Inferences

An area of the law of evidence that has long been a subject of discussion and confusion is the drawing of inferences. In R v Hillier [2007] HCA 13 (22 March 2007) the High Court of Australia corrected an error of reasoning by an appellate court on this topic.

The accused had been convicted of murdering his estranged wife, his motive being alleged to be to obtain custody of their children. There was only circumstantial evidence of his guilt. The Court of Appeal (ACT) had quashed the conviction, holding ([2005] ACTCA 48 at [105]):

"other aspects of the evidence, such as that relating to the unusual features of the injuries she suffered and the apparent use of the handcuffs … [made] it difficult to reconstruct what actually occurred on the night in question and the evidence suggesting that another person may have been present at the time of her death".

The Court of Appeal found that this made it impossible to conclude, beyond reasonable doubt, that the accused was guilty.

As the High Court pointed out, it is wrong to isolate pieces of evidence and use them to support an inference inconsistent with guilt. Gummow, Hayne and Crennan JJ, jointly, with Gleeson CJ concurring, and Callinan J agreeing in allowing the Crown’s appeal (but who would have ordered a retrial, rather than, as the others did, remit the case to the Court of Appeal for reconsideration), held at para 46:

“The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances [footnote: See, for example, Martin v Osborne (1936) 55 CLR 367 at 375; Plomp v The Queen (1963) 110 CLR 234 at 243 per Dixon CJ.]. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence [footnote: Shepherd v The Queen (1990) 170 CLR 573 at 579 per Dawson J].”

So, because there were circumstances consistent with innocence, the question was whether, in the context of all the evidence in the case there was a reasonable doubt.

This is a slightly different matter from another circumstantial evidence problem that causes much debate: to what standard must circumstantially-proved facts be established before they can be used to support an inference of guilt? In some cases, where the reasoning progresses along a logical path, each step depending on the one before, the answer is clearly that each link in the chain of reasoning must be proved beyond reasonable doubt. But even here, this is not to say that, where more than one item of evidence is needed to constitute proof of the fact relied on for each step, each must be proved beyond reasonable doubt. That is because, where something is proved by circumstantial evidence, the circumstances must be seen in combination, not in isolation. In isolation, they might be doubtful, but the question is whether, in combination, they must be true and, in the case of reasoning in logical steps, each necessary step in the reasoning is established.

It is only the elements of an offence that need to be proved beyond reasonable doubt; other facts need not be.

It is unlikely that there is a difference between the laws of Australia and New Zealand in this regard, although the matter has not always been clear. The High Court of Australia, in the present case at para 48, quoted with approval an earlier decision (the famous “the dingo’s got my baby!” case R v Chamberlain (No 2) (1984) 153 CLR 521 at 535) in which R v Thomas [1972] NZLR 34 at 37-38, 40 was cited. Thomas was a notorious case in New Zealand, the convicted accused ultimately being pardoned. Thomas has also been cited with approval in Canada: R v Morin (1988) 44 CCC (3d) 193.

However, the standard of proof of facts which form the basis for inferences of elements of the offence, may not be universally agreed. The position in Australia was recently summarised by Kirby J, in a case not cited in Hillier: De Gruchy v R (2002) 211 CLR 85 (HCA), at para 47:

“In Australia, but not in England [footnote: Hodge's Case (1838) 2 Lewin 227 [168 ER 1136] per Alderson B; McGreevy v Director of Public Prosecutions [1973] 1 WLR 276; [1973] 1 All ER 503. Samuels, "Circumstantial Evidence", (1986) 150 Justice of the Peace 89] and some other countries, [footnote: As to New Zealand, see R v Hedge [1956] NZLR 511; R v Hart [1986] 2 NZLR 408 at 413; cf Police v Pereira [1977] 1 NZLR 547. As to the position in Canada see R v Cooper [1978] 1 SCR 860 and in the United States see Holland v United States 348 US 121 (1954)] a rather strict approach is taken to the instruction that must be given about circumstantial evidence. The jury must be warned that the primary facts, from which an inference of guilt is to be drawn, must themselves be proved beyond reasonable doubt. The inference of guilt must be the only inference that is reasonably open on all the primary facts which the jury find to be established to the requisite standard of proof. [footnote: Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 599 per Brennan J; cf R v Van Beelen (1973) 4 SASR 353 at 379-380. See also Peacock v The King (1911) 13 CLR 619 at 634; Glass, "The Insufficiency of Evidence to Raise a Case to Answer", (1981) 55 Australian Law Journal 842 at 852-853.”]"

This is not to say that these primary facts must individually prove guilt beyond reasonable doubt.

Interestingly, in Chamberlain (No 2), and in Thomas, the courts were ultimately shown to have been wrong to uphold convictions, because of errors in the evidence upon which inferences of guilt were based. In Chamberlain (No 2) the red splashes in the car were not, it was later discovered, blood; in Thomas the police were later found to have planted evidence in order to connect the accused with the murder. Perhaps, in now being more rigorous in its requirements concerning the factual basis for inferences, Australia has learnt a lesson that New Zealand still has not.

The third way

For an interesting study in how the most senior judges can differ over problems in criminal law, one need go no further than yesterday’s decision by the High Court of Australia in R v Taufahema [2007] HCA 11 (21 March 2007).

Here, a policeman had been shot dead by a man who got out of a car, of which the respondent, in this Crown appeal, was the driver. There were four occupants in this car, all on parole, all carrying guns, and with them in the car were 2 pairs of gloves and a hockey mask. The car had been, briefly – for up to 20 seconds – chased by the officer in a patrol car, until it came to a halt in an accidental collision. That was when the murderer, Mr P, got out with his gun and killed the victim.

The prosecution’s case had been advanced in two ways at trial. Initially, it was alleged that the men in the car had agreed among themselves to use guns to prevent their being apprehended. By the end of the evidence in the trial, the prosecutor, after a lengthy discussion with the judge, decided to put the case to the jury on the basis that the common agreement between the men was simply to assist each other to avoid apprehension. The advantage this gave the prosecution was that it was unnecessary for the jury to decide that the use of a gun was part of this common agreement. The respondent, Mr T, was convicted of murder as a secondary party, and that must have been because the jury was satisfied that he had foreseen the possibility that, in avoiding arrest, one of the others would use a gun.

Mr T appealed against his conviction to the CCA NSW, on the basis that before he could be liable in this way, a common intent to commit a crime would have to be proved, and here, escaping apprehension was not a crime. Since there was no “foundational” crime, the CCA quashed his conviction and entered an acquittal. The Crown applied, in this present case, to the High Court of Australia for leave to appeal this decision, and for an order for a new trial.

The High Court held, by a majority of 4 to 3, that there should be a new trial. The dissenters were, jointly, Gleeson CJ and Callinan J, and in a separate judgment, Kirby J. The majority (Gummow, Hayne, Heydon and Crennan JJ) delivered a joint judgment.

The Crown’s application was to advance the case on the basis that the men in the car had planned to commit robbery, and this killing was a foreseeable consequence of the pursuit of that common purpose. This way of inviting a conviction had not been offered before in the proceedings.

The main issues were:

•  Should the public interest in the prosecution and conviction of offenders govern the decision?
  
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•  Should the prosecution be bound by its tactical decisions at trial?
  
• 
  
•  Would ordering a new trial amount to giving the prosecution an opportunity to make a new case, contrary to principles of avoiding double jeopardy?
  
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•  Should the prosecution be allowed to raise the new point on appeal, when it hadn’t raised it either at trial or on the appeal in the court below?
  
• 
  
•  Was there sufficient evidence of the newly proposed common purpose to warrant a new trial?
  
• 
  
•  How difficult should it be for an appellate court’s order for an acquittal to be overturned?
  
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•  How much involvement should judges have in the way the prosecution chose to bring its case, especially if the prosecution could be said to have squandered its chances at trial?
  
• 
  
•  Does the jurisdiction of the High Court of Australia include acting as an appellate court or as a court of error? Is the HCA limited to reviewing the exercise of a discretion by the CCA?
  
• 
  
•  Was there a miscarriage of justice for which a more adequate remedy was available than an order for a new trial, or did the fact that this was the murder of a policeman require a decision by a jury rather than an acquittal arising from a deficiency in the law?
  

The case illustrates how important matters of policy can arise from relatively straightforward facts. So many policy issues arose here that any decision could have been justified, which explains the 4 - 3 division between the High Court justices.

The problem with the case at the trial was that the prosecution became conscious of the weakness of the available inference of agreement to use a gun to prevent apprehension, which was the original basis on which it put its case. Instead of accepting almost inevitable defeat, the prosecution changed its stance. It would have been possible to allege, at the outset, liability in the third way - that identified on appeal, involving an allegation of an agreement to commit robbery. Had that been done, the defence would have been fully informed of its jeopardy before the trial.

Sometimes, however, mistakes just can't be allowed to happen.

Lurking doubts

Recently the Privy Council has reminded us of the appropriate way to approach the question whether there has been a substantial miscarriage of justice in a case, requiring the quashing of a conviction: Dookran v The State (Trinidad and Tobago) [2007] UKPC 15 (7 March 2007).

The facts of the case, which are a tale of sex, love, jealousy, and death, do not need to be traversed here. At issue, in respect of the appeal by one of the two appellants, the daughter, was whether the Court of Appeal had applied the proviso correctly. That Court, having decided that her statement should not have been used in evidence, nevertheless concluded:

“In all the circumstances we hold that the case against this appellant was strong even in the absence of the statement and there was no miscarriage of justice.”

The Privy Council pointed out that this was the wrong test, para 14:

“On the contrary, the Court of Appeal were entitled to apply the proviso and uphold [her] conviction only if they could be satisfied that, without that evidence, a reasonable jury would inevitably have convicted her. The Court of Appeal did not apply that test and so their conclusion that there was no miscarriage of justice and that her appeal should be dismissed was fundamentally flawed.”

Given that the Court below had applied the wrong test, what should the Privy Council do? Obviously, it had to apply the correct test: would a reasonable jury inevitably have convicted? The other evidence against her was from an eyewitness (her sister) to the killing, who had been treated as a suspect when interviewed by the police. At trial, the prosecution case was that her evidence was supported by the appellant’s own statement. Having held that that statement should not have been used in evidence, the eyewitness evidence was unsupported. The Privy Council concluded, para 17:

“It is impossible to affirm that, without that corroboration from the admission statement, any reasonable jury would inevitably have rejected the criticism of [the eyewitness’s] evidence and relied on her evidence alone to convict [this appellant]. In these circumstances there is no room for applying the proviso.”

The other appellant was the mother of the first appellant (and, indeed, of the victim and the eyewitness). The Board summarised the basis of the argument for her as follows, para 28:

“Although reference to lurking doubt has been criticised from time to time as an unwarranted gloss on the language of the statute regulating appeal proceedings in England and Wales, it is really just one way in which an appeal court addresses the fundamental question: Is the conviction safe? In the vast majority of cases the answer to that question will be found simply by considering whether the rules of procedure and the rules of law, including the rules on the admissibility of evidence, have been applied properly. Very exceptionally, however, even where the rules have been properly applied, on the basis of the "general feel of the case as the Court experiences it", there may remain a lurking doubt in the minds of the appellate judges which makes them wonder whether justice has been done: R v Cooper [1969] 1 QB 267, 271, per Widgery LJ.”

In considering whether there was this sort of lurking doubt, the Board mentioned the following points. The mother’s statement was taken in circumstances not unrelated to those in which inadmissible statements had been taken (para 31). The trial judge seemed to have been concerned that too much weight might be given to her statement (para 32). There were factors which could have made here more vulnerable than an average person when interviewed in the police station (para 33). A material witness to the events in the police station was not available to give evidence at the trial (para 34). The factors affecting the credibility of the eyewitness also applied to this appellant (para 35). These matters led the Board to conclude:

“…their Lordships cannot avoid a residual feeling of unease about whether justice has been done in [the mother’s] case and so about the safety of her conviction. …”.

This case is a straightforward illustration of how appellate courts should approach the application of the proviso when complaints are made alleging the wrongful admission of evidence. It is noteworthy that the appellate court should not go about constructing a case against the appellant in place of the flawed case at trial. It should not try to explain away inconvenient circumstances in order to uphold a conviction. It should not, even, apply a high burden on the appellant of showing a reasonable doubt, in the sense of a doubt based on reason, or logic.

Trial by unjust law

Today’s decision by our Supreme Court, Hansen v R [2007] NZSC 7 (20 February 2007), holds that some trials are conducted under law that is an unjustifiable limitation on the presumption of innocence.

The implications of this are considerable. Do such trials contravene the accused’s right to a fair trial, which is an absolute right, so that convictions obtained at them cannot be upheld?

Should Parliament reform the impugned law, s 6(6) of the Misuse of Drugs Act 1975, so that it does not place a legal burden of proof on the accused?

The foundation of Hansen is a finding by all 5 members of the Court that the expression “until the contrary is proved” can not mean “until a reasonable doubt is raised”. It is pointless, now, to dispute that, although in England and Wales that meaning is accepted.

The absence of a meaning that did not involve more than a justifiable limitation on the right to be presumed innocent meant that the Court had to apply the unjustifiable limitation (namely, that the accused had to prove, on the balance of probabilities, lack of intent to supply a drug).

Parliament had been assured by the Attorney-General in 2005, when it revised the offending provision, that there was no unjustified limitation of the accused’s rights. The Supreme Court has now decided that that assurance was wrong (although Blanchard J dissented on this point).

Justice McGrath put the position in this way:

“[254] Articulating that reasoning serves the important function of bringing to theattention of the executive branch of government that the court is of the view thatthere is a measure on the statute book which infringes protected rights and freedoms,which the court has decided is not a justified limitation. It is then for the other branches of government to consider how to respond to the court’s finding. Whilethey are under no obligation to change the law and remedy the inconsistency, it is areasonable constitutional expectation that there will be a reappraisal of the objectivesof the particular measure, and of the means by which they were implemented in thelegislation, in light of the finding of inconsistency with these fundamental rights andfreedoms concerning which there is general consensus in New Zealand society andthere are international obligations to affirm.”

None of the judges in Hansen considered whether trials where the offending provision applies will necessarily be unfair. One would expect that, in most cases, the provision will have little scope for real effect on the accused’s risk of conviction. It is only in borderline cases, where the accused has possession of a quantity of drug close to that at which he is presumed, by this provision, to have it for supply, that there is a risk that he will be found guilty although the jury was not satisfied beyond reasonable doubt that he had that purpose. He could then, perhaps, argue that the proceedings were biased against him, and that this bias, albeit required by law, was unjustifiable.

It is now unlikely that the prosecution will rely on the statutory presumption, in its present form,
where the amount of drug is close to the presumptive level. It is clear that the matter needs to be addressed by Parliament.

How satisfying was that!

The High Court of Australia has, this week, held that the requirement that a judge be “satisfied” of something (here, the appropriateness of revoking a non-parole period, which, in this case, would mean no possibility of release on a life sentence), does not entail a standard of decision analogous to a standard of proof: Leach v R [2007] HCA 3 (6 February 2007).

I have previously noted here some discussion over whether a standard of decision is applicable to requirements like the court having to be “satisfied”. I use the expression “standard of decision” to acknowledge that the decision is a matter of judgment, based on facts, and that those facts will have been determined to a standard appropriate to their context. Indeed, in Leach, the High Court of Australia distinguished between the factual matters on which the decision had to be based, these having to be proved beyond reasonable doubt, and the judgment on those facts whereby the court, having to be “satisfied” was exercising a judgment not amenable to a standard. See, in particular, para 47 of the joint judgment:

“…. The concept of a standard of proof, like the related concept of onus of proof, is apposite to the resolution of disputed questions of fact in issue in the litigation. Both onus and standard of proof concern the adducing of evidence at trial and the determination of which of the facts in issue are established by that evidence[citing Cross on Evidence, 7th Aust ed (2004) at [7005]; Stone, "Burden of Proof and the Judicial Process: A Commentary on Joseph Constantine Steamship Ltd v Imperial Smelting Corporation Ltd", (1944) 60 Law Quarterly Review 262]. Standard of proof is not a concept that is apposite to the resolution of a contested question of judgment of the kind required by [the relevant section], any more than it is apposite to the resolution of a disputed question of law.”

In contrast, the House of Lords in O v Crown Court at Harrow (blogged 31 July 2006) - not mentioned in Leach - held that in the context considered there, whether release on bail was appropriate, “satisfied” meant more than an exercise of judgment, and connoted a burden or presumption.

There is plenty of scope for discussion of this point, as requirements that a court be “satisfied” of something are common. In the Sentencing Act 2002[NZ], for example, s 24(2)(b) and s 86(2) apply this requirement to determination of facts at sentencing, and to deciding whether an extended non-parole period is appropriate, respectively.

Obviously, decisions in some contexts will be more important than in others, so the requirement that a judge be “satisfied” of a critical matter needs to accommodate that. This does not, however, mean that the standard of satisfaction, if there is a standard, will vary; instead, the weight of the considerations needed to meet the standard could be regarded as the variables. An analogous point was made in relation to “the balance of probabilities” in Sharma v DPP and others (Trinidad and Tobago) (blogged 11 December 2006).

Refusals to attach a standard to the requirement that the judge be “satisfied” are, no doubt, put on the policy basis that finality in litigation is desirable. Unless a lower court has taken into account irrelevant matters, or failed to consider relevant matters, or has been plainly in error, its decision on a discretionary matter should be final. On the other hand, where a decision concerns matters that are the subject of human rights, international trends are towards interpreting “satisfied” as carrying a standard of beyond reasonable doubt.

See also my discussion of proof and risk in relation to another House of Lords decision not cited
in Leach:  re McClean, 19 July 2005.

Appeal verdicts

How should an appellate court decide whether a verdict is safe? It is difficult to find agreement among senior appellate judges on the safety of verdicts, even where they express the relevant legal approach in similar terms. Only last week the Supreme Court of Canada split 5 – 4 on whether a verdict in a lower court was reasonable: R v Beaudry [2007] SCC 5 (31 January 2007).

I have previously mentioned here several cases on this difficulty: Dial v The State (Trinidad and Tobago) 17 February 2005, R v Stevens 25 October 2005, Taylor v R (Jamaica) 14 March 2006. And next month, the Privy Council will hear an appeal, the last from New Zealand, by David Bain, which concerns whether convictions for murders should be upheld in the light of fresh evidence.

In Beaudry the majority emphasised that it is the verdict that is reviewed, not the process that was followed to reach it. An error of reasoning in the lower court (here the trial was by judge alone, so reasons for the verdict were available for inspection on appeal) did not, of itself, mean that the verdict was unsafe; instead, the appellate court had to thoroughly reexamine the evidence, bringing to bear the weight of its judicial experience in deciding whether the verdict was a reasonable one (para 58).

I will, I hope, be forgiven for thinking that that is a very vague formulation of the proper appellate task. Some help might be obtained from a combination of dicta from the cases mentioned above, so that the question for the appellate court is whether a jury might, on a proper approach, have a reasonable doubt about the defendant’s guilt (Dial), bearing in mind that the jury may have different perceptions of the facts from the perceptions entertained by appellate judges (Stevens), and that the jury must rule out all inferences consistent with innocence before it can convict (Taylor).

Reliability and relevance

Concealed within the requirement that evidence, to be admissible, must be relevant, is a threshold of reliability.

It is a fundamental principle that relevant evidence is - subject to exclusionary rules -  admissible, and that evidence that is not relevant is not admissible: see, for example, s 7 of the Evidence Act 2006[NZ]. “Relevant” means having a tendency to prove or disprove anything that is of consequence to the determination of the proceeding. Is any “tendency”, no matter how slight, sufficient to establish relevance? Logically, the tendency of evidence to prove something must include a requirement that it has some reliability. The need for reliability can be seen from the use of that term in the Act.

The reliability requirement is found as an express requirement in the Evidence Act 2006[NZ], as a qualification on the admissibility of particular sorts of evidence. For example, hearsay evidence requires, from the circumstances in which it was obtained, “reasonable assurance that the statement is reliable” (s 18(1)(a)), unreliable statements by defendants in criminal proceedings must be excluded (s 28(2)), previous consistent statements must have been made in circumstances that provide “reasonable assurance” that they are reliable (s 35(3)(a)), and there are reliability rules concerning identification evidence (visual identification: s 45(1) and (2), voice identification: s 46). These references to reliability are consistent with the view that reliability is a fundamental requirement for admissibility.

A concept akin to reliability is probative value, but they are not the same. Evidence cannot have probative value unless it has reliability, and increasing reliability may lend the evidence more probative value, but not necessarily. Although highly reliable, evidence might have relatively slight probative value. Reliability reflects accuracy, whereas probative value is a reflection of the importance of the evidence to the logic of the case.

In the terminology of the Act, probative value is something that a judge must weigh against unfairly prejudicial effect, and this applies generally (s 8). The expert opinion rule in s 25 is governed by this probative value determination, because of its general application, but neither probative value nor reliability are mentioned in s 25. This raises the question: does expert opinion evidence have to be reliable before it can be admissible?

Expert opinion is admissible if (s 25(1)) “the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.” Here, “substantial help” may well be contingent on reliability; this seems to be the only route by which the common law requirements, of general acceptance of the opinion among experts in the field, can come into play in s 25.

Yesterday, the Supreme Court of Canada split 6-3 on what was essentially a difference about whether a threshold of reliability is a fundamental requirement for the admissibility of evidence: R v Trochym [2007] SCC 6 (1 February 2007). Here, the evidence was that of a witness who claimed to have seen a person she said was the accused, leaving the victim’s apartment, some time after the victim was murdered. She gave two versions of exactly when she had seen this: her first version was that the accused had left the day after the murder, but later, under hypnosis, she changed this to the same day as the murder. Was the version she had given under hypnosis sufficiently reliable to be admitted in evidence, so that its weight (probative value) could be assessed by the jury? Or, should the first question be whether her hypnotised version had sufficient probative value, compared to its unfairly prejudicial effect, for the matter of its weight to be left with the jury?

The majority (McLachlin CJ, Binnie, LeBel, Deschamps, and Fish JJ, with Charron J concurring but differing slightly, particularly as to the position on the part of the witness’s evidence that was not the subject of hypnotic inquiry) held that reliability is the fundamental requirement for admissibility as far as “novel scientific evidence” is concerned. Whereas in many areas of scientific inquiry the reliability of expert evidence is established, science develops:

“31. Not all scientific evidence, or evidence that results from the use of a scientific technique, must be screened before being introduced into evidence. In some cases, the science in question is so well established that judges can rely on the fact that the admissibility of evidence based on it has been clearly recognized by the courts in the past. Other cases may not be so clear. Like the legal community, the scientific community continues to challenge and improve upon its existing base of knowledge. As a result, the admissibility of scientific evidence is not frozen in time.

“32. While some forms of scientific evidence become more reliable over time, others may become less so as further studies reveal concerns. Thus, a technique that was once admissible may subsequently be found to be inadmissible. An example of the first situation, where, upon further refinement and study, a scientific technique becomes sufficiently reliable to be used in criminal trials, is DNA matching evidence, which this Court recognized in R. v. Terceira, 1999 CanLII 645 (S.C.C.), [1999] 3 S.C.R. 866. An example of the second situation, where a technique that has been employed for some time comes to be questioned, is so-called “dock”, or in-court, identification evidence. In R. v. Hibbert, 2002 SCC 39 (CanLII), [2002] 2 S.C.R. 445, 2002 SCC 39, at para. 50, Arbour J., writing for the majority, stated that despite its long-standing use, dock identification is almost totally unreliable. Therefore, even if it has received judicial recognition in the past, a technique or science whose underlying assumptions are challenged should not be admitted in evidence without first confirming the validity of those assumptions.

“33. … Even though the use of expert testimony was not in itself at issue in the present case — this appeal concerns the application of a scientific technique to the testimony of a lay witness — the threshold reliability of the technique, and its impact on the testimony, remains crucial to the fairness of the trial.”

The emphasis is on the threshold of reliability and the fairness of the trial. The majority concluded, para 55, and 65-66, that “this technique and its impact on human memory are not understood well enough for post-hypnosis testimony to be sufficiently reliable to be used in a court of law.” That applies to the witness’s evidence on topics that have been the subject of hypnosis. As far as evidence from the witness about matters that have not been mentioned under hypnosis, (as held by the majority except Charron J) the judge determines admissibility by assessing whether the detrimental effects of hypnosis are outweighed by the probative value of the evidence (para 64). Charron J would not require the balancing exercise to automatically apply here (para 87), and she would also allow evidence of topics covered under hypnosis to be given if supported by a pre-hypnosis consistent statement (para 88).

The minority (Bastarache, Abella and Rothstein JJ) would have admitted the post-hypnotic evidence, preferring not to change the rule. They declined to classify this area as novel science, and would have confined the reliability test, in this context, to novel science. They considered that the majority had placed too high a standard for consensus in the expert community. In particular, they held that the majority’s approach, which took judicial notice of cases in the USA in which experts had expressed doubts on the reliability of testimony by witnesses who had been hypnotised, amounted to denying a party in the present case the opportunity to cross-examine those experts.

The Court in Trochym was unanimous on another aspect of the appeal: similar fact evidence had been wrongly admitted. A single incident (knocking on the victim’s door after a fight with her) did not disclose a pattern of behaviour, and was not unique conduct that identified the offender (paras 74-78, 83; 185, 187).

This case illustrates that there are times when the judge cannot simply say that the issue of admissibility depends on whether the probative value of the evidence outweighs its unfairly prejudicial effect. The first requirement is relevance, and relevance depends on whether the evidence has a tendency to prove or disprove a matter in issue, and that in turn depends on a threshold of reliability. Doubts about the probative value of evidence may extend beyond the balancing exercise, to the more fundamental question of relevance.

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.