not here talking about cases where the trial would be unfair. Lord Carswell’s slip highlights the fact that criteria for determining the fairness of a hearing have yet to be established. My view is that the fairness of a hearing is to be determined by whether it would involve a biased determination of the facts, or an inaccurate application of the law to the facts. Delay may give rise to an unfair trial if it results in the unavailability of witnesses or evidence that could assist the defence. The matters relied on by counsel for the appellant in Boolell, para 38, seem not to involve delay but rather to focus on aspects of the actual conduct of the trial (its length, its interruptions, restrictions imposed on the conduct of the defence, and comments made by the judge that suggested bias). The Privy Council may well have been correct to conclude that, in the circumstances of this case, these did not amount to trial unfairness. In holding that the appellant’s right to a trial within a reasonable time had been breached (para 37), the appropriate remedy was the declaration of the breach and the quashing of the sentence of imprisonment, with a fine being substituted, although complexities concerning how the quantum should be calculated are not explored.

NZ criminal law may be fair!

Readers of these blogs will be pleased to see that criticisms of Moloney v New Zealand (see blog entry for 3 May 2006, and the article developed from that, “A little unfairness goes a long way” [2006] NZLJ 210) turned out to be essentially the reasons that an appeal from that decision was allowed today: New Zealand v Moloney [2006] FCAFC 143 (5 October 2006).

The Full Court (5 judges) of the Australian Federal Court held that the judge had been wrong to conclude that differences, as between New Zealand and Australia, in rules of procedure and evidence concerning the conduct of criminal trials, permitted the conclusion that a trial in New Zealand would be unfair. Overruling him, the Full Court made the following points:

• The close relation between New Zealand and Australia, reflected in the abbreviated extradition procedure which is analogous to that which applies within Australia, permits an assumption of trial fairness in New Zealand (paras 2, 21, 22, 36, 37).

• The approach to warning juries in cases concerning historical allegations of sexual abuse is not significantly different as between Australia and New Zealand: both have the objective of a fair trial, and both recognise that warnings must be tailored to the circumstances of the trial. It was wrong to assume that a judge in New Zealand would not give a warning (212, 215, 216, 219, 221, 222, 224, 226).
  

• As far as trials involving multiple complainants are concerned, it is a matter for the trial judge in New Zealand to decide whether severance is appropriate or whether similar fact evidence is admissible. Such differences as there are between the laws of Australia and New Zealand on these points is little more than a different formulation of the judge's discretion to exclude unfairly prejudicial evidence. Conclusions about the likelihood of joint trials were unwarranted at this stage (228, 229, 231).
  

It has been announced that the unsuccessful respondents in this case will seek leave to appeal to the High Court of Australia. [Update: on 16 October 2006 the High Court of Australia declined leave to appeal.]
 

Challenging detention pending bail

 A prompt and automatic opportunity to challenge the lawfulness of detention is a key provision to prevent arbitrary detention and to protect the person against the risk of ill-treatment and abuse of power by officials: McKay v United Kingdom [GC] [2006] ECHR 820 (3 October 2006). This is distinct from the opportunity to apply for bail, which must also be afforded within a reasonable time. If the person is arbitrarily detained, he must be released immediately and no question of his being encumbered with bail obligations arises.

Sometimes people who are arrested are brought before judicial officers who lack the power to inquire into the lawfulness of detention. In McKay the Grand Chamber observed that this had occurred in some cases from Malta (para 37).

A question arises, for people in New Zealand, whether the Habeas Corpus Act 2001, which requires that these applications be made to judges of the High Court, complies with the equivalent right to that considered in McKay. This right, in Article 9 para 4 of the ICCPR, and in s 23(c) of the Bill of Rights Act 1990, the former being unspecific as to promptness, while the latter requires absence of delay. The risk of non-compliance with this right arises because High Court judges are not the judges before whom a person appears initially. Of course, once the High Court is aware of an application under the Habeas Corpus Act 2001, it gives the matter top priority (s 9), but a lapse of time may nevertheless occur.

For example, a person arrested on a Friday may not be brought before a court until Saturday when a community magistrate, District Court Registrar, or Justice of the Peace may be sitting. There may be no opportunity to provide legal advice other than through a duty solicitor. The person will, if held in custody, be remanded to the following Monday, when the judicial official will be a District Court Judge. Legal aid counsel may be assigned on that occasion, but in some cases a bail application will not be able to be heard. For example, a person who has a previous conviction for a drug dealing offence can only apply to the High Court for bail on a fresh drug dealing charge: Bail Act 2000, s 16. Some High Court Registries restrict bail applications to 2 afternoons a week, and not all High Courts in the country have judges available throughout the year.

There is thus the risk of breach of s 23(c) of the Bill of Rights:

“23 Rights of persons arrested or detained

(1) Everyone who is arrested or who is detained under any enactment—
(a) Shall be informed at the time of the arrest or detention of the reason for it; and
(b) Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and
(c) Shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.”

There is a difference here between the expression “without delay” (admittedly, more strict than is required by ICCPR), and the phrase in s 23(3) “as soon as possible”:

“(3) Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.”

In McKay, the ECtHR held, para 33:

“The judicial control on the first appearance of an arrested individual must above all be prompt, to allow detection of any ill-treatment and to keep to a minimum any unjustified interference with individual liberty. The strict time constraint imposed by this requirement leaves little flexibility in interpretation, otherwise there would be a serious weakening of a procedural guarantee to the detriment of the individual and the risk of impairing the very essence of the right protected by this provision (Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145 B, § 62, where periods of more than four days in detention without appearance before a judge were in violation of Article 5 § 3, even in the special context of terrorist investigations).”

And at, para 34, the Grand Chamber emphasised the significant procedural point that review of the legality of detention must be automatic:

“The review must be automatic and cannot depend on the application of the detained person; in this respect it must be distinguished from Article 5 § 4 which gives a detained person the right to apply for release [for example, on bail]. The automatic nature of the review is necessary to fulfil the purpose of the paragraph, as a person subjected to ill-treatment might be incapable of lodging an application asking for a judge to review their detention; the same might also be true of other vulnerable categories of arrested person, such as the mentally frail or those ignorant of the language of the judicial officer (e.g. Aquilina v. Malta [GC], no. 25642/94, § 49, ECHR 1999 III).”

Periods of delay of more than four days between commencement of detention and review of the legality of the detention will be unlikely to meet international standards. There may be a need to extend powers of review, akin to habeas corpus applications, to the court of first instance, with corresponding enhancement, if necessary, of judicial training.

Going international

Strip searches that are not carried out in compliance with proper safeguards to protect the dignity of those being searched may attract remedies under international law. This occurred in Wainwright v United Kingdom [2006] ECHR 807 (26 September 2006), where the European Court of Human Rights awarded damages, which could not be obtained under domestic law.

Wainright concerned strip searches of visitors to a prison, carried out with the aim of preventing the entry of drugs. The officials who carried out the searches did not comply with rules that had been promulgated, and therefore they were not within the terms of Article 8, para 2, of the European Convention on Human Rights as being “necessary in a democratic society”. In reaching this conclusion the European Court noted that domestic law in the UK, as held in the House of Lords decision in this case, did not provide a remedy for negligent breach of privacy. This deficiency amounted to a breach of Article 13 of ECHR and the Court awarded damages. The actual sums were fairly modest, the Court noting that it does not make aggravated or exemplary damages awards.

In other countries, issues of this sort may be dealt with by the United Nations Committee on Human Rights, if the relevant domestic law did not provide a remedy. The International Convention on Civil and Political Rights has provisions concerning the right not to be subjected to inhuman or degrading treatment (Article 7), and the right to have one’s private life respected (Art 17). The First Optional Protocol to the ICCPR enables individuals claiming to be victims of violations of ICCPR rights to bring communications to the Human Rights Committee, which may, ultimately, “forward its views to the State Party concerned and to the individual” (Art 5 para 4). While this falls short of the corresponding declaration in Art 13 of ECHR that “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority …”, and Art 41 “…the Court [ECtHR] shall, if necessary, afford just satisfaction to the injured party”, the forwarding by the Human Rights Committee of its views is a significant matter.

In Taunoa v Attorney-General [2006] NZSC 30 (12 April 2006) the Supreme Court granted leave to appeal to four appellants who claimed that, as prisoners, they had been subjected to breaches of s 9 and 27 of the New Zealand Bill of Rights Act 1990, the questions being whether there had been such breaches and, if so, what remedy was appropriate. One of the preconditions for bringing a communication to the Human Rights Committee is that domestic remedies, if any, must be exhausted. So, if unsuccessful before the Supreme Court, Taunoa may enter the international arena.

Negligent Barristers

Negligent barristers will – or should, despite their negligence – sit up straight and contemplate the Supreme Court’s removal of barristers’ immunity from suit for negligence: Chamberlains v Lai [2006] NZSC 70 (11 September 2006). The Court upheld the Court of Appeal decision in respect of civil cases, and extended it to include criminal cases.

Questions that this raises include:

• What sort of conduct can attract this liability: voluntary service at a citizens’ advice bureau, duty soliciting by barristers, pro bono services, preliminary advice which does not lead to engagement as counsel, advice concerning plea, applications for bail, discovery and other preparatory work, legal research, conduct of courtroom representation?
• Does a final decision by a court in the proceedings create an estoppel? To what extent would a collateral challenge to such a decision, as part of an action for negligence, amount to an abuse of process?
• What is the standard of conduct that amounts to negligence? Does it, for example, equate to professional misconduct?
• How should damages be assessed? If the client is guilty, does he have a duty to plead guilty at an early stage so as to mitigate any loss that might be suffered by endeavours (negligently conducted) to secure an acquittal?
• Can the barrister enter into a contract with the client to limit liability for negligence?
• Is this liability retrospective, and, if so, how far back does it extend?

The Supreme Court does not here seek to answer these questions, but rather recognises that developments in the law will be necessary as they are raised in particular cases.

Some indications of what may happen are given. In their joint judgment, Elias CJ, Gault and Keith JJ touched on issue estoppel, double jeopardy and abuse of process (paras 58-59), and concluded that it would be unwise to limit the potential use of the power to strike out proceedings to prevent an abuse of process (para 61). While a collateral challenge to a subsisting conviction may be an abuse of process, that will not always be so, and it is necessary to recognise that there may be exceptions (para 66). Tipping J disagreed on this point, to the extent of preferring a rule preventing collateral challenges to subsisting convictions (para 189), but Thomas J sided with the majority, citing his published views on the advantages of pragmatism over formalism (para 207).

Other matters for future consideration are mentioned in para 75:

" … Following the lifting of the immunity, it may well be necessary to consider whether reasons of legal policy impact upon liability for the negligent conduct of criminal proceedings. The extent to which the public interest requires redress to be obtained only or principally within the remedies provided by the criminal justice system itself will have to be considered. It will be necessary to consider too whether there are any limits to liability."

The standard of care was alluded to in para 78:

" … The application of liability "should not stifle advocates’ independence of mind and action in the manner in which they conduct litigation and advise their clients" [citing Moy v Pettman Smith [2005] 1 WLR 581, 599 per Lord Carswell]. Nor should the standard of care imposed be such as to force advocates into defensive lawyering which is contrary to the public interest in the fair and efficient operation of the criminal justice system. And establishing that negligence is causative of loss will not be easy in circumstances where the direct cause of loss is the imposition of an independent judgment."

Tipping J observed that an action for negligence could hardly succeed if an appeal against conviction had not succeeded (para 190):

"The decision of this Court in Sungsuwan v R [2006] 1 NZLR 730 makes it clear that the conduct of counsel, whether negligent or not, can afford grounds for setting aside a conviction if the Court of Appeal is of the view that there is a real risk that the verdict of the jury is unsafe. If that cannot be shown on appeal, counsel’s conduct could hardly later be found on the balance of probabilities to have led to an unsafe verdict. Real risk is a significantly lower standard to meet than more probable than not."

And he added, at para 200-201:

"The problems are likely to be more substantial in the criminal arena. Significant policy issues can be forecast. Should the law of torts award damages for negligence when the loss derives from a lawful period of imprisonment? Should the law impose on barristers a duty of care when other participants in the system, albeit for different reasons, owe no such duty or are immune from any liability for a breach?

"[201]Contribution problems may be substantial. Seldom is a conviction likely to be set aside solely on the grounds of counsel’s negligence. The Judge may have had some responsibility to guard the accused against certain types of negligence by counsel. While some of these points, and no doubt others, could be invoked in favour of retaining barristers’ immunity, I consider they are better addressed as facets of legal policy in the context where they truly belong, rather than as support for a blanket immunity for barristers."

So, we enter upon interesting times. And, potentially lucrative ones for insurance companies.

Checking the foundations

On this, the second anniversary of the start of this blogsite, when I am about to comment on a case where the meaning of "beyond reasonable doubt" was examined, and remembering that yesterday our Supreme Court ruled on the accused’s right to a fair trial, one might be excused for thinking that criminal law had only recently been invented. Surely, these fundamentals must have been settled centuries ago?

Well, criminal law is a living thing, with its basic assumptions and rules constantly under review. It involves the handling of complex concepts, and other disciplines, especially psychology, can make a significant contribution to our perceptions of what is currently appropriate.

A Full Bench of the New Zealand Court of Appeal, in R v Wanhalla 24/8/06, CA321/05, considered whether there should be adjustments to the standard way in which judges should direct juries on what the criminal standard of proof, proof "beyond a reasonable doubt" means.

In a joint judgment, William Young P, Chambers and Robertson JJ held that, although this was not intended to be a mandatory formula, the following direction should be of assistance in many cases (para 49):

"The starting point is the presumption of innocence. You must treat the accused as innocent until the Crown has proved his or her guilt. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his or her innocence.

"The Crown must prove that the accused is guilty beyond reasonable doubt. Proof beyond reasonable doubt is a very high standard of proof which the Crown will have met only if, at the end of the case, you are sure that the accused is guilty.

"It is not enough for the Crown to persuade you that the accused is probably guilty or even that he or she is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events and the Crown does not have to do so.

"What then is reasonable doubt? A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.

"In summary, if, after careful and impartial consideration of the evidence, you are sure that the accused is guilty you must find him or her guilty. On the other hand, if you are not sure that the accused is guilty, you must find him or her not guilty." [emphasis added]

It was also held that best practice is to avoid expressing reasonable doubt in terms of percentages (a point on which Glazebrook J had some doubt: para 107, 109), and not to use the "domestic analogy" of telling jurors that they should approach the matter as if they were making an important decision in their own lives (the Judges were more clearly unanimous on this point).

In her judgment, Glazebrook J embarked on a scholarly analysis of various jury studies that psychologists and legal experts have carried out. Her main concern was that jurors may be too inclined to be tolerant of prosecution failures of proof, ie too reluctant to recognise a doubt as reasonable. Some studies have found that jurors tend to think in terms of estimates of probabilities. Proof of the prosecution case to the standard of a likelihood of 75% often seems to be thought sufficient (some jurors think 50% is sufficient!), and Glazebrook J pointed out (para 107, 109) that it is arguable that 100% proof should be required, as the reasonable doubt standard is closer to that than it is to 75%.

Hammond J (who has the advantage over Glazebrook J of having been an experienced trial judge) felt that the arguments for and against revision of the standard approach to direction on reasonable doubt were evenly balanced. In fairness to the Crown, absolute certainty is not required (para 165), and therefore Hammond J did not favour the mathematisation of directions. He noted that experience has shown the need to emphasise that the standard is higher than even probabilities (para 167). He agreed that the direction proposed in the joint judgment (para 49, above) would meet the needs of the vast majority of cases, yet also observed that the actual direction in a particular case should be left to the discretion of the trial judge (para 171, citing Privy Council authority for that).

My concern is with one aspect of the direction in the joint judgment (above), a concern not mentioned by any of the Judges. This focuses on the word I have italicised. A direction that the jury "must" find the accused guilty if sure that the accused is guilty, is contrary to an important constitutional safeguard. This safeguard, which in practice is one of those things that dare not speak its name, and so is never mentioned although ever-present, is the power of the jury to perversely acquit the accused. Occasions for them to do this may arise if they feel that something deeply objectionable occurred in the police investigation of the case, or in the presentation of the prosecution evidence. Authority for this is discussed in R v Wang, blogged here on 14 February 2005.

The absolute right to a fair trial

The Supreme Court of New Zealand has accepted that the accused’s right to a fair trial is absolute, that breach of this right is a substantial miscarriage of justice so that the proviso cannot be applied, and a conviction obtained in an unfair trial must be quashed regardless of the strength of the evidence against the accused: Condon v R [2006] NZSC 62 (23 August 2006) at paras 76 - 78. The Court also reasoned that, if the error had not occurred, it could not be said that the outcome of the trial would have been the same, therefore there was unfairness in the trial and that accordingly a substantial miscarriage of justice had occurred (para 89).

This places unfairness in its proper position in relation to substantial miscarriage of justice, a position from which there had seemed to be some slippage in the Court’s earlier decision in Sungsuwan v R (blogged here 26 August 2005).

Also important in Condon is the Court’s indication of the burden of proof on fairness issues (para 81). The case concerned breach of the accused’s right to legal representation, a right described as one of the constituent elements of, or subsidiary rights to, the accused’s right to a fair trial (para 76). It held that if the court found that the subsidiary right was breached, the onus shifted to the prosecution to satisfy the Court that the trial was not unfair.

Although the Court did not specify standards of proof (more accurately, standards of persuasion) here, it did indicate that it would not easily accept that the trial had been fair: para 79.

Further indication of the importance of the right to a fair trial is the Court’s recognition that, even if the subsidiary right was not found to have been breached, the overall fairness of the trial would be examined, although in such a case the burden would be on the appellant (para 80):

"… if the accused makes an informed choice to go to trial without a lawyer, or is rightly refused legal aid, or by conduct creates a situation in which, on a proper balancing of the various interests, further delay in the holding of the trial is not to be tolerated, there will have been no breach of the s 24 rights. But even in such circumstances an appeal Court must still examine the overall fairness of the trial, as was done in the New Zealand cases cited earlier, because the right to a fair trial cannot be compromised – an accused is not validly convicted if the trial is for any reason unfair. If there has been no breach of the appellant’s right to representation, because the trial Court was properly "satisfied" in terms of s 30(2) of the Sentencing Act, the conviction will not be set aside unless the appellant can persuade the Court that the trial was unfair because the defence could not, in the particular case, have been adequately conducted without the assistance of counsel…."

We have seen in these blogs that pragmatism (which would lead to the dismissal of appeals against convictions where there was no doubt about the appellant’s guilt) and formalism (which places primacy on the need for compliance with procedural fairness at trial) have been emphasised differently by judges in all the jurisdictions considered here. Although Condon concludes by linking outcome in the absence of error (pragmatism) with substantial miscarriage of justice (para 89), much of the jurisprudence the Court accepts is formalist. It is clear that the Court endorsed the dominance of the formalist approach and that even if the evidence against the appellant had been overwhelming, the absence of a fair trial would have amounted to a substantial miscarriage of justice.

On a long view of the developments in this area of the law, Condon can be seen as settling a fundamental difference between judges on the status of a criminal trial. The view that has been rejected saw criminal trials as no different from civil trials, except for the standard of proof of the ultimate issue, and also except for a special rule concerning proof to the same high standard of the voluntariness of confessions if they were to become admissible evidence. From this perspective, trials function as a search for the truth, a search which must proceed to its conclusion despite circumstances that create unfairness to either side. While judges will try to be fair to each side, other interests may require something less than absolute fairness to the defence. Examples of such other interests might be the privacy interests of a victim, the public interest in bringing those accused of crime to trial (this sometimes being phrased, less circumspectly, as the public interest in bringing offenders to justice), and, more vaguely, the interests of justice, which was seen as an overarching consideration. This view of criminal trials was taken by the authors of our two leading textbooks on the Bill of Rights.

The alternative view, accepted by the Supreme Court in Condon, is that criminal trials are sui generis, with special rules needed to accommodate the considerations peculiar to criminal law. Criminal trials are not necessarily concerned merely with the question of guilt. They can have to deal with the problem of how to react to misconduct by officials in the gathering of evidence. This required development of the concept of abuse of process, and the recognition of two senses in which the term “fairness” is used. Public policy fairness has become the grounds on which wrongfully obtained evidence may, after a balancing of relevant interests, be ruled inadmissible. This is distinct from the second sort of fairness: trial fairness. No balancing of interests occurs to diminish the accused’s right to a fair trial, which is absolute.

Establishing the broad characteristics of the accused’s right to a fair trial (ie that it is absolute and essential), is only the start of securing this right. Giving content to the meaning of “fair trial” comes next. I have, in recent publications, developed the absolutist position by suggesting that a fair trial is one where the law is correctly applied to facts that are determined without bias. There is, inevitably, some circularity in this, insofar as the law is assumed to be fair. That is why, in New Zealand, the Evidence Bill should be attracting our attention. Some of its current provisions will operate unfairly to an accused. A central concept in trial fairness is the absence of bias, whether bias in the application of the law, or bias in the determination of the facts. Judicial directions to the jury are the final opportunity in a trial to prevent unfairness to the accused, and a rigorous approach to them is essential. Proposals to water them down must be resisted.

Public debates on admissibility

Should the courts encourage public discussion of judicial decisions about the admissibility of evidence? This is one of the important questions raised by the New Zealand Court of Appeal yesterday in TVNZ v Rogers 7/8/06, CA12/06.

Because the decision in Rogers is likely to be appealed to the Supreme Court, I will not discuss the facts of the case in any but the most general of terms. In a criminal trial, evidence of a confession by R was ruled inadmissible and he was acquitted. Subsequently, a television programme was proposed, in which the video of the confession, which the police had given to TVNZ, would be played. The present proceedings concern whether an injunction should issue to prevent that publication.

The decision to rule the confession inadmissible at the criminal trial was, noted the Court of Appeal, not uncontroversial in law. The authorities did not all point in the same direction, and the method of weighing the competing values may have been flawed (see the joint judgment of O’Regan and Panckhurst JJ at [27], and the separate concurring judgment of William Young P at [127]). It is public discussion of this admissibility decision that the Court of Appeal seems to be encouraging.

The joint judgment makes this observation:

"[88] Although there is some substance in the Full Court’s [ie the court below] view that the content of the videotape may not add to informed public debate, it must be borne in mind that an evaluation of the reliability of disputed evidence, and of its importance to the prosecution case, is an aspect of the balancing exercise ordinarily required following a finding that evidence was obtained in breach of a suspect’s rights. The Court should be prepared to expose its reasoning process to scrutiny, to avoid perceptions of an attempt to stifle debate about its decision or about the conduct of the police officers whose conduct was under scrutiny in that decision."

And William Young P added:

"[128] I agree that the underlying issues can be debated without the videotape being shown on national television. But experience shows that arguments are usually more easily understood where they are contextualised. An esoteric argument about the way the New Zealand Bill of Rights Act is applied by the Courts becomes far more accessible to the public if the implications can be assessed by reference to the concrete facts of a particular case. In that context, to prohibit the proposed broadcast of the videotaped confession and reconstruction would necessarily have the tendency to limit legitimate public discussion on questions of genuine public interest."

Well, let us examine that thought. If public discussion is to have a point, it must be fully informed. To be fully informed, it needs to be acquainted with the different considerations that may be relevant to admissibility decisions. This requires some regard for the functions of the criminal trial, and the appropriate balance between truth seeking, on the one hand, and the extent to which police misconduct in the obtaining of evidence should be tolerated, on the other. Two extremes are apparent: admit all probative evidence, or, exclude all evidence tainted by the misconduct of officials.

Members of the public can discuss and decide where on the continuum between these extremes they individually lie. It is plain that unanimity could not be expected, and people may find themselves taking different positions depending on the nature of a particular case.

This is where the utility of publishing the details of R v Rogers (ie the criminal case) may be questioned. It is the sort of case that is likely to attract an extreme position on admissibility. It illustrates a very small part of the continuum of cases, and so is likely to illuminate only a small part of the proposed admissibility debate. This gives rise to synecdoche: the taking of a part of something to represent its whole. The entire question of how admissibility of wrongfully obtained evidence should be decided is not fairly posed by an extreme example.

The Court of Appeal is alert to the public’s tendency to employ synecdoche. In a decision delivered the same day as Rogers, by a differently constituted bench ("bench": metonymy and synecdoche!), the Court of Appeal in Marfart and Prieur v TVNZ 7/8/06, CA92/05 said:

"[62] One of the complaints made - with considerable force - against contemporary media is that what it routinely does in forming mental pictures is to use synecdoche: the portrayal of a part for the whole. (See Miller The Anatomy of Disgust (1998)). It is a common and lamentable part of entering the public gaze that the media tends to promote one salient feature of an incident (often glorified as a 30-second sound
byte), with unfortunate and unfair results. Not the least is a refusal (or at least a misportrayal) which fails to respect the fact that people may well be different in private than in public."

Pragmatism will dictate different approaches to admissibility decisions, depending on who is looking at the decision. Lawyers will look for an approach that is predictable in outcome, so that the likely prospects of a successful challenge can be assessed. Judges will look for an approach that balances the multitude of relevant considerations – interests of the accused, the prosecution, victims, the public, and the overarching need for a fair trial. Members of the public, as interested observers of the administration of justice, will look for an approach to admissibility decisions that reflects their own values.

The central idea is that of "instrumental truth" in the sense used by William James in his second lecture, entitled "What Pragmatism Means", in Pragmatism (1907):

"Truth in our ideas and beliefs means … that ideas, (which themselves are but parts of our experience) become true just in so far as they help us to get in to satisfactory relation with other parts of our experience …". (James’s emphasis)

I would apply that to our present context in this way: the right or "true" answer to an admissibility problem is that which most satisfactorily relates to the concerns we perceive as relevant. The point is that different people may see different things as being relevant to the determination of the admissibility of wrongfully obtained evidence. Have the courts adequately taken into account public interests, so that public unease about a particular case is misplaced? Shouldn't the real inquiry be why the police obtained the evidence wrongfully? What inadequacies in police training or attitudes permitted such misconduct to occur?

Reverse onus in the House of Lords

While we in New Zealand await our Supreme Court’s decision in Hansen v R, which will decide the standard of proof placed on the accused by reverse onus provisions in the light of human rights legislation, we note that the House of Lords now finds the reading down of reverse onus provisions a relatively routine matter: O v Crown Court at Harrow [2006] UKHL 42 (26 July 2006).

Here, the House of Lords was concerned with the meaning of "is satisfied" in a provision that required refusal of bail unless the court was satisfied that exceptional circumstances existed (s 25 of the Criminal Justice and Public Order Act 1994[UK]):

"(1) A person who in any proceedings has been charged with or convicted of an offence to which this section applies in circumstances to which it applies shall be granted bail in those proceedings only if the court or, as the case may be, the constable considering the grant of bail is satisfied that there are exceptional circumstances which justify it."

Two approaches to this were considered in the Court of Appeal. Kennedy LJ thought "satisfied" means "considers" and that the question is a matter of judgment for the court, not involving any particular standard of proof. Hooper J, on the other hand, thought that "satisfied" here puts the burden on the bail applicant, and is therefore inconsistent with the ECHR, so s 25 has to be "read down" to place only an evidentiary burden on the bail applicant.

Lords Nicholls and Hutton, and Lady Hale, agreed with Lord Brown; Lord Carswell did too, but examined the difference in interpretation in more detail. He referred, rather obliquely, to Re McClean (blogged here 7 July 2005) in which it was decided, inconsistemtly with the present case, that doubts must be resolved against the prisoner. He held that "satisfied" in s 25 means more than just an exercise of judgment, and that it connotes a burden or presumption, so s 25 has to be read down to comply with convention rights. Thus, Lord Carswell agreed with Hooper J’s approach.

Lord Brown, delivering the leading speech, had a "mild preference" for Hooper J’s approach (para 35). He pointed out that in most cases the decision will be clear cut and that the burden of proof will not assume any relevance. Occasionally, however, the court will be left unsure, and in these cases the default position should be that bail should be granted, and s 25 should be read down to make that plain.

Differences in principle and pragmatism

Appellate judges often disagree over whether an error at trial caused a substantial miscarriage of justice. Finding himself in a minority of one in Bounds v R [2006] HCA 39 (20 July 2006), Kirby J observed, para 85:

"Conclusion: a basic error: I accept that different conclusions are available on this issue. The nature of the controversy and the breadth of the language of the 'proviso' virtually assures the existence of differences of judicial views. Such differences may reflect the diverse values that judges accord to considerations of principle and pragmatism, as they regard them. Those differences appear in many cases in this Court concerned with the 'proviso' … [citing Green v The Queen (1971) 126 CLR 28 at 31; Jones v The Queen (1997) 191 CLR 439; Darkan v The Queen [2006] HCA 34]. They are also reflected in the foregoing differences of opinion in the United States Supreme Court [ie Lane v US 747 US 438 (1986)]."

It seems likely that, on the key point in Bounds, the majority were correct. A second count had been wrongly included in an indictment. The error was that the second offence was purely summary, not triable on indictment. Nevertheless, evidence of its commission would probably have been admissible as similar fact evidence in respect of the only count that should have been in the indictment. The majority (Gleeson CJ, Hayne, Callinan and Crennan JJ) at para 26 held

"… The evidence admitted at the appellant's trial about the downloading of the images the subject of count 2 was very limited. It would have been admissible on the trial of an indictment alleging only count 1."

Kirby J did not think this was so (para 100):

"Nor do I consider that the tender of such material would have been permitted in a trial if that trial had been limited to the indictable offence of possession of child pornography. A judge guarding the fairness of the conduct of such a trial would be properly careful to restrict extraneous, and possibly prejudicial, evidence. By impermissibly charging the two offences in the one indictment, an inter-mixture necessarily occurred. Descriptions or conceptions of the contents of the images became inevitable. It is that inter-mixture, before the jury, that presents the risk of a substantial miscarriage of justice. It is that risk that withholds the application of the 'proviso'."

Apart from the difference of opinion on that issue, Kirby J also differed from the majority on whether the jurisdictional error was, of itself, sufficient to prevent application of the proviso without examination of issues relating to the conduct of the trial. He reasoned (paras 87-88) that the Western Australia legislature had carefully separated the jurisdictions and that the community and the accused are therefore entitled to a trial that conforms to the law and is without jurisdictional flaw.

The majority, however, did focus on what happened at the trial of the count that was properly before the jury (para 13-30). Their conclusion on the trial conduct contrasts with that of Kirby J, who held, para 96:

"… The impermissible inclusion of the second count in the indictment deprived the appellant of a trial that was free from any reference to this extraneous factor [images of bestiality]. It deprived him of the chance of avoiding this added complication in his trial. Specifically, it deprived him of the forensic choices that the separate trial of the offences referred to in the two counts would have entailed."

It is not clear what those "forensic choices" were, even on the basis that the evidence was not (as Kirby J held) admissible as similar fact. Even the mere fact that these images (whatever they might have depicted) were downloaded at a particular time seems to have been relevant to whether the images which were the subject of count 1 were downloaded by the accused (see majority judgment, para 26).

This case is interesting for its references to other cases, including English and United States decisions, where differences of opinion have occurred over how to decide whether an error has caused a trial to be unfair. It is now 99 years since England enacted what has been almost universally adopted as the "proviso", and one would have thought that, by now, appellate judges would have worked out a rational approach to its application, thereby promoting uniformity of result and minimising disagreements. My own view is that the basic problem is that judges have not got to grips with the meaning of the essential requirement of a fair trial. Until judges learn to define the characteristics of trial fairness and to apply them rationally, vagueness over the meaning of "substantial miscarriage of justice" will continue to make the results of appeals difficult to predict.

If one were to apply my own "Fair Trial Analysis", one would identify the following issues in Bounds. Since a fair trial is one where the law is accurately applied to facts determined without bias, the first question is, what errors of law occurred? It was common ground that count 2 should not have been in the indictment. Was the admission of evidence relevant to that count an error? This requires examination of the admissibility of the evidence as similar fact in relation to count 1. The judges in Bounds did not undertake this inquiry in detail, they simply announced their conclusions, and, as noted, Kirby J dissented on this. If it is correct that the evidence was admissible as similar fact, then the question is whether the judge’s direction to the jury on that topic was adequate to ensure that the evidence was not misused. If the evidence was not admissible as similar fact, then the question is whether the jury were adequately warned to ignore it in relation to count 1. The jury direction was not revealed in the judgments in Bounds. Then, in relation to the unbiased determination of the facts, the appellate court should ask whether the similar fact evidence – even if it was admissible – could have, by reason of its content, prejudiced the rational assessment of the other evidence. This point is addressed in Bounds, but again it was a point of difference. Kirby J thought that it could have caused prejudice, simply because of the risk of an averse reaction by any juror to the mere mention of bestiality. The majority, however, considered that the mention of bestiality (the jury were not shown any images) was of peripheral concern and would not have caused illegitimate prejudice. At the heart of this difference of judicial opinion is the extent to which it should be acknowledged that jurors may not approach their task rationally. This was mentioned as recently as the 19th of this month by the House of Lords in R v Coutts (blogged 21 July 2006), where Lord Bingham (with whom the others agreed), citing a High Court of Australia case, Gilbert v R (2000), said at para 20 that the jury room may not be a place of undeviating intellectual and logical rigour. Coutts and Bounds are cases that complement each other: in Coutts the concern was failure to include an offence in the indictment, whereas in Bounds the concern was improper inclusion of a count. Should the court be less sensitive to the risk of jury prejudice in one than in the other?

Fairer than you may want

The right to a fair trial is a right that the accused cannot waive.

This may seem a strange statement: why would the accused ever want to waive the right to a fair trial? Well, trial tactics are complicated things. If charged with one serious offence, the accused may prefer to hope for an outright acquittal on that rather than have the judge tell the jury that if they acquit on the serious charge they may then consider whether to convict on a lesser charge. A conviction on the lesser charge, and the consequence of imprisonment on that, may be something the accused would see as rendering his victory on the more serious charge Pyrrhic.

A fair trial is a trial conducted according to law. This means, as the House of Lords held this week in R v Coutts [2006] UKHL 39 (19 July 2006), that the jury must be fully informed about the alternatives available to it, whether either side want that or not. In Coutts, both sides agreed that the judge should not instruct the jury about the alternative of manslaughter, when the accused faced a solitary charge of murder. The Crown, confident that it would secure a conviction for murder, did not want the jury to instead convict for manslaughter, so, clothing its stance in the guise of a fairness objection, it argued that the accused was entitled to an acquittal if the jury had a doubt about the way the Crown had sought to prove its case for murder. The defence, having argued that the killing was accidental, did not want the risk of a conviction for manslaughter, because the sentence for that would, in the circumstances, be a lengthy term of imprisonment. Following the conviction for murder, the defence appealed, arguing that the judge should have directed the jury about manslaughter. The House of Lords upheld this argument and quashed the conviction, remitting the case so that a retrial could be considered.

Coutts establishes that fairness requires that the jury be fully informed about the law and the alternatives open for consideration in the particular case. Further, failure to inform the jury of the legal position amounts to a substantial miscarriage of justice. The appellate court does not enter into an inquiry about whether the jury only convicted the accused of the serious charge because it did not want him to walk free. To do that would be to engage in speculation. While a foundation of the system of trial by jury is the assumption that juries apply the directions on the law that judges give them (Lord Rodger, para 87), it is proper to recognise that the jury may be affected in its approach by the choices that it perceives as being available to it (an observation by Callinan J in the High Court of Australia case Gilbert v The Queen (2000) 201 CLR 414 para 101, quoted by Lord Bingham at para 20, Lord Hutton at 54, Lord Rodger at 88 and Lord Mance at 99).

Accordingly, the public interest in the administration of justice is best served if the judge leaves any obvious alternative offence to the jury irrespective of the wishes of counsel. Lord Bingham, with whom the other law lords agreed, put the requirement as follows (para 23):

"The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support. I would not extend the rule to summary proceedings since, for all their potential importance to individuals, they do not engage the public interest to the same degree. I would also confine the rule to alternative verdicts obviously raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial. Application of this rule may in some cases benefit the defendant, protecting him against an excessive conviction. In other cases it may benefit the public, by providing for the conviction of a lawbreaker who deserves punishment. A defendant may, quite reasonably from his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency.

"24. It is of course fundamental that the duty to leave lesser verdicts to the jury should not be exercised so as to infringe a defendant's right to a fair trial. This might be so if it were shown that decisions were made at trial which would not have been made had the possibility of such a verdict been envisaged. But no such infringement has ordinarily been found where there is evidence of provocation not relied on by the defence, nor will it ordinarily be unfair to leave an alternative where a defendant who, resisting conviction of a more serious offence, succeeds in throwing doubt on an ingredient of that offence and is as a result convicted of a lesser offence lacking that ingredient. There may be unfairness if the jury first learn of the alternative from the judge's summing-up, when counsel have not had the opportunity to address it in their closing speeches. But that risk is met if the proposed direction is indicated to counsel at some stage before they make their closing speeches. They can continue to discount the alternative in their closing speeches, but they can address the jury with knowledge of what the judge will direct. Had this course been followed in the present case there would have been no unfairness to the appellant, and while taking a contrary view the Court of Appeal did not identify the unfairness which it held would arise. It is not unfair to deprive a defendant, timeously alerted to the possibility, of what may be an adventitious acquittal."