Statutory interpretation and common law rights

Sometimes, it is worth looking at the way courts approach the interpretation of legislation, even though that legislation may subsequently have been replaced. In Carr v Western Australia [2007] HCA 47 (23 October 2007) the focus was on s 570D of the Criminal Code (WA), which in its material parts provided:

“(2) On the trial of an accused person for a serious offence, evidence of any admission by the accused person shall not be admissible unless —
(a) the evidence is a videotape on which is a recording of the admission; or
(b) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for there not being a recording on videotape of the admission; or
(c) the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence.
…
(4) For the purposes of subsection (2), “reasonable excuse” includes the following — …
(c) The accused person did not consent to the interview being videotaped.”

The interesting point of construction was whether the absence of consent in (4)(c) carried an implication that consent to the videotaping was necessary in all circumstances. Here, the police had, after a formal interview which resulted in an exercise of the right to silence, carried out an apparently casual conversation with the suspect (now, the appellant) in which he, without realising that these were being videotaped, made admissions of guilt.

If consent to videotaping was always necessary, then, for the interview to be admissible under this section, mere recording on videotape would not be sufficient: (2)(a) would be construed as if it read “the evidence is a videotape on which is, with the consent of the person interviewed, a recording of the admission.”

Kirby J pointed out the mischief that would arise if this interpretation were not accepted, para 165:

“…police officers, frustrated by the irksome insistence of the suspect on the legal right to silence and the request for access to a lawyer, would simply lead him or her from the formal interview, conducted in the interview room, into the lockup or a tea room or some other facility monitored by surveillance devices, perhaps a bar or a public park [citing Em v R [2007] HCA 46 at [146]; see blog for 5 October 2007], and there engage in banter, informal conversation and apparently innocent questioning. The psychological dynamic of the "interview", where, by the strictures of law, the power relationship between interviewer and interviewee is to some degree equalised, would be completely changed. The offence to basic principle would not be cured by the mere fact that the conversation was recorded reliably….”

In such circumstances, the interviewee would be denied the equalising protection of legal advice. As Kirby J put it in para 170-171:

“… this was a case of a suspect in police custody who was properly cautioned, formally interviewed and who then insisted on his right to silence and to consult a lawyer before answering questions. Knowing of that insistence, police proceeded to override his rights and privileges. He was a smart alec for whom it is hard to feel much sympathy. But the police were public officials bound to comply with the law. We should uphold the appellant's rights because doing so is an obligation that is precious for everyone. It is cases like this that test this Court. It is no real test to afford the protection of the law to the clearly innocent, the powerful and the acclaimed [citing Em [2007] HCA 46 at [230]- [231]].

“171 The "right to silence" may indeed sometimes evoke "strong but unfocused feelings". It is, without doubt, a "shorthand description" of different rules that apply in the criminal law [the phrases in quotations refer to the reasons in the joint judgment in the present case, at para 36]. But it has not been, at least until now, meaningless and impotent in Australian law. In default of clear and valid legislation authorising a contrary course, this Court should uphold the right to silence in a case such as the present for it is important to the individual's true choice to remain silent in the face of authority and to the proper control of the conduct of the agents of the state.”

What, then, was the obstacle to this interpretation of the section? Kirby J was the sole dissenter. Gleeson CJ delivered a judgment in which he agreed with the reasons in the joint judgment of Gummow, Heydon and Crennan JJ, but he gave his own reasons on the consent point.

Broadly, the problem with Kirby J’s approach is that it treats the so-called right to silence (and the right to legal advice) as if admission of confessions depended on the defendant having chosen not to exercise his right. That would be putting things around the wrong way. The position as developed at common law is that the defendant’s confession will be admissible, subject to a judicial discretion to exclude it if circumstances, such as failure to inform the defendant of his right to remain silent, raised policy concerns sufficient to require such exclusion.

Gleeson CJ began his reasons by pointing out the common law position. Then, he referred to s 570D as creating mandatory exclusion subject to two qualifications (para 8). Since the interview here was recorded, the exclusionary rule did not apply unless the appellant could show implied grounds for exclusion (para 9, 10). There is, he continued, a difference between assuming that consent is necessary, and implying that consent is necessary (para 11). Assumptions stand outside the legislation (and, indeed, Gleeson CJ himself was concerned here, para 11, to explain that he had made such an assumption about this section in another case, Nicholls v R [2005] HCA 1, blogged here on a different point 11 February 2005), whereas implications are within it (para 12). Implication has nothing to work on here, because there is no ambiguity in s 570D that requires resolution (para 15, 17). The rule of exclusion in s 570D(2) is quite narrow, and the appellant’s argument was, in effect, that another narrow rule should be added to it, but there were no grounds for extending it (para 18).

In reality, the grounds of objection here, that the appellant had not been aware that what he said was being recorded, were matters relevant to discretionary exclusion at common law. However, for technical reasons, this appeal had not been brought on those grounds: no reliance had been placed in the trial court on any argument alleging lack of voluntariness or police impropriety, and by the time the case reached the High Court of Australia the only remaining argument concerned the construction of s 570D (see para 33, 98-99).

The joint judgment dealt only briefly with the consent point. The reasoning was that s 540D(4) refers to absence of consent as an excuse for not recording the interview, and it does not follow that consent is required for recording (para 68-70).

As Gleeson CJ noted, para 5-7, where a statutory provision balances pursuit of its purpose against other interests, it will be necessary to decide how far the legislation goes in pursuit of its purpose. It seems that his view is that the purpose of s 540D was very narrow, giving only limited protection against police misconduct (para 18). No balancing against other interests was involved. While (2)(c) refers to exceptional circumstances and the interests of justice, and the list of reasonable excuses in (4) is not exhaustive, those, of course, refer to situations where the interview was not videorecorded, and here it was. As the joint judgment pointed out, para 40, this remedial legislation should not be read as doing more work than was disclosed by its subject, scope and purpose.

Causing trouble

Fundamental concepts in criminal law came under scrutiny in R v Kennedy [2007] UKHL 38 (17 October 2007).

These were causation and secondary liability, in the context of the requirement for an unlawful act in manslaughter where gross negligence is not alleged.

The facts of this case are set out in para 3:

“The agreed facts are clear and simple. The appellant lived in a hostel in which Marco Bosque and Andrew Cody, who shared a room, also lived. On 10 September 1996 the appellant visited the room which Bosque and Cody shared. Bosque was drinking with Cody. According to Cody, Bosque told the appellant that he wanted "a bit to make him sleep" and the appellant told Bosque to take care that he did not go to sleep permanently. The appellant prepared a dose of heroin for the deceased and gave him a syringe ready for injection. The deceased then injected himself and returned the empty syringe to the appellant, who left the room. Bosque then appeared to stop breathing. An ambulance was called and he was taken to hospital, where he was pronounced dead. The cause of death was inhalation of gastric contents while acutely intoxicated by opiates and alcohol.”

Strange as it may seem, the act of using heroin is not an unlawful Act in the UK: use of this drug is not proscribed by the Misuse of Drugs Act 1971[UK], and to find an act by the accused that could be the necessary unlawful act required before liability for manslaughter could arise, it was necessary to consider s 23 of the Offences Against the Person Act 1861[UK]:

"Maliciously administering poison, etc, so as to endanger life or inflict grievous bodily harm

Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of [an offence] and being convicted thereof shall be liable . . . to [imprisonment] for any term not exceeding ten years . . .".

The Crown accepted that it could not rely on the causal aspects of this liability (causing to be administered; causing to be taken) and the House of Lords took the opportunity to explain why: para 14-15. Essentially, because the victim had made a voluntary and informed decision to use the drug, the accused’s acts had no causal connection with that use or the subsequent death of the victim. The victim’s exercise of choice was a novus actus interveniens. For this reason, the accused’s unlawful act of supplying the drug was irrelevant.

The only alternative to the accused being liable as a principal (not possible here because of the lack of causal connection) was liability as a secondary party. That, however, was not possible, because the victim had done nothing unlawful for the accused to be a party to.

Could the accused’s acts be regarded as administering the drug? That would be an unlawful act (s 23 of the Offences Against the Person Act 1861, above). This was addressed in para 19:

“The sole argument open to the crown was, therefore, that the appellant administered the injection to the deceased. It was argued that the term "administer" should not be narrowly interpreted. Reliance was placed on the steps taken by the appellant to facilitate the injection and on the trial judge's direction to the jury that they had to be satisfied that the appellant handed the syringe to the deceased "for immediate injection". But section 23 draws a very clear contrast between a noxious thing administered to another person and a noxious thing taken by another person. It cannot ordinarily be both. In this case the heroin is described as "freely and voluntarily self-administered" by the deceased. This, on the facts, is an inevitable finding. The appellant supplied the heroin and prepared the syringe. But the deceased had a choice whether to inject himself or not. He chose to do so, knowing what he was doing. It was his act.”

Obviously, there could easily be slightly different facts which would amount to administering by the accused, and indeed the Court of Appeal in this case had erroneously thought that they existed here, by considering that it was open to the jury to conclude that the events of giving the syringe and its use amounted to one transaction.

The House of Lords overruled two Court of Appeal decisions: R v Finlay [2003] EWCA Crim 3868 (8 December 2003), and R v Rogers [2003] EWCA Crim 945, [2003] 1 WLR 1374, because those cases overlooked the novus actus point. Rogers came close to administering, but there was still a distinction; the accused had held a belt tight around the victim’s arm while the victim injected himself with the drug: the question was still whether the act of using the drug was a free and voluntary act by the victim; since it was, it broke the chain of causation between what the accused did and the victim’s death.

The application of this case in other jurisdictions must be considered with care. Usually, it is an offence to use a controlled drug. The accused would, on the same facts, in that context be guilty of assisting an offence, and that assistance would be an unlawful act sufficient for that part of the actus reus of manslaughter.

The case does, however, contain a reminder of the relevance of causation to liability as a principal offender, and of its irrelevance to liability as a secondary party: paras 14, 17:

“14. The criminal law generally assumes the existence of free will. The law recognises certain exceptions, in the case of the young, those who for any reason are not fully responsible for their actions, and the vulnerable, and it acknowledges situations of duress and necessity, as also of deception and mistake. But, generally speaking, informed adults of sound mind are treated as autonomous beings able to make their own decisions how they will act, and none of the exceptions is relied on as possibly applicable in this case. Thus D is not to be treated as causing V to act in a certain way if V makes a voluntary and informed decision to act in that way rather than another. There are many classic statements to this effect. In his article "Finis for Novus Actus?" (1989) 48(3) CLJ 391, 392, Professor Glanville Williams wrote:


"I may suggest reasons to you for doing something; I may urge you to do it, tell you it will pay you to do it, tell you it is your duty to do it. My efforts may perhaps make it very much more likely that you will do it. But they do not cause you to do it, in the sense in which one causes a kettle of water to boil by putting it on the stove. Your volitional act is regarded (within the doctrine of responsibility) as setting a new 'chain of causation' going, irrespective of what has happened before."

In chapter XII of Causation in the Law, 2nd ed (1985), p 326, Hart and Honoré wrote:

"The free, deliberate, and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility."

This statement was cited by the House with approval in R v Latif [1996] 1 WLR 104, 115. The principle is fundamental and not controversial.”

“17. In his article already cited Professor Glanville Williams pointed out (at p 398) that the doctrine of secondary liability was developed precisely because an informed voluntary choice was ordinarily regarded as a novus actus interveniens breaking the chain of causation:

"Principals cause, accomplices encourage (or otherwise influence) or help. If the instigator were regarded as causing the result he would be a principal, and the conceptual division between principals (or, as I prefer to call them, perpetrators) and accessories would vanish. Indeed, it was because the instigator was not regarded as causing the crime that the notion of accessories had to be developed. This is the irrefragable argument for recognising the novus actus principle as one of the bases of our criminal law. The final act is done by the perpetrator, and his guilt pushes the accessories, conceptually speaking, into the background. Accessorial liability is, in the traditional theory, 'derivative' from that of the perpetrator.""

On the Road (to extinction?)

It is one thing to approve of the existence of trial by jury, but another to want to serve on a jury one’s self. Reluctance to serve on juries has caused problems in Britain, to such an extent that recent reforms have increased the pool of potential jurors by around 4 million. This has been accomplished by adding to those eligible to serve on juries people such as constables and lawyers, including prosecuting lawyers. The New York Times observed, as long ago as 23 November 1854, that “Trial by jury is in process of gradual extinction in England.” Do the state’s efforts to preserve jury trials, by widening the range of people eligible to serve, threaten the right to a fair trial?

This was the question underlying three appeals heard jointly in R v Abdroikof [2007] UKHL 37 (17 October 2007). In two of these unrelated cases, a police officer had been on the jury, and in the third one of the jurors had been a lawyer who worked as a prosecutor.

It was unanimously held that in the first appeal there had been no appearance of bias, because the case did not involve a contest of credibility and in the circumstances it would have been hard to argue that any unconscious bias on the part of the juror who was a police officer would have disadvantaged the accused.

However, the House of Lords split 3-2 on the other two appeals. The majority (Lord Bingham para 26-27, Baroness Hale para 45, and Lord Mance para 82) held that in both these there was the appearance of bias. In one, a police officer was a juror and the case involved a credibility contest between the accused and a police witness who worked in the same area as that juror (but they did not know each other; Lord Mance at para 83 thought that the conflict in evidence would not necessarily create the appearance of bias, but the working area aspect was important particularly as it was a breach of a police instruction); it was likely that instinctively the juror could have preferred the evidence of the police witness simply because the witness was a police officer. In the other case, where a prosecutor was on the jury, there was apparent bias: a reasonable person acquainted with all the circumstances would have concerns about the impartiality of the proceedings.

The minority, Lord Rodger and Lord Carswell, would have dismissed all three appeals. Purporting to apply the test of what the fair-minded and informed observer would think (while, I suggest, actually applying a test of what the fair-minded and informed Law Lord might think), Lord Rodger reasoned at para 32 that since there are lots of reasons a juror might be biased, for example men on rape juries might be sympathetic to the accused, a juror who had been sexually abused might sympathise with the complainant in a sexual abuse trial, a gay juror might be sympathetic to claims of assault by a gay man against a homophobic accused, or a homophobic juror might not be sympathetic to a gay complainant, an undergraduate juror might be sympathetic to another undergraduate of the same university, a black juror might sympathise with a black witness, a juror involved with drugs might sympathise with a person accused of drug offending; these are all risks that have always existed and which are regarded as risks that can be managed, so Parliament’s addition to the categories of eligible jurors is merely a recognition that similar risks can be managed. Furthermore, reasoned Lord Rodger, one way of managing these normal risks is through the number of jurors who must collectively (or by a permitted majority) reach a verdict: the informed observer would realise that “the mere fact that there is a real possibility that a juror may be biased does not mean that there is a real possibility that the jury will be incapable of returning an impartial verdict” (para 33). He continued, para 34:

“The reality therefore is that the jury system operates, not because those who serve are free from prejudice, but despite the fact that many of them will harbour prejudices of various kinds when they enter the jury box. In the United States a voir dire is held to try to select jurors who are free from relevant prejudices. In Britain, with its very different history, such a procedure has not been adopted - indeed it has been specifically rejected. If experience had shown that British juries, made up of people drawn at random from all kinds of backgrounds, could not act impartially, the system would long since have lost all credibility. But Parliament must consider that it works, since it has not abolished it or introduced a new procedure for selecting jurors, even though it has had opportunities to do so. Juries also seem to enjoy the confidence of the general public. The fair-minded and informed observer will be well aware of this.”

One must wonder, however, whether such an observer of the system would ever find apparent bias in a jury. The argument extends to the conclusion that all British people are capable of being members of juries that appear to act impartially.

The appearance of impartiality was, of course, the point of difference between the Law Lords. Lord Bingham, at para 14, cited the famous dictum of Lord Hewart CJ in R v Sussex Justices, Ex p McCarthy [1924] 1 KB 256, 259:

“…it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

In the present case it was not suggested that the relevant legislation contravened the Human Rights Act 1998[UK], so it was necessary to avoid saying that there would be apparent bias whenever a police officer or a prosecuting lawyer was a member of a jury. This required analysis of the particular circumstances of each appeal. Lord Bingham suggested that Parliament intended what had not been done here: the parties should have been alerted to the juror’s occupation before the trial began to provide an opportunity for judicial scrutiny before jury selection: para 24 (Baroness Hale agreed, para 52, but Lord Rodger did not, para 43). The circumstances were such that, in relation to the appeals that were allowed, Lord Bingham accepted

“…the central thrust of the case made by Mr Richard Carey-Hughes QC for the appellants: that these cases do not involve the ordinary prejudices and predilections to which we are all prone but the possibility of bias (possibly unconscious) which, as he submits, inevitably flows from the presence on a jury of persons professionally committed to one side only of an adversarial trial process, not merely (as the Court of Appeal put it) "involved in some capacity or other in the administration of justice”. … [the] expectation that each doubtful case would be resolved by the judge on a case by case basis is not, he pointed out, met if neither the judge nor counsel know of the identity of a police officer or the juror, as appears to be the present practice.”

The split between the judges here was resolved by Lord Mance, who had read the opinions of his colleagues. He observed, para 81:

“The differences of view in the present case illustrate the difficulties of attributing to the fair-minded and informed observer the appropriate balance between on the one hand complacency and naivety and on the other cynicism and suspicion.”

Without giving reasons, he expressed agreement with the opinions of Lord Bingham and Baroness Hale. This leaves us with the impression that the two appeals on which there was disagreement could easily have been decided differently. Perhaps, as British society becomes more accustomed to having police officers and prosecutors on juries, a future but similar appeal will be decided differently. Will there be a “gradual extinction” (to borrow the New York Times’s phrase) of sensitivity to the appearance of bias?

On being saved from one's own stupidity

What does equality of all people under the law mean? Clearly, it means no-one is exempt from obedience to the law; but, does it also mean that the law will try to assist the disadvantaged? For example, if a person, through ignorance or stupidity, thought that the police could not use in court anything he said to them if he did not agree to its being recorded, should the court refuse to allow the police to exploit this misconception by adducing a confession made under that belief?

This was the point at issue in Em v R [2007] HCA 46 (4 October 2007). It arose because s 90 of the uniform Evidence Act 1995 (C’th) provides:

“Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:

(a) the evidence is adduced by the prosecution; and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.”

This discretion exists alongside a number of others, and this statutory context is important in interpreting s 90. The context is alluded to in the following extract from the judgment of Gleeson CJ and Heydon J, para 41-42:

“The position of the appellant in summary. In relation to the first part of the [challenged confession], the appellant has thus run, failed in and later abandoned some allegations; failed to advance others; and, to some degree, made express concessions. The resulting position is as follows. There had been compliance with s 281 of the Criminal Procedure Act, the statutory provision directed to the question of the form in which the results of official questioning may be tendered in evidence. There had been no violent, oppressive, inhuman or degrading conduct employed or threatened towards anyone, and hence there had been compliance with s 84 [of the Evidence Act], the provision particularly directed to interrogation methods. The circumstances were such as to make it unlikely that the truth of the admission was adversely affected, and hence there had been compliance with s 85, the provision particularly directed to unreliable confessions. The police had not acted improperly or in contravention of any Australian law (cf s 138), and in particular they had not acted improperly in failing to caution the appellant because s 139(1)(c) did not apply; hence there had been compliance with s 138, the provision particularly directed to the rejection of illegally or improperly obtained evidence. The probative value of the evidence was not outweighed by the danger of unfair prejudice (cf s 137), and was not substantially outweighed by the danger that the evidence might be unfairly prejudicial, misleading or confusing, or cause or result in undue waste of time (cf s 135). There had been no breach of the Police Commissioner's Code.

42. Of course it is possible for accused persons to invoke s 90 successfully even if they fail to invoke, or successfully to invoke, any other ground of exclusion. The question is whether in the particular factual circumstances of this case the appellant has done so.”

Given, then, that the evidence passed through these “gates” (a metaphor used in the judgment, para 27), what was left for s 90 to work on? In the last blog (3 September 2007) I suggested that at common law Australian jurisprudence had developed too many discretions; here, the statutory scheme reflects this super-abundance.

The origins of s 90 are in R v Lee [1950] HCA 25; (1950) 82 CLR 133, as the judgments in the present case note. In Lee, Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ said (in a passage quoted in para 54 of the judgment of Gleeson CJ and Heydon J):

“No question of discretion can arise unless the statement in question is a voluntary statement in the common law sense. If it is non-voluntary it is ... legally inadmissible. If it is voluntary, circumstances may be proved which call for an exercise of discretion. The only circumstance which has been suggested as calling for an exercise of the discretion is the use of 'improper' or 'unfair' methods by police officers in interrogating suspected persons or persons in custody. It was with such cases in mind that Latham CJ, in McDermott v The King[[1948] HCA 23; (1948) 76 CLR 501 at 506-507], said that the trial judge had 'a discretion to reject a confession or other incriminating statement made by the accused if, though the statement could not be held to be inadmissible as evidence, in all the circumstances it would be unfair to use it in evidence against him.' In the same case Dixon J[[1948] HCA 23; (1948) 76 CLR 501 at 513] said: 'In referring the decision of the question whether a confessional statement should be rejected to the discretion of the judge, all that seems to be intended is that he should form a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused.' In our opinion the rule is fully and adequately stated in those two passages. What is impropriety in police methods and what would be unfairness in admitting in evidence against an accused person a statement obtained by improper methods must depend upon the circumstances of each particular case, and no attempt should be made to define and thereby to limit the extent or the application of these conceptions."

In Em the appellant submitted that, whereas impropriety under s 138 gives rise to determination of admissibility by a balancing exercise, the same impropriety can be considered under s 90, where no balancing exercise is used. Gleeson CJ and Heydon J did not need to decide this point, because they held that in any event, here there was no unfairness. They pointed out that the application of s 90 is highly fact-specific but general: the appellant’s misconceptions about whether the police could use his statement against him could be considered under this section.

They dismissed the appellant’s arguments (para 62-79), and included a comment at para 77 that specifically drew Kirby J’s dissent:

“77. Counsel for the appellant submitted that it was unfair to permit the reception of evidence obtained from the appellant where the appellant was operating under a disability - a significant mistake of which the detectives were aware. The difficulty is that every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute, and a mistake of the kind the appellant was operating under was simply a species of ignorance or stupidity.”

Gummow and Hayne JJ jointly held that the scope of s 90 was such that (para 107):

“…the focus of s 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as "fair" or "unfair".”


They added, para 109:

“…although the discretion given by s 90 is generally similar to the common law discretion considered in Lee, it is a discretion that will fall to be considered only after applying the other, more specific, provisions of the Act referred to at the start of these reasons. The questions with which those other sections deal (most notably questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities) are not to be dealt with under s 90. The consequence is that the discretion given by s 90 will be engaged only as a final or "safety net" provision.”

They rejected the submission that the police had used unfair trickery, and held that there had been no police impropriety. There was thus no unfairness to come within s 90.

The majority judges thus held that there was no unfairness, and nothing on which the discretion in s 90 could operate. Kirby J, however, dissented. He held that the unfairness here arose from a breach of the defendant’s right to silence. He noted that the meaning of “fair” depends on its context (para 177-179). Interpreting s 90, he concluded (at 195):

“… the meaning of s 90: The unfairness provision in s 90 of the Act was clearly intended to confer a "power or discretion" on a court in criminal proceedings to reject prosecution evidence that was at least as broad as that provided by the previous common law. It may even be that s 90 casts a wider net [cf Swaffield [1998] HCA 1; (1998) 192 CLR 159 at 193 [67], 211 [131]]. For the purpose of deciding this appeal, it is unnecessary to resolve that question. Whilst the several provisions of the Act governing the exclusion of evidence may overlap in particular circumstances, each provision, when invoked, should be applied according to its own terms.”

He pointed out that the Court’s earlier decision in Swaffield arose from facts not dissimilar to those of the present case (para 194):

“Swaffield, like this case, involved the secret recording of a conversation by an undercover police officer who, in disregard of the relevant Judges' Rules in Queensland, did not administer any caution at all to the suspect. The entire Court in that appeal concluded that the accused's admissions had rightly been rejected by the intermediate court. The joint reasons decided that this was so because the police conduct had impugned the suspect's freedom to choose whether to speak to the police or not. My own reasons represented a variation of the same principle. Consistency with the Court's approach in Swaffield requires that principle also to be applied in this appeal.”

However, in the present case the defendant knew he was speaking to the police. Here, Kirby J found 5 indicia of unfairness (paras 208-231). In particular, he dissented from the suggestion in para 77 above that the police were entitled to take advantage of the defendant’s ignorance or stupidity:

“288. … This approach implies that the educated and the clever enjoy a special position under the law which the ignorant and stupid do not. I could never agree with such a view.”

And he added (230):

“However, the law, including the Act, exists to protect all defendants in criminal proceedings against relevant unfairness, not just the educated and the clever. The law is not silent for vulnerable people who are "ignorant" about their rights and who are regarded as "stupid". This point was made by this Court in 1950 in a powerful passage in Lee[[1950] HCA 25; (1950) 82 CLR 133 at 159]:

"It is, of course, of the most vital importance that detectives should be scrupulously careful and fair. The uneducated - perhaps semi-illiterate - man who has a 'record' and is suspected of some offence may be practically helpless in the hands of an over-zealous police officer. The latter may be honest and sincere, but his position of superiority is so great and so over-powering that a 'statement' may be 'taken' which seems very damning but which is really very unreliable. The case against an accused person in such a case sometimes depends entirely on the 'statement' made to the police. In such a case it may well be that his statement, if admitted, would prejudice him very unfairly. Such persons stand often in grave need of that protection which only an extremely vigilant court can give them. They provide the real justification for the Judges' Rules in England and the Chief Commissioner's Standing Orders in Victoria, and they provide ... a justification for the existence of an ultimate discretion as to the admission of confessional evidence." 

As far as I am concerned, nothing has changed in this respect since 1950. The expansion of covert police operations and techniques only heightens the continuing force of what the Court then said [Tofilau [2007] HCA 39 at [203]].”

It is, however, difficult to see why, if the police acted improperly in not correcting the defendant’s misapprehension, the admissibility of the confession did not fall entirely within s 138. The appellant, of course, didn’t want to rely on that section, because of the balancing exercise which would probably have favoured admission of the confession on this charge of murder.

Although this case does not do much to elucidate the role of s 90 in the context of the other discretions in the Act, one must accept that the Court’s role is to give it meaning, rather than to show that it is redundant. There might be cases where evidence is obtained properly but its use in court against the defendant would be unfair in a sense not covered by the discretion to exclude evidence the probative value of which is outweighed by its unfairly prejudicial effect, and also not covered by the common law duty to ensure the accused receives a fair trial (in the sense of a trial where the law is correctly applied to facts determined without bias), but we await an example.

Three for two, and two for three

The common law may become overwrought by distinctions without a difference. On reading Tofilau v R [2007] HCA 39 (30 August 2007), one might wonder whether this has happened in respect of the discretionary exclusion of evidence in Australia.

In Australian common law there are three so-called “discretions” the exercise of which may lead to the exclusion of evidence that would otherwise be admissible. These are summarised at paras 245 to 248 of the joint judgment of Callinan, Heydon and Crennan JJ (I have put the footnotes in square brackets):

“245 In order to appreciate the significance of the appellants' arguments, it is desirable to place them in the context of the law relating to the admissibility of confessions as a whole. An admission by an accused person "must be voluntary in order to be admissible"[ R v Lee [1950] HCA 25; (1950) 82 CLR 133 at 144 per Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ]. It is common to divide involuntary statements into two categories. One concerns the "inducement rule": an admission by an accused person "is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed"[R v Lee [1950] HCA 25; (1950) 82 CLR 133 at 144 per Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ]. The other category concerns those caught by the "basal involuntariness" rule …. But even if an admission is voluntary, it may be excluded on "discretionary" grounds. In R v Swaffield [[1998] HCA 1; (1998) 192 CLR 159 at 189 [52]] Toohey, Gaudron and Gummow JJ grouped these "discretionary" grounds under three heads.

“246 The first in time to emerge was that which was stated in the cases summarised by Lord Sumner delivering the advice of their Lordships in Ibrahim v The King [[1914] AC 599 at 611-614] about impropriety in police questioning. The correctness of excluding evidence on this ground in Victoria was left open in Cornelius v The King [[1936] HCA 25; (1936) 55 CLR 235 at 247-248 per Dixon, Evatt and McTiernan JJ], but was approved for New South Wales by Dixon J in McDermott v The King [[1948] HCA 23; (1948) 76 CLR 501 at 513]. Dixon J said of it:
"there has arisen almost in our own time a practice in England of excluding confessional statements made to officers of police if it is considered upon a review of all the circumstances that they have been obtained in an improper manner".

In R v Lee [[1950] HCA 25; (1950) 82 CLR 133 at 149-151] Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ declined to interfere with the Victorian Full Court's recognition of the discretion in that State. The application of this head was given fresh life from 1982, for in Cleland v The Queen [[1982] HCA 67; (1982) 151 CLR 1] the discretion to exclude illegally or improperly obtained real evidence enunciated in Bunning v Cross [[1978] HCA 22; (1978) 141 CLR 54 at 75] was applied to confessions. It has since been common to refer to this as a "policy" discretion.

“247 The second "discretionary" head to emerge arose where it could be said of a voluntary confession that "in all the circumstances it would be unfair to use it in evidence against" the accused. The words are those of Latham CJ in McDermott v The King [[1948] HCA 23; (1948) 76 CLR 501 at 506-507] summarising R v Jeffries [(1946) 47 SR (NSW) 284], but they were approved by Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ in R v Lee [[1950] HCA 25; (1950) 82 CLR 133 at 151]. This is commonly called a "fairness" discretion.

“248 The third "discretionary" head to emerge was the application to confessions of the "discretion" to exclude evidence the prejudicial impact of which is greater than its probative value, which had begun to be recognised in R v Christie [[1914] AC 545 at 560 per Lord Moulton, 564-565 per Lord Reading (Lord Dunedin concurring)] and continued to develop in various fields of the law of evidence throughout the 20th century. The application of that principle to confessions, but not its description as a "discretion", was accepted as legitimate by Toohey, Gaudron and Gummow JJ in R v Swaffield [[1998] HCA 1; (1998) 192 CLR 159 at 191-193 [61]- [65]…].”

Any difficulty will concern the distinction between the first two discretions. It should be acknowledged that a distinction is discernable, at least in respect of what gives rise to the exercise of each. The first, the “policy” discretion, applies where the public interest in enforcement of the law is outweighed by unfairness to the defendant in the manner in which the evidence was obtained (per Barwick CJ in Bunning v Cross). Here, fairness means society’s right to insist that those who enforce the law themselves respect it (ibid, per Stephen and Aickin JJ). The second, the “fairness” discretion, applies where improper methods in obtaining evidence mean that it would be unfair to admit it; examples are where the defendant was not mentally alert when questioned, or where he fails to understand and appreciate the effect of questions and answers (examples from R v Jeffries, referred to in R v Lee). Those examples of the second discretion might suggest that the underlying concern here is the reliability of the evidence, but that would be inaccurate. The common law resists allowing a rule of exclusion of evidence for unreliability, insisting that the reliability of the evidence is a matter for the fact-finder. This was emphasised in Tofilau in footnote 255, as follows:

“In [Swaffield] at 194 [69] it was further suggested that, subject to a qualification, admissibility at common law turns ‘first on the question of voluntariness, next on exclusion based on considerations of reliability and finally on an overall discretion which [takes] account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards’. Whether or not this is so was not crucial to the outcome in R v Swaffield, was not argued in the present appeals, and is not crucial to their outcome. The correctness of the suggestion thus need not be decided in these appeals (cf reasons of Kirby J at [127]). Subject to that, it is desirable to say the following about the fact that Tofilau appeared to submit to Osborn J that confessions can be excluded merely because they are unreliable, as did Marks and Clarke [other appellants in the present case]. The submissions were rejected on the facts (R v Tofilau [2003] VSC 188; (2003) 13 VR 1 at 17 [57]- [58]; R v Marks [2004] VSC 476 at [83]- [92]; R v Clarke [2004] VSC 11 at [54]- [65]), but in any event their correctness in law is highly questionable: a fear of unreliability may underpin the "inducement rule", and unreliability may be a factual circumstance relevant to basal involuntariness and to discretionary exclusion, but the fact that a judge thinks that a confession is unreliable is not in itself a ground of automatic exclusion.”

The real nature of the unfairness with which this second discretion is concerned arises from the inability of the defendant to decide whether to exercise his rights. It will not necessarily be the fault of the police that this occurs: they may, for example, be quite unaware that the suspect is unable to understand what he is told about his right to obtain legal advice and to refrain from answering questions. Where the police are at fault, however, misconduct will be in issue, and this discretion will tend to merge with the first.

Does the decision process differ as between these two discretions? If the grounds giving rise to their exercise merge and the decision process is the same for each, there is little point in distinguishing between them.

The decision process for the first discretion, the public policy discretion, is a weighing exercise: the public interest in enforcement of the law is weighed against the public interest in having officials obey the law, in the circumstances of the particular case; the question would come down to whether exclusion of evidence would be a proportionate response to the misconduct that had occurred. It would seem that the decision process for the second discretion, the fairness discretion, involves asking whether admission of evidence obtained in the face of a failure of rights would bring the administration of justice into disrepute, or would amount to an abuse of process. I have borrowed these phrases from the common law in Canada and New Zealand, but they seem apt for the Australian context. Essentially, then, these two discretions can be combined; the disrepute to the administration of justice criterion has its origins in the prevention of abuse of process. This permits the conclusion that revision of the Australian analysis of the discretions is justified.

There are some indications in Swaffield that a revision of the common law to this effect would be appropriate, but the opportunity to do this was not taken in Tofilau. This point was alluded to in Tofilau at para 399:

“Counsel's submissions in this Court. Counsel for Clarke in this Court submitted that while it was conventional to analyse discretionary exclusion of confessions as involving two "discretions" - to reject a confession the reception of which would be unfair [R v Lee [1950] HCA 25; (1950) 82 CLR 133], and to reject a confession that was illegally or improperly obtained on public policy grounds [Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1] - in truth there was but a single "discretion" [He cited R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 at 202 [91] per Toohey, Gaudron and Gummow JJ]. It is not necessary to resolve this question, since the outcome of the appeal will be the same whatever the answer. He also submitted that in any event what was involved was not a "discretion" but a rule of law, and relied on an analogy with the rule excluding evidence the prejudicial effect of which exceeded its probative value. It is not necessary to resolve that question either, for the same reason, although the appellant's submission is open to question, and quite out of line with past linguistic usage in this field.”

The Swaffield analyses of the discretions are rather complicated, and the Tofilau summary avoids this complexity.

It is useful to compare the Australian common law with the position in New Zealand under the Evidence Act 2006. There are two discretions under the Act: the weighing exercise in relation to improperly obtained evidence, s 30, and the weighing exercise in relation to prejudice and probative value, s 8. The scope of the improperly obtained evidence discretion is such that it covers the same ground as the first two of the Australian discretions. The prejudice and probative value discretion is equivalent to the third Australian discretion.

Tofilau is also about the use of undercover police officers to encourage admissions of crimes, and it contains discussions of matters such as voluntariness, police use of deception, reliability, and the right to silence. Its result follows that of the Supreme Court of Canada case R v Grandinetti [2005] SCC 5 (27 January 2005) which held that where the accused did not think that the people he was talking to were police officers, they were not persons in authority, the state’s coercive power was not involved, and his admissions to them were voluntary; in the particular circumstances of the present appeals the evidence was held to be admissible.

Update: For doubts as to the existence of a residual common law discretion to exclude evidence for unfairness, see Police v Dunstall [2015] HCA 26 (5 August 2015) at [47]-[48]. For discussion of the use of undercover officers as cellmates to obtain admissions from the defendant, see R v Kumar [2015] NZSC 124 (6 August 2015). In New Zealand the "discretions" referred to above are no longer called "discretions", but are recognised to be the application of rules by the exercise of judgment, so an appeal is on a question of law, not against the exercise of a discretion.

“He jests at scars that never felt a wound.”

Romeo’s words, or similar, might have occurred to the prisoners whose claims for compensation for mistreatment in prison were under the scrutiny of the New Zealand Supreme Court in Taunoa v Attorney General [2007] NZSC 70 (31 August 2007). The Court has decided the appropriate amounts of money to be paid by the state to several prisoners for the circumstances in which they had been subjected to breaches of their right to be treated with humanity and respect for their inherent dignity: s 23(5) New Zealand Bill of Rights Act 1990. In relation to one prisoner, the question was how much should be awarded for breach of his right not to be subjected to disproportionately severe treatment: s 9. The central problem was how to assess public law damages. These are discretionary. Thus they are in contrast to tortious damages which are awarded as of right upon proof of the cause of action, and which are compensatory, can be aggravated, and may be exemplary. Public law damages have a symbolic importance that is seen as diminishing their need to be high in magnitude.

Consequently, the amounts awarded were small (“moderate” was the adjective used by Blanchard J at para 265). I have previously noted here cases in other jurisdictions concerning compensation for breach of another right, the right to a fair hearing, where amounts were also small: see entries for 21 February 2005, 6 and 30 March 2005, 13 April 2005. Here, the Supreme Court reduced those of the awards that the Attorney General appealed.

One would never expect much agreement on amounts that the state should pay to its serious criminals who as a result of their difficult conduct in prison are subjected to efforts to control their behaviour, where those efforts go too far and breach basic rights. Here, the Chief Justice would have been the most generous. Blanchard and McGrath JJ agreed on a middle figure, and Tipping and Henry JJ would have awarded lesser amounts. The result was that the majority of the Court agreed that the amounts decided by Blanchard and McGrath JJ were the minimum that should be ordered, and those amounts became the outcome of this aspect of the case.

An appeal subtle but strong

It is unusual for an appellant (the accused at trial) to be able to establish three grounds on appeal, each of which would have individually shown a real risk of a miscarriage of justice to which the proviso could not be applied. This happened in yesterday’s decision by the Supreme Court of New Zealand (one of the few superior courts to be working at this time of year – the northern hemisphere judges are, presumably, sweltering in the August heat of their vacations) in Rajamani v R [2007] NZSC 68 (23 August 2007).

The three grounds were: the judge incorrectly decided to continue the murder trial with only 10 jurors; the judge incorrectly directed the jury on the law of provocation, and the judge incorrectly directed the jury on the use to which hearsay evidence could be put.

10 jurors: what is a discretion?
The 10 jurors point required the Court to distinguish between discretion and assessment of facts. There could be no appeal against the judge’s exercise of a discretion in this matter, because that is prevented by s 374(8) of the Crimes Act 1961. That section permits the continuation of a trial with 10 jurors in limited circumstances, called exceptional circumstances. Whether there were exceptional circumstances was not, as the Court of Appeal had thought, a matter of discretion: rather, it was a matter of fact requiring judicial assessment (para 4). If that fact (exceptional circumstances) is found to exist, then the exercise of discretion comes into play, for the judge has to decide whether it is in the interests of justice to proceed with 10 jurors.

The proposition here is that the interests of justice are determined by the exercise of judicial discretion, whereas the judgment whether circumstances are exceptional is a matter of fact. Subtle, no?

Applied to the facts here, however, the distinction is (faintly) discernable. The exceptionality of the circumstances involved consideration of facts such as the duration of the trial (only 2 weeks here), the number of witnesses (not particularly large here), and the possible unavailability of a Crown witness (whose evidence “may be thought unhelpful” to the defence – para 9) if the trial had to be started again. The evaluation of these facts against the requirement of exceptional circumstances is judicial assessment, not discretion.

If there had been exceptional circumstances (long trial, many witnesses, potential loss of significant evidence if another trial required), then the judge can only order continuation with 10 jurors (in the absence of consent by the parties) if, as a matter of discretion, it is in the interests of justice to proceed. It seems that what this means is that the judge must decide the same matter that would have to be decided on an appeal against conviction: whether proceeding with 10 jurors created a real risk of the loss of an opportunity of a more favourable verdict. This would involve an assessment of the strength of the respective cases, and as such is more of an exercise of discretion than a determination of fact. Again, however, the distinction is subtle, since assessment of the likely verdict is really a judgment of fact.

Provocation
The provocation aspect of the case does not involve the creation of new law, and simply illustrates how errors can arise (three here), and the significance of their combined effect can differ as between the Court of Appeal and the Supreme Court.

Hearsay
The hearsay point is interesting. The Crown adduced hearsay evidence that the victim had told other people that she was afraid of the accused. It was agreed (why, I’m not sure) that this was relevant only on the issue of whether the victim was afraid of the accused. The Crown did not suggest that it was admissible on the issue of the accused’s intent and whether he acted with a degree of pre-meditation that was inconsistent with provocation.

Although not cited in the Supreme Court’s judgment, the position here was like that in R v Baker [1989] 3 NZLR 635, (1989) 4 CRNZ 282 (CA), where hearsay evidence of the victim’s fears of the accused was admissible to disprove the accused’s statement which had been that she had invited him to her place to kill stray cats. In that case, evidence of her hearsay statements was admissible on the issue of whether the accused was lying (ie on the issue of the accused’s state of mind). One would have thought that in Rajamani the hearsay statements would have been admissible on the issue of the accused’s loss of self-control.

It was held that the judge had not merely misdirected the jury on the proper use of the hearsay evidence, but he had directed them to use it wrongly. This was itself a substantial miscarriage of justice.

The Court refrained from commenting on the application of the hearsay provisions of the Evidence Act 2006, which would govern the use of this evidence at the retrial. So will I.

Third anniversary!

To celebrate the third anniversary (next Saturday) of the start of this site, here is a draft paper on the exclusion of improperly obtained evidence under s 30 of the Evidence Act 2006[NZ].

Stare decisis: formalism, pragmatism and habeas corpus

The problem of whether to depart from a recent decision of the same court was the subject of Gibson v USA (The Bahamas) [2007] UKPC 52 (23 July 2007). A 7 judge Board decided, 4 – 3, that it would overrule Cartwright v Superintendent of HM Prison [2004] 1 WLR 902 (PC). Cartwright was itself a split decision.

Gibson concerned an enactment that gave a right of appeal against a refusal of habeas corpus, but did not mention any right of appeal against a grant of habeas corpus. All 7 members of the Board held that the decision not to order extradition and to grant habeas corpus, against which the USA could not appeal, was wrong. Indeed, the Privy Council judges who dissented in the result of this appeal described that decision of the judge of the Supreme Court of the Bahamas (the Court below the Court of Appeal) as “extraordinary pedantry” (para 32). The majority agreed, calling it “an astonishing conclusion”. This phrase repeated that used by the Board in Cartwright, which was an appeal by a co-accused of the present appellant Gibson, concerning the same ruling.

The problem was that, pursuant to Cartwright, the co-accused had been extradited to Florida to face the charge of conspiracy to import cocaine and cannabis, because Cartwright had held that an appeal against the grant of habeas corpus had properly been heard by the Bahamas Court of Appeal. The reasoning of the majority in Cartwright was unanimously held in Gibson to have been wrong. The minority in Gibson would, apparently (para 40), not have gone so far as to call it “very wrong”, but it is plain they accepted that it was wrong, because the majority judgment notes (para 14): “each of the seven members of the Board as presently constituted is of the clear view that the minority opinion of the Board in Cartwright was correct and that the Court of Appeal had had no jurisdiction to hear the USA's appeal in these cases.”

Nevertheless, Gibson was split over whether to follow the earlier decision, even though it was wrong. The minority noted that overturning a previous decision required some special reason, and put its reasons for upholding Cartwright as follows (para 40):

“What special reason exists in this case? The decision in Cartwright is not impeding the proper development of the law. On the contrary, it has been, so to speak, adopted by the legislature of The Bahamas which has amended the 1994 Act to put the matter beyond doubt by giving a right of appeal against a decision to grant habeas corpus as well as to refuse it. It is speculation as to whether other jurisdictions have the same statutory provisions. If there are, and nothing has been done to alter the law since Cartwright, one could infer that the local legislature is satisfied with the decision. Nor has the case led to results which are unjust or contrary to public policy. On the contrary, the decision allowed the correction of a plain miscarriage of justice and supported public policy in allowing The Bahamas to comply with its international obligations. But the majority proposes to perpetuate injustice and a breach of the extradition treaty simply on the grounds that they think that Cartwright was wrong, or, despite the views of three members of the Board, very wrong. In our opinion this would encourage attempts to revisit cases decided by a narrow majority, which are likely to be the most difficult. We therefore do not think that this is a proper case in which to exercise the power to depart from precedent and would dismiss the appeal.”

On the other hand, the majority in Gibson took a formalist approach to jurisdiction (para 27 - 28):

“There can be no getting away from the fact that this appellant is wrongly imprisoned through the misunderstanding or misapplication of the law by the Court of Appeal (and by the Board in Cartwright) with regard to rights of appeal under the Bahamian legislation then in force.

"Of course the view could be taken that the appellant had faced overwhelmingly strong evidence justifying (indeed requiring) his extradition to the USA on the gravest possible charges of drug dealing, that his habeas corpus challenge to committal ought certainly to have failed, and that the erroneous decision in Cartwright has fortuitously enabled the Bahamian Court of Appeal to correct a serious miscarriage of justice. Their Lordships, however, reject that view. The Board's task is to ensure justice according to law. According to law the Court of Appeal had no jurisdiction to entertain the USA's appeal, however meritorious that appeal was. So much is plain. The Board should not now shrink from saying so. The appeal must accordingly be allowed.”

This contrast between the minority’s pragmatism and the majority’s formalism reminds me of an observation by Aharon Barak in “The Judge in a Democracy” (2006), p 159:

“The guiding principle should be this: it is appropriate to deviate from a previous precedent if the new precedent’s contribution to the bridging of the gap between law and society and to the protection of the constitution and its values, after setting off the damage caused by the change, is greater than the contribution of the previous precedent to the realization of those goals.”

While Gibson will remain controversial, it contains useful dicta on habeas corpus and stare decisis. Its quirkiness reveals a reversal of the usual positions taken by formalists and pragmatists: here, the formalist majority overruled the precedent, whereas the pragmatist minority would have followed it. Precedent and stare decisis play a stronger role in the English legal tradition than they do in legal systems based on Roman law (see Thomas, "The Judicial Process" (2005), Chapter 6). As Thomas points out (eg at p 161) precedent preserves the bedrock principles propounded in the law, but wide application of stare decisis can become an "imprisonment of reason" if precedent is allowed to perpetuate "the false presumption that there is an impersonal law." Gibson is, however, a "bedrock" case in that its concern is with the jurisdiction of an appellate court. Jurisdiction is a condition precedent to justice according to law.

Whipping and buggery!

Two points of interest were made in Persad v The State (Trinidad and Tobago) [2007] UKPC 51 (23 July 2007), one being a point of law, the other being a sentencing blunder.

This appeal concerns the exception to the hearsay rule created in R v Hayter (blogged here 7 February 2005). The Hayter exception to the rule against hearsay is that the jury may, when considering the evidence against the accused, take into account a co-accused’s out of court statement, made in the absence of the accused, but only to the extent that it is against the interests of its maker. The point of law decided in Persad is that where the Hayter exception applies, the jury should be directed that parts of the co-defendant’s statement that exculpate the accused must be taken into account.

The sentencing blunder involved the whipping part of a sentence for buggery. The fact that there was no jurisdiction to pass such a sentence had been overlooked in the Court of Appeal, and the sentence had since been carried out. The Privy Council called this most regrettable (para 25).

The appellant’s conviction for buggery was quashed, essentially because the only information inculpating the appellant at trial had been a self-serving out of court statement by a co-accused, and this was inadmissible against the appellant as it did not come within the Hayter exception.

The Privy Council left for consideration in an appropriate case what the position would have been if the co-accused’s hearsay statement had been exculpatory of its maker to the extent that, while accepting liability for one offence it attributed sole responsibility for another (perhaps more serious) offence to the accused. In Hayter this distinction did not arise, as the accuseds where on trial on joint charges.

In New Zealand the Hayter exception operates until 1 August 2007 (next week). Then the Evidence Act 2006 will come into force, and s 27(1) will prevent the prosecution offering evidence of a co-defendant's statement (presumably, a statement made by the co-defendant to a person in authority in the absence of the defendant) against a defendant. This does not, of itself, prevent another co-defendant offering it against the defendant, but a prohibition of such use could be implied in the interests of consistency. The policy underlyings 27(1) seems to be recognition of the inherent unreliability of accusations made by one defendant against another in out of court statements, particularly when made to persons in authority, and the legislature has omitted to acknowledge that in some circumstances (as in Hayter) these statements can have sufficient apparent reliability to be admissible.

Saying and using

A firearm is “used” in the commission of an offence if its presence or immediate availability is revealed: R v Steele [2007] SCC 36 (20 July 2007). There, a gun was mentioned to occupants of a house during the commission of a “break and enter” where some of the four offenders used phrases such as “We have a gun”, “Get the gun”, and “Get the gun out”.

A loaded gun was, shortly afterwards, found in the offenders’ car. Two of the occupants of the house had seen one of the offenders reach for something that might have been a gun. The trial judge found as a fact that one of the offenders had brought the gun into the house (para 40). The only really live issue on this appeal was whether the judge had made that finding to the necessary standard of beyond reasonable doubt. The Supreme Court held that she had, and that therefore it was not necessary to consider whether the offenders could be liable on the alternative basis that the gun, although left in the car during the break and enter, was immediately available to the offenders at the material time.

This latter source of liability, when the firearm is immediately available to the offender, was held to be “use” of the firearm (para 32), following the United States Supreme Court in Bailey v US, 516 US 137 (1995). The Canadian court quoted (para 30) the following passage (p 148) from that case:

“The active-employment understanding of “use” certainly includes brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire a firearm. We note that this reading compels the conclusion that even an offender’s reference to a firearm in his possession could satisfy §924(c)(1). Thus, a reference to a firearm calculated to bring about a change in circumstances of the predicate offense is a “use,” just as the silent but obvious and forceful presence of a gun on a table can be a “use.””

In Steele it was emphasised that the firearm must actually exist and be immediately available, so that “idle” threats of use of a gun (which did not in fact exist) would not be “use” of the firearm (para 35). Nor did the Supreme Court approve of the Court of Appeal’s requirement of “proximate” availability, as that left the degree of proximity vague, and the offence required present use rather than future use (para 37).

In New Zealand it has been held that producing a gun from a bag when confronted by a police officer, so as to make the officer fear for his safety, is “using” the firearm: R v Swain (1992) 8 CRNZ 657. On the basis of Steele, it would also be use of the gun if the offender were to say (threateningly) to the officer that he had a gun in the bag.

Judicially-raised appeal points

Occasionally, the best point in favour of an appellant may only be noticed by the judges of the appellate court. This occurred in Charles v R (Saint Vincent and the Grenadines) [2007] UKPC 47 (16 July 2007). The Board observed (para 17):

“…It is the duty of an appellate court to advert to any such matter which may appear to it to be significant and possibly determinative of an appeal in favour of the accused.”

This had happened in favour of the appellant’s co-accused, whose appeal was allowed by the Court of Appeal; but it was overlooked when the same Court dealt with the appeal by Mr Charles.

The critical point in this case was a misdirection by the trial judge about the use that the jury may make of the statements that each of the two accused had made to the police. The jury had been told, wrongly, that they could use each statement as evidence against the other accused.

This is a long established and simple point, and it has survived statutory reforms of the law of evidence. For example, in New Zealand, the Evidence Act 2006 (to come into force on 1 August 2007) preserves this rule in s 27(1). The reason for the rule is the obvious one that each statement will be unreliable to the extent that it is relevant in relation to the guilt of another accused. At para 8 of Charles, the Board observed of the co-accused “In the statement he fully admitted complicity in the shooting, but tended, as is not unknown in such cases, to throw more of the blame on his accomplice.”

For the proper form of the direction, the Board recommended as follows (para 16):

“In England and Wales the standard models of directions prepared by the Judicial Studies Board and published in its Bench Books are of great assistance to judges, and any similar venture in other common law jurisdictions is likely to be useful.”

A retrial was ordered in this case because there was no discernable reason for differentiating between the accuseds as far as the significance of the misdirection was concerned.

Some observations were made on identification procedures. Here, the witness (a victim who survived) had had a good opportunity to observe the person who she said was Mr Charles, so any deficiencies that had occurred in relation to the jury being warned as to the need for care were not of critical importance in this appeal. At para 12 the Board summarised the way the use of photographs should be treated:

“Their Lordships consider that some care has to be taken when identification from photographs is carried out, although it is not in itself an improper practice. The rules applicable in England and Wales under Code of Practice D, although not binding, form a reliable basis for good practice. Two basic rules are set out in May & Powles, Criminal Evidence, 5th ed (2004), para 14-35:

'(1) The police may show a witness photographs in order to identify a suspect.
'(2) Once a man has been arrested, and there is therefore an opportunity that he can be identified in person, photographs should not be shown to witnesses before an identification parade.'

“As the learned authors point out, when the police are looking for a culprit, the showing of photographs to witnesses may be essential: indeed, it may be the only way in which the culprit can be identified. Once he has been picked out and is available to take part in an identification parade, photographs should not be shown to witnesses. They should instead be asked to attend an identification parade, as should also the witness or witnesses who picked the suspect out from photographs. In relation to the latter, the procedure set out in the headnote to R v Lamb (1980) 71 Cr App R 198 should be followed, viz, the defendant's advisers should be informed of the showing of the photographs and the decision left to them whether to refer to that at trial. If they do so decide, the photographs should not be shown to the jury, and they should be warned of the consequence that the reliability of the identification is likely to be decreased.”

Another topic mentioned in this case is the Mushtaq direction (blogged here 22 April 2005) concerning the need for the jury to be satisfied that a statement was made voluntarily before they can rely on it (para 14):

“The reasoning of the members of the Appellate Committee was not identical on all points, but a majority held that in the light of section 76(2) of PACE a confession which was not made voluntarily could not be admitted in evidence, and a differently constituted majority held that the direction was inconsistent with the requirements of article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. St Vincent and the Grenadines has a statutory provision equivalent to PACE and their Lordships accordingly consider that in appropriate cases a direction should be given along the Mushtaq lines, that the jury should not rely on a confession which they think has or may have been obtained by maltreatment or oppression, even if they conclude that its contents were true.”

This common law power of the jury to reject a statement as a result of their own assessment of its voluntariness, is in parallel with the judge’s duty to exclude the statement from evidence if he is not satisfied beyond reasonable doubt that it was made voluntarily. The jury here is, in effect, reviewing the judge’s decision as to admissibility. The need for the jury to be directed about this has not been addressed in the Evidence Act 2006[NZ], so, apparently, it remains as a common law requirement.

Lawfulness, arbitrariness and road blocks

When the police, in an effort to catch someone who has committed a serious crime, set up a road block and question motorists, are they subjecting the occupants of the cars to arbitrary detention if there is no statutory authorisation for it? This question was considered in R v Clayton [2007] SCC 32 (6 July 2007).

The Supreme Court of Canada unanimously restored the convictions of the two respondents for offences involving firearms. Within minutes of receiving a “911” call concerning apparent armed offending in a car park, police set up a roadblock at its exit. Although the respondents’ car did not match the description given by the caller, it was the first and only car to leave. Clayton, the passenger, was wearing gloves, although the weather was warm. Clayton and the driver, Farmer, were consistent with the description of the offenders that the caller had given, in that they were “black males”. Evasive behaviour by Clayton contributed to the police decision to search the car.

Although the result was unanimous, the Court split in its reasoning. The majority judgment, by Abella J, of herself and McLachlin CJ, Bastarache, Deschamps, Charron and Rothstein JJ reasoned that the detention in this case was lawful at common law so there was no violation of the Charter right against arbitrary detention.

The other judges, Binnie (who delivered their judgment), LeBel and Fish JJ held that, yes, the detention here was lawful at common law, but it was still necessary to consider arbitrariness under the Charter; since there was a breach in that the detention was arbitrary (because everyone was to be stopped), the next question was whether this was a justified limitation (s 1) on the right not to be arbitrarily detained. Application of Charter jurisprudence (R v Oakes [1986] 1 S.C.R. 103) indicated that this limitation was justified.

Both approaches involve balancing exercises. Abella J pointed out (para 21) that there is a consistency between common law powers and Charter values, because under each the state must justify interference with liberty. The common law balancing, pursuant to LeDain J’s dictum in Dedman v. The Queen, 1985 CanLII 41 (S.C.C.), [1985] 2 S.C.R. 2, 35 requires that

“The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference.”

The Court in Clayton unanimously held that under this test the police action here was lawful at common law (Abella J at 32, Binnie J at 94).

At that point, Abella J held that there was therefore no arbitrary detention (para 41). This reflected her initial proposition (para 19) “If the police conduct in detaining and searching Clayton and Farmer amounted to a lawful exercise of their common law powers, there was no violation of their Charter rights.”

Binnie J, however, thought differently. His position (para 101) can be summarised as, some detentions may be lawful because they are arbitrary but justified limitations under s 1 of the Charter, so just because a detention is lawful does not mean that it is not arbitrary. Here is what he said:

“101   On the facts, I believe the police roadblock in this case, although authorized by the common law, did infringe the respondents’ rights under s. 9 of the Charter, which states as follows:

          9. Everyone has the right not to be arbitrarily detained or imprisoned.

An arbitrary detention can be upheld if found to be prescribed by a law which in itself constitutes a reasonable limit under s. 1 (see Hufsky [1988] 1 S.C.R. 621 and Ladouceur [1990] 1 S.C.R. 1257). It is in this sense, I believe, that the obiter in Mann [2004] SCC 52 that “a lawful detention is not ‘arbitrary’” (para. 20) should be understood. A detention, though arbitrary, may still be constitutional if the law on which the detention rests is a “reasonable limit” within the meaning of s. 1. The specific point in Mann itself was that a detention based on individualized suspicion is based on rational criteria and is not, therefore, arbitrary.”

This reasoning assumes that the notion of arbitrariness has not already been taken into account in the common law balancing exercise. What amounted to arbitrariness here, as Binnie J put it (para 103) was “…there was no individualized suspicion of them or the vehicle in which they were travelling (which did not match the 911 caller’s description) or other criteria to “tailor” the roadblock more precisely.”

One would have thought that the Dedman test, above, encompasses those matters. Binnie J did address this, however, saying (para 78):

“I do not believe the Dedman analysis and the s. 1 analysis are duplicative of one another. While both involve a measure of balancing, Dedman is a creature of the common law, and nothing is said explicitly in that case about the presumptive paramountcy of “the liberty interfered with” or putting the onus on the Crown to “demonstrably justify” the measure as a “reasonable limit”. Nor does Le Dain J. speak explicitly of such concepts as minimal impairment. The Charter standard is higher. The pre-Charter common law position was more loosely framed in recognition perhaps of the reality that relevant evidence would generally have been admissible even if the police conduct was unauthorized: R. v. Wray, 1970 CanLII 2 (S.C.C.), [1971] S.C.R. 272; Hogan v. The Queen, [1975] 2 S.C.R. 574.”

That is to take a rather static view of the common law balancing exercise, treating it as something to be done as if the Charter did not exist. Binnie J’s analysis produces the potentially confusing concept of the “lawful but arbitrary” detention. We might wonder, also, whether the detention here was really “arbitrary”: to detain for brief questioning all the people leaving the scene of a crime in the circumstances of this case did not involve the capriciousness or randomness that “arbitrary” connotes. Having found the search lawful at common law because it was reasonable, the conclusion should have been that there were no Charter issues. That was Abella J’s reasoning.

Of course Binnie J concluded that the detention was, although arbitrary, justified under s 1 of the Charter. There is merit in considering all rights balancing within the framework of the Charter, where the balancing process has received greater analysis than at common law. While this case is relatively uncontroversial, because of the potential public safety concerns, where the facts are innocuous the balancing can be controversial, and the influence of a Bill of Rights may not make the balancing exercise easier, as we saw in discussing Brooker v R [2007] NZSC 30 (blogged here, 4 May 2007).

Eliminating floppiness?

Vagueness in the criteria for the admission of evidence may allow a judge to take account of the accused’s right to a fair trial. This sort of justification for vagueness was advanced in Ahern v R (1988) 165 CLR 87, at para 17:

“The aim in limiting the use which might be made of a co-conspirator’s acts or declarations is to exclude such evidence when its admission might operate unfairly against an accused. For this purpose, the element of discretion implicit in the terms ‘reasonable evidence’ is desirable.”


That threshold of reasonable evidence refers to the non-hearsay evidence of the existence of a common intention and of the accused’s participation in the carrying out of that intention, in one of the more complicated of the common law exceptions to the rule against hearsay.

This exception to the hearsay rule (known variously as the co-conspirators exception, the preconcert exception, or the common enterprise exception) has a number of components. The hearsay component is a statement made by a person, not available as a witness, about what the accused would be doing in furtherance of the relevant common purpose. If the other requirements of this exception are met, this is the statement that becomes admissible evidence. As with all hearsay evidence, the law imposes a requirement of reliability on such a statement before it can be admissible. In addition, the co-conspirators rule has a precondition concerning the non-hearsay evidence in the case, which also applies before the hearsay statement can be admitted in evidence. This is, proof (to a degree which was the subject of today's decision in Jiang, discussed below) that there was a common purpose and that the accused was a party to it. A further limitation imposed by the co-conspirators rule is that only hearsay evidence which demonstrates the accused’s participation in the furtherance of the common purpose is admissible; narratives of what the accused did in the past do not usually satisfy this “in furtherance” requirement.

There has been a difference of judicial opinion over whether the threshold applicable to the non-hearsay evidence in this exception should be reasonable evidence, or proof on the balance of probabilities. The difference has usually been acknowledged to be of little practical significance in the cases where this point has arisen, but, nonetheless, some judges have supported the balance of probabilities formulation. Indeed, until today, the threshold in New Zealand was the balance of probabilities. Canada uses the balance of probabilities: R v Carter (1982) DLR (3d) 385 (SCC) and R v Mapara [2005] SCC 23 (blogged here 4 May 2005).

Today, the Supreme Court in Jiang v R [2007] NZSC 51 (also called Qiu v R) held that the threshold applicable to the co-conspirators’ exception is reasonable evidence. The Court noted that this criterion is in "harmony" with the provisions concerning the admissibility in the Evidence Act 2006 (enacted, but not yet in effect). Section 18(1)(a) of that Act requires, as one of the conditions of the general exception to the exclusion of hearsay statements, that “the circumstances relating to the statement provide reasonable assurance that the statement is reliable”. This, of course, is a reference to the reliability of the hearsay statement.

This “harmony” point is an agreeable consistency, but it is not compelling, because harmony between the reliability of the hearsay statement and the non-hearsay threshold is not strictly necessary. They are quite distinct requirements.

Under the original form of the Act (see below for reference to new s 12A) it would have been necessary to ask what is “reasonable assurance” of reliability of the hearsay statement. That could be indicated by non-hearsay proof on the balance of probabilities of the existence of the common intention, plus the other requirement of the common law exception, namely that the statement was made in furtherance of the common design. Or it could, as the Court held, be indicated by reasonable non-hearsay evidence of the common purpose. I use the word “indicated” here, because it is possible that a hearsay statement concerning the accused’s participation in the joint enterprise could carry reasonable assurance of reliability for reasons other than that the non-hearsay evidence reaches a threshold. It may be that, if that is the position, then the co-conspirators exception does not need to be relied on to achieve admission of the hearsay statement.

In any event, the Evidence Act 2006 is to be changed from the way it was when the Supreme Court decided Jiang. A new section, 12A is to be inserted, providing that the common law rules concerning co-conspirators statements are not to be affected by anything in the Act. Of course, one view is that the common law may be evolved to bring it into line with the general hearsay exception in the Act, but it is also possible to infer a legislative expression of confidence in the common law rules in their form as at the date of this (now, future) amendment.

Another point which is unclear is whether reasonable evidence means the same thing all the time, or whether it is variable, sometimes being more than proof on the balance of probabilities and sometimes less.

In argument in Jiang (SC41/2006, 15 February 2007) Tipping J raised the question whether reasonable evidence is more or less than the balance of probabilities (p 32 of the transcript):

“… [the trial judge] then talks about balance of probabilities as if that was the higher standard. I think she takes the view that reasonable evidence is a lower threshold than balance of probabilities which is a debatable point.”

Blanchard J added (p 33):

“… I wasn’t sure which is higher than the other. I actually think I prefer reasonable evidence which is safe to admit because it’s a more direct expression. It tells you what to look at whereas balance of probabilities is a bit floppy in this context.”

These concerns were not addressed in the Court’s judgment in Jiang. It seems that, where appropriate, the requirement of reasonable evidence will be higher than the balance of probabilities.

Unappealing confusion

The High Court of Australia’s attempt in Weiss v R (2005) 224 CLR 300 (blogged here 16 January 2006) to clarify the law concerning the application of the proviso has not prevented differences of opinion as to the results of appeals. The same Court, indeed, a Bench of judges who had all participated in the Court’s judgment in Weiss, has divided 3 – 2 on whether to apply the proviso in Libke v R [2007] HCA 30 (20 June 2007). The majority decision in Libke was to dismiss the appeal.

Weiss held that the appellate court is to apply the words of the legislation that enacts the proviso, and is not to introduce considerations of what a jury would do in the absence of the error that had occurred at trial. I suggested in January 2006 that this means that “ … the appellate court acts as a substitute jury, albeit one that has not seen or heard the witnesses.”

In Libke the point decided in Weiss was summarised by Hayne J (with whom Gleeson CJ and Heydon J concurred) at para 115 as:

“…the unanimous decision of this Court in Weiss v The Queen … warned against attempting to describe the operation of the statutory language in other words, lest such expressions mask the nature of the appellate court's task in considering the application of the proviso. The Court expressly discountenanced [para 35] any attempt to predict what a jury (whether the jury at trial, or some hypothetical future jury) would or might do. Rather, the Court said [para 35] that “in applying the proviso, the task is to decide whether a 'substantial miscarriage of justice has actually occurred'". Unless, and until, a majority of this Court qualifies what is said in Weiss, the intermediate courts of Australia must continue to apply that decision.”

Application of an authority at the same time as mentioning the possibility of it being overturned is hardly a sign of great confidence in its correctness. Indeed, it is virtually impossible for an appellate court to assess whether a substantial miscarriage of justice may have occurred without reference to what a jury might have decided in the absence of the error at trial. Hayne J does this himself (para 113):

“…the question for an appellate court is whether it was open [Hayne J’s emphasis] to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must [Hayne J’s emphasis], as distinct from might [Hayne J’s emphasis], have entertained a doubt about the appellant's guilt [footnote citing M v The Queen (1994) 181 CLR 487 at 492-493]. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt.”

Aside from references to a jury (or, "the" jury), this looks like a burden on the appellant (and, of course, on appeal there is a burden on the appellant) to show not just that there was a miscarriage of justice but also to show that it was substantial so as to prevent the application of the proviso. The minority of the Court, Kirby and Callinan JJ, held that, once a miscarriage of justice had been demonstrated, the burden was on the respondent to show that it was not substantial (para 44, citing Mraz v The Queen (1955) 93 CLR 493 per Fullagar J at 514, a passage that received a bit of a knock in para 27 of Weiss).

The minority emphasised its rehabilitation of Fullagar J’s dictum in Mraz by citing Stokes v The Queen (1960) 105 CLR 279 at 284-285 per Dixon CJ, Fullagar and Kitto JJ, saying (para 45):

“As it is put in Stokes v The Queen …, an appellate court should only apply the proviso if the irregularity "could not reasonably be supposed to have influenced the result". If this cannot be ruled out, it may be impossible for a court to be satisfied that a substantial miscarriage of justice has not occurred. …”

Even while differing in its interpretation, the minority in Libke did not seek to modify Weiss. On occasions such as this, where the time is not quite right to modify an earlier decision, a minority can at least emphasise the salvageable bits (para 43 - 44):

“In Weiss, after reviewing the history of the statutory demise of the Exchequer rule in criminal cases and pointing out that in consequence, an appellate court was not obliged in all cases in which irregularities had occurred to uphold an appeal, the Court said this [para 45]:

"Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind."


“44. The foregoing statement must be read with the several others [footnote citing: Driscoll v The Queen (1977) 137 CLR 517 at 524-525; Festa v The Queen (2001) 208 CLR 593 at 627 [110]; and TKWJ v The Queen (2002) 212 CLR 124 at 144-145 [68]] made in this Court which emphasise that, once it is shown, as it has been to all members of this Court, that irregularities disadvantageous to the appellant occurred at his trial, it is for the prosecution to satisfy the appellate court that such irregularities have caused no substantial miscarriage of justice. This is clear from the oft cited passage of Fullagar J in Mraz v The Queen …”


There are clear points of contrast here with the approach to the proviso in New Zealand: see, for example Bain v R (New Zealand) [2007] UKPC 33 (blogged here, 11 May 2007) at paras 34 – 38, referring to well settled principles which were not challenged on that appeal. The error in Bain was that the appellate court had substituted its judgment about the appropriate verdict for that of the jury. Perhaps most of the judges on the High Court of Australia would not have seen that as objectionable.