A lesser right

When does a breach of a detainee’s right to be informed of the reasons for detention or arrest make the detention or arrest unlawful?

In Saadi v UK [2008] ECHR 79 (29 January 2008) the appellants had been held in detention at a facility at Oakington for 76 hours before they were properly informed of the reasons, which were that this was the procedure for fast-tracking their applications for refugee status. The Grand Chamber held, 11 to 6, that the procedures for processing applicants for refugee status did not breach their right to liberty and security (Art 5 § 1), but it held unanimously that there had been a violation of the Art 5 §2 right to be informed promptly of the reasons for the detention.

This latter point, that there was a breach of the right to be informed promptly of the reasons for arrest or detention, had been accepted by the House of Lords: [2002] UKHL 41 at para 48, per Lord Slynn with whom the others concurred:

“48. It is agreed that the forms served on the claimants here were inappropriate. It was, to say the least, unfortunate but without going as far as Collins J [at first instance] in his criticism of the Immigration Service, I agree with him that even on his approach the failure to give the right reason for detention and the giving of no or wrong reasons did not in the end affect the legality of the detention.”

Why not? This point, apparently being agreed between the parties, was not explained. The Court of Appeal, [2001] EWCA Civ 1512, did not deal with it, and Collins J (whose judgment is appended to the CA’s judgment) held, at para 15:

“The use of inappropriate forms and the giving of reasons for detention on those forms which may not have been wholly accurate do not affect the lawfulness of the detention. The real reason [for the detention] was the new Oakington process [ie the fast-track processing of applications]. If that was lawful, the disgraceful failure to prepare proper forms cannot render it unlawful. In any event, it may be that in the cases of the illegal entrants the immigration officers could properly rely on at least the absence of identification and the clandestine entry as factors justifying detention even if, had Oakington not been used, temporary admission would have been granted. I do not need to go into the matter further since Mr Scannell has not sought to argue that the muddle about reasons renders the detentions unlawful.”

In the European Court, the Grand Chamber upheld the Chamber’s decision that there had been a breach of the right to be informed promptly of the reasons for detention, and also that the finding of the Court constituted just satisfaction for the breach. This had not been contested on the appeal to the Grand Chamber.

Accordingly, it seems that it must be taken as obvious that if a detention is lawful, it will not become unlawful merely because of a breach of the right to be informed of the reasons for it. This right must be seen as very much a lesser right, than the right to liberty. Pragmatically, of course, that is appropriate, as it may be difficult to communicate with uncooperative detainees. The breach might have some utility in supporting a claim of self defence, if the defendant, having offered physical resistance to being detained, was consequently charged with obstruction or assault.

This approach, separating questions of the lawfulness of the arrest or detention from questions of the consequences of the breach of the right to be informed promptly of the reasons for the arrest or detention, is common. For example, in Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA), it was held that:

“[64] In the High Court Miller J was prepared to accept that there were breaches of s23(1)(a) and (b) of the New Zealand Bill of Rights Act [the right to be informed at the time of the arrest or detention of the reason for it, and the right to consult and instruct a lawyer without delay and to be informed of that right] which occurred when the appellant was taken into custody pursuant to the interim recall order. He concluded, however that the detention was not unlawful and, in this regard, he referred to R v Shaheed [2002] 2 NZLR 377. Miller J was unimpressed by the contention that there was also a breach of s23(3) [the right to be brought before a court as soon as possible]. He said that the suggestion that the appellant should have been taken before a Court was inconsistent with the procedure provided for under the Criminal Justice Act. In any event, when the appellant was taken into custody on the interim recall warrant, he was not "arrested for an offence".

“[65] We broadly agree with Miller J although we have reservations as to whether there was a breach of s23(1)(a) and, indeed, as to the relevance of Shaheed. The failure to comply with s23 did not render the detention under the interim recall warrant unlawful. Still less could such failure render unlawful the detention under the final recall warrant. The contention that the appellant was required to be taken before a Court by reason of s23(3) is untenable essentially for the reasons given by Miller J.”

Here the Court of Appeal had reservations about whether it was relevant to balance the right of the state to recall a parolee to detention against the right of the parolee to be informed of the reasons for his detention, which is the exercise behind the reference to Shaheed. It would indeed be an extension of the application of Shaheed if it were to be used in this context, because that is currently reserved for the determination of evidence admissibility (now enacted in s 30 of the Evidence Act 2006). What is noteworthy here is the way the courts assume that breach of the lesser right could not affect the lawfulness of the arrest or detention.

Fixing bad law: bias in military tribunals

Perceived bias can amount to a breach of a suspect’s rights at a stage of the proceedings prior to trial. This is illustrated in Boyle v United Kingdom [2008] ECHR 15 (8 January 2008). The question of whether the suspect should be released on bail prior to his court martial was determined by his commanding officer, who was potentially required to make other decisions in the proceedings, including whether to amend the charge, dismiss it, deal with it summarily, or refer it to a higher authority for determination, and whether to be involved in the prosecution of the charge. There was also a conflict between the CO’s roles because he was responsible for discipline within the suspect’s unit.

The European Court held that there had been a breach of Art 5.3 of the Convention, as the commanding officer was not within the meaning of the phrase “a judge or other officer authorised by law to exercise judicial power” because the suspect’s misgivings about the CO’s impartiality were objectively justified.

The approach to whether there is bias (actual or perceived) is the same as when the tribunal is acting as a court (eg Martin v United Kingdom blogged here 30 October 2006), but here the issue was not fair hearing (Art 6) but instead it was the exercise of judicial power (Art 5.3).

As far as remedy was concerned, the appellant had been denied bail and was acquitted at court martial. He did not claim pecuniary loss. He did seek damages for breach of his rights, but since it could not be said that if his rights had not been breached he would have been released on bail, the Court held that the judgment itself was just satisfaction for any non-pecuniary damage. For another example of this result, see Young v United Kingdom, blogged 19 January 2007.

We may wonder how snappily changes are made to the law that the European Court finds to have been in breach of the Convention. In Young, the proceedings in the European Court began on 4 July 2000 and were concluded on 16 January 2007. In the meantime, the Prison Rules were amended from 18 April 2005 in ways that appear to be designed to meet the criticisms which were made in Young.

The present case, Boyle, began in the European Court on 25 February 2000 and was in respect of proceedings that had been conducted under the Army Act 1955[UK]. New legislation, the Armed Forces Act 2006[UK] is now in place.

LCN DNA analysis

The recent decision of the Northern Ireland Crown Court in R v Hoey [2007] NICC 49 (20 December 2007) mentions that New Zealand is one of two countries (the other being the Netherlands) where the Low Copy Number DNA analysis technique is accepted as a sound basis for expert opinion in evidence.

For a discussion of that case, and of whether LCN DNA evidence has been accepted for that purpose in New Zealand, see my draft paper available here.

Cunctation

Can the prosecution cure an unreasonable delay in the proceedings against an accused by speeding them up? Or, once the accused’s right to a trial without undue delay is breached, is the only remedy a stay of the proceedings?

A difference in the English authorities on this point was recently resolved by the Privy Council in a devolution case, Spiers v Ruddy (Scotland) [2007] UKPC D2 (12 December 2007).

The resolution of the difference brought the law into line with Strasbourg jurisprudence, by upholding Attorney-General’s Reference (No 2 of 2001) [2003] UKHL 68, and declining to follow R v HM Advocate [2002] UKPC D3.

Accordingly, if it is still possible to hold a fair trial, a stay of proceedings is not the appropriate remedy for undue delay, unless it would be, for any compelling reason, unfair to try the accused. Where neither of these two forms of unfairness are present, the appropriate remedy would be a reduction of sentence or payment of compensation.

The distinction between the forms of unfairness is important. If a person cannot be tried fairly, then he cannot be tried at all: this is axiomatic, as Lord Bingham said at para 15 of Spiers v Ruddy.

The other form of unfairness, not discussed in the case, would presumably be the public policy form of unfairness, which really means that continuation of the proceedings would bring the administration of justice into disrepute. Public policy fairness has broad application. I have mentioned public policy fairness in discussing Simmons v R (Bahamas) 4 April 2006 and Williams v R (Jamaica) 26 April 2006.

Of interest here is the mention of reduction of sentence as a remedy for undue delay. It is possible that reduction of sentence (which, obviously, is only applicable if the case proceeds to sentencing) could be a more widely used remedy for breach of rights. One of the factors that New Zealand’s new Evidence Act 2006 mentions as relevant to the decision whether to exclude improperly obtained evidence is the existence of alternative remedies that can adequately provide redress: s 30(3)(f).

"Never mind your alibi, put the balaclava on ..."

Where errors at trial meant that it could not be said that guilt was proved beyond reasonable doubt, the conviction had to be quashed and there was no question of whether the proviso should be applied: Evans v R [2007] HCA 59 (13 December 2007) at para 10 of the joint majority judgment of Gummow and Hayne JJ. A confusing aspect of this case is its references to the proviso. This is hardly surprising, given the state of the law. There were several differences between the judges on other points too.

The critical errors at trial were two, and they focused on two different sorts of evidence. The first was evidence of clothing that the accused was required by the prosecutor to wear while sitting in the witness box, and the second was evidence that the accused was not permitted to call in the nature of an alibi.

As to the clothing, the majority held that was an error, but Gummow and Hayne JJ (jointly) differed from the third member of the majority, Kirby J, as to what the error was. The joint judgment held that the evidence of what the accused looked like wearing the clothing was irrelevant and inadmissible for that reason. Kirby J found this reasoning objectionable because the point had not been argued and (para 84) “This Court does not enjoy a roving commission to create new grounds of appeal”. But, on this point of relevance, Kirby J agreed with Heydon J (with whom Crennan J also agreed) that the evidence was relevant. However, in Kirby J’s view, the evidence was inadmissible because its illegitimately prejudicial effect outweighed its probative value (para 108):

“…The complaint is that the prosecutor's questions made him sit, in the jury's presence, in a garb often associated with armed robberies; inescapably similar to the appearance of the offender shown on the video film and photographic stills; and necessarily looking sinister and criminal-like. Even if glanced at for a moment, such an image (like images of hijackers, terrorists and murderers in well-remembered films, documentaries and news broadcasts) would etch an eidetic imprint on the jury's collective mind. It is an image unfairly prejudicial to the appellant.”

The second critical error, excluding the evidence of alibi (notice not having being given), was the subject of agreement between Gummow, Hayne and Kirby JJ. The error resulted in the defence not being able to be fully put at trial. The defence had to explain why a cap containing the accused’s DNA had been recovered from the scene of the robbery. The only innocent explanation, in the circumstances, could have been that it had been planted there by the actual robber. This possibility could have been raised if the jury had heard the alibi evidence, although it only went as far as establishing that at the relevant time the accused was routinely at a distant location and no departure from that routine could be remembered.

The dissenters, Heydon and Crennan JJ, approached this point differently, holding that there was no evidentiary support for the suggestion that the cap had been planted at the scene, so the absence of the alibi evidence did not matter. This, one might think, misses the point that it was the alibi evidence that would have been relied on to support an inference of planting.

Heydon J, in a passage (para 189 – 222) with which Kirby and Crennan JJ agreed, discussed the concepts of views, demonstrations and reconstructions at common law, and the statutory references to inspections, demonstrations and experiments in the uniform evidence legislation. Kirby J disagreed with Heydon J’s holding on the status of the in-court wearing of the clothing here: Kirby J held it to be a demonstration at common law (para 107).

There was some mention of how the proviso should be approached in the light of Weiss v R (blogged here 16 January 2006). Kirby J mentioned the aspects that seem to be uncontroversial (para 116 – 118):

“116 The central holding in Weiss, which followed suggestions to similar effect in relation to the role of appellate courts both in criminal … and civil … appeals, was that the appellate function must, in every case, be discharged by the intermediate court for itself. It must be done by reference to principles derived from the statutory language. It is not to be discharged by incantations involving speculation concerning what the jury or judge at trial (or a future jury or judge) would, or might, or should have done if this or that had happened or not happened. About this much, there is, I believe, unanimity in this Court. It has emphasised the very substantial role and duty of appellate courts to review the evidence and to reach conclusions for themselves by the application of the statutory tests.

“117 There is also unanimity (for the possibility is expressly reserved in Weiss …) that there may be cases where "errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the … proviso".

“118 Beyond these points, there remain questions that I regard as still alive for final resolution if tendered to this Court in a suitable case. In a sense, those questions may be a product of the "conundrum" which the joint reasons in this appeal recognise as appearing on the face of the common form legislation in which criminal appeal jurisdiction is expressed throughout this country…. Elsewhere and earlier, the "conundrum" was described as "a riddle of the kind which Plutarch records caused Homer to die of chagrin"….”[footnotes omitted]

Part of the difficulty is the tangled language that is used to state the position. The joint judgment in the present case, at para 41 – 42, highlights and indeed endorses, a particularly complex passage in Weiss. Nonetheless, the position here was that (para 48 – 49):

“48 Because the alibi evidence was not called and was not tested at trial, the Court of Criminal Appeal could not decide from the record of the trial and the additional material received on the hearing of the appeal that the appellant was proved beyond reasonable doubt to be guilty of the offences on which the jury returned its verdicts of guilty. It could not do that because the material upon which it had to act was incomplete. An important element of the material had been excluded at trial and was necessarily presented to the Court of Criminal Appeal untested. Because it was untested the Court of Criminal Appeal could not say whether it could be taken at less than its face value. And at face value it left an issue about who took the cap to the scene and dropped it there not capable of resolution beyond reasonable doubt.

“49 The Court of Criminal Appeal could not determine beyond reasonable doubt that the appellant was the robber. The errors at trial both undermined his defence and in an important respect prevented him putting it fully. The sworn evidence the appellant had given may well have been undermined by having him dress as the robber. The alibi evidence it had to consider was necessarily incomplete.

“50 It is not then necessary to go on to decide what significance should be attached to the several features of the trial that suggest that the trial judge did not have sufficient mastery of the proceedings to ensure a fair trial. That is, it is not necessary to explore what kinds of failure in the trial process preclude the application of the proviso, beyond noting that in Weiss the Court said … that "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". [footnote omitted]

“51 These issues need not be resolved in this matter. They need not be resolved because the errors made at trial undermined the appellant's defence and prevented him putting it fully. The Court of Criminal Appeal ought not to have decided that the appellant had been proved beyond reasonable doubt guilty of the offences charged. The Court of Criminal Appeal ought not to have decided that there had been no substantial miscarriage of justice.”

This seems to mean that the appellate court should have decided that the miscarriage of justice here was substantial, and that therefore the proviso could not apply. If so, this contradicts claim in para 10 of the joint judgment, mentioned above at the beginning of this commentary, that no question arose as to whether the proviso should be applied. There was a question, and it should have been answered in the negative. I have noted many cases on the proviso (see Index), and no doubt will continue to do so. There are differences in the ways courts interpret it, and these tend to arise from the concepts of “miscarriage” of justice, and “substantial miscarriage” of justice. The juxtaposition of these concepts creates the conundrum mentioned here. In my view, the straightforward approach seems to be that the accused in the present case had not had a fair trial, because he was not allowed to present his defence, and because unfairly prejudicial evidence had been adduced. Those errors caused unfairness in that the determination of the facts was biased against the accused. Since the trial was not fair, the conviction could not be saved by the proviso.

Firearm "use" in drug transactions

Some gems from Watson v US No.06-571, 10 December 2007:

“we do not normally speak or write the Government’s way.” per Souter J, delivering the Court’s judgment in Watson, and quoting Lopez v. Gonzales, 549 U. S. (2006) (slip op., at 5).

“The Government may say that a person “uses” a firearm simply by receiving it in a barter transaction, but no one else would.” Souter J.

“I would overrule Smith, and thereby render our precedent both coherent and consistent with normal usage. Cf. Henslee v. Union Planters Nat. Bank & Trust Co., 335 U. S. 595, 600 (1949) (Frankfurter, J., dissenting) (“Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”).” per Ginsburg J, concurring in Watson.

In Watson, the Supreme Court granted certiorari to resolve a conflict in the Circuit Courts over whether a person “uses” a firearm when he trades drugs in order to obtain a gun.

I have previously noted an interpretation of the word “use”(see blog on 23 July 2007 concerning R v Steele SCC and mentioning Bailey v US) where the issue was whether a gun had been used in the commission of a crime, when its presence was revealed to a victim.

In Watson, the issue, relevant to sentencing, was whether in giving drugs and receiving in exchange a gun the offender had used the gun in the drug trafficking crime. In Smith v. United States, 508 U. S. 223 (1993) it had been held that giving a gun in exchange for drugs was using the firearm. Ginsburg J, as noted above, would have overruled that decision, but the other members of the Court did not think it was necessary to do so, and held that Smith simply did not address the present issue.

The interpretative problem was addressed in this way: “With no statutory definition or definitive clue, the meaning of the verb “uses” has to turn on the language as we normally speak it”. Unsurprisingly, the result was that a gun is not used in the commission of a drug trafficking offence by the person who receives the gun in exchange for the drugs. As Ginsburg J rather wittily put it, “It is better to receive than to give, the Court holds today, at least when the subject is guns.”

Techniques of judicial reasoning are illustrated here in the Court’s treatment of the prosecution’s arguments. I summarise the arguments here, although this may not be particularly intelligible, but it is the form of argument that I am highlighting.

The Government argued that an interpretative clue was provided by a nearby provision in the statute, and also that symmetry favoured its view ( ie both parties to the transaction are responsible for the danger to society posed by the use of the firearm; the danger recognised in Smith was reciprocated here).

The Court dismissed the context point on the ground that the other provision was too vague about who the user of the firearm would be in a transaction and this meant there was no pressure to apply the same meaning to the present provision; and, in any event, applying the same meaning in the different contexts would require overruling an earlier decision - Bailey v. United States, 516 U. S. 137 (1995) – which was unanimous and not challenged by the Government.

The symmetry argument was dismissed on the ground that, not only did it strain language, but also it was weakened by the Government’s pointing out that, in any event, receiving the gun in exchange for drugs would (at least in the Government’s view, the Court left the point open) be within another section which covered possessing a firearm in furtherance of a drug transaction. This “does leave the appeal to symmetry under-whelming in a contest with the English language, on the Government’s very terms.”

Policy v Logic

R v Daley [2007] SCC 53 (13 December 2007) calls to mind the different approaches that have been taken to the problems for criminal responsibility that are raised by the accused’s state of intoxication during the commission of what is alleged to be an offence.

The tension between policy and logic has been resolved differently in various jurisdictions.

The policy originating in English law has been adopted and developed in Canada. Fundamentally, this involves distinguishing (controversially) between offences of specific intent, and offences of basic intent. Intoxication is not, as a matter of policy, an impediment to liability for an offence of basic intent. It will, however, be relevant to whether the accused is liable for an offence of specific intent. This is discussed in Daley at paras 34 – 53.

In New Zealand the tension between policy and logic is resolved in favour of logic. The focus is on whether the mental element necessary for liability for the relevant offence was present. The position is summarised in Adams on Criminal Law, CA23.50:

“For the history of defences based on intoxication: see Singh (1933) 49 LQR 528; and for a review of the law in New Zealand: see the Criminal Law Reform Committee, Report on Intoxication as a Defence to a Criminal Charge (1984). The applicable principles are the same whether the defendant was affected by alcohol or by other drugs, or both: R v Lipman [1970] 1 QB 152; DPP v Majewski [1977] AC 443; [1976] 2 All ER 142 (HL); Viro v R (1978) 141 CLR 88; compare R v Hardie [1984] 3 All ER 848; CA23.52. The basic rule is that intoxication is never in itself a defence: R v Kamipeli [1975] 2 NZLR 610 (CA), at p 616; R v Munro (1986) 2 CRNZ 249 (CA); R v Doherty (1887) 16 Cox CC 306, at p 308; DPP v Beard [1920] AC 479, at p 499. It is not a defence that intoxication removed a defendant’s inhibitions and caused him or her to act in a way he or she would not have done when sober, or prevented the defendant knowing the act was wrong: A-G for Northern Ireland v Gallagher [1963] AC 349; [1961] 3 All ER 299 (HL), at p 380; p 313 per Lord Denning; R v Sheehan [1975] 1 WLR 739, at p 744. But there may be a defence if a mental element required for the offence was absent as a result of intoxication. In such a case the defence is the absence of the required mental element, not the intoxication, although the evidence which may support such a defence includes the fact of intoxication, as well as other relevant circumstances: Kamipeli (above), at p 616.”

It is not necessary, under this approach, to distinguish in law between states of intoxication such as advanced or extreme intoxication. Nor is it necessary to classify offences as involving specific or basic intent. Nor is it necessary to distort the concept of recklessness to accommodate liability for drunken lack of foresight.

Generalisations about the Australian jurisdictions must be treated with caution. Broadly, the common law jurisdictions generally take the same logical approach as in New Zealand: R v O’Connor (1980) 146 CLR 64 (HCA), although this may be modified by statute, as it is for example in South Australia by the Criminal Law Consolidation (Intoxication) Amendment Act 2004 (No 40 of 2004), s 5. This creates liability, notwithstanding absence of voluntariness or intention due to intoxication, for offences that do not require proof of foresight of consequences or awareness of surrounding circumstances. If death is caused, a different rule applies: the question becomes whether the accused was criminally negligent; if so, he may be convicted of manslaughter. In Queensland, a Code state, the logical approach is taken: see s 28 of the Criminal Code 1899.

If the logical approach may seem to offer little protection against the harm that may be caused by a person who deliberately removes himself from criminal liability by becoming intoxicated before embarking on his illegal purpose, the forensic realities may provide some reassurance. In practice, the prosecutor’s catch-phrase in such cases is, “A drunken intent is still an intent!” and this memorable formulation, usually repeated by the judge in summing up, is difficult to counter. “A drunken lack of intent is still lack of intent” is about as good a response as defence counsel can make. It may be that policy enters by the back door, through pragmatic fact-finding.

... the verdict of you all?

It is easy to agree with one, then the other, of two opposing views of a case. In WGC v R [2007] HCA 58 (12 December 2007) the first two judgments (Gummow CJ and Kirby J) come to the same conclusion and for similar reasons, and they seem entirely convincing. But they are dissenting judgments. The next judgment in the case, by Hayne and Heydon JJ, in its turn seems entirely convincing, although it comes to the opposite conclusion. By the time I get to Crennan J’s judgment – and she now has the disposition of the appeal under her command – I am not surprised to see her agreement with Hayne and Heydon JJ, since that is the judgment freshest in my mind.

How can two opposite conclusions seem viable? When this occurs it may be because the difference is over a fundamental point of interpretation. This indeed was the case here, where the statutory definition of an offence raised issues over what was an element of the offence and what was a mere particular, and how the obligation placed on the defence to prove certain matters affected the identification of the elements of the offence.

At a slightly lesser level of abstraction, a question in the case involved whether the verdict of the jury may not have been unanimous. Was this a case where guilt may have been proved by two separate and independent theories, so that the jury had to agree on which one they accepted, or was this a case where the defence had to prove more than one issue, and the jury may have had different reasons for deciding that the defence had failed overall?

The offence was the sort of sexual offending that is defined variously in different jurisdictions, but broadly it was having sexual intercourse with a girl aged of or above 12 and under 17 years. The charge specified a period over which the particular offending was alleged to have occurred. The majority held that this range of dates was not an element of the charge, but was merely a particular of the offending that did not have to be proved. The minority held that the date on which the offending was alleged was an element of the charge and so had to be proved beyond reasonable doubt. The statute provided a defence if the accused proved that at the time of the intercourse the girl was aged of or over 16 and that he believed on reasonable grounds that she was of or over 17.

In this case the accused admitted having intercourse with the complainant but said it occurred several years after she claimed it did, and that at the time she was aged 16 and he had the belief necessary for the defence.

Did the accused’s stance at trial make the date of the occurrence of the intercourse an element of the offence, for the prosecution to prove? Or was his stance at trial an allegation that he made that was purely a matter of defence?

Gummow CJ held (para 7) that an accused does not make allegations. This position thus coloured his interpretation of the definition of the offence, and Kirby J’s approach was similar. In particular, Kirby J pointed out (para 92), that jurors could not reach the verdict of guilty by some members concluding that the intercourse occurred when she was under 16 (so that the statutory defence did not apply) and others concluding that it occurred when she was 16 but the accused failed to establish that he believed she was 17 and that this belief was reasonable. If the jury held such differing views they were not unanimous on when the intercourse occurred. Since, for the minority, the time of the offence was an element that had to be proved beyond reasonable doubt, the accused should have been acquitted and a new trial should have been ordered.

The majority reasoning involved a focus on what were the elements of the offence as distinct from particulars provided to assist the accused in identifying the conduct that was impugned. On the view that the accused was alleging a different date than the prosecution (Hayne and Heydon JJ at para 116), and that this allegation was simply a part of endeavouring to establish the defence, the way was clear to concluding that the date on which the offending was alleged was not, in law, an element for the prosecution to establish. What the prosecution did have to establish beyond reasonable doubt was that, at whatever time the intercourse occurred, the complainant was of or over 12 and under 17 years of age.

An important reason advanced by Hayne and Heydon JJ for this interpretation was the procedural difficulty that would arise if the date of the intercourse was an element of the offence. As there was no evidential basis for alleging intercourse at the date claimed by the accused, until the accused gave evidence, an alternative charge could not have been laid at the outset. Once the accused gave evidence, there would be a basis for alleging intercourse with a girl aged 16, but if the indictment was amended by adding that count, the accused would have to be given the opportunity to plead to it and, more significantly, to cross-examine prosecution witnesses again. That muddle (which, it must be said, seems to be an overstatement of the difficulties in how the situation could have been managed: the accused, always aware of his case, would be expected to put it to the witnesses as they gave their evidence the first time: see the rule in Browne v Dunn, blogged here 12 December 2005 and 23 March 2007) is avoided if the count in the indictment is read as not specifying the date as an element and as capable of covering both versions of the facts.

As to the opacity of the verdict point (how could the basis for the jury’s verdict be ascertained for sentencing purposes?), the majority held that this is not an unusual situation: there may be different reasons for the failure of the defence, and the Judge could make his own assessment of the facts on sentencing.

So, it all came down to a difference over whether the date was an element of the offence. The minority interpretation was that the date was an element because it had particular legal consequences: if intercourse occurred when the complainant said it did, the statutory defence relied on here did not apply, but if it occurred when the accused said it did, then the defence did apply. This was a matter on which, in the minority view, the jury needed to be unanimous. Kirby J reviewed the law in New Zealand (para 87 et seq), Canada (88 – 89) and England (90), emphasising the need for the members of a jury to agree on the theory of guilt (or, the factual basis for guilt).

I have discussed this case without quoting the statutory provision which was in issue, s 49(3) and (4) of the Criminal Law Consolidation Act 1935 (SA), because it is the consequences for the shapes of arguments that arise from each alternative interpretation that is of interest here. Depending on what the elements of the offence are, there may be difficulties with jury unanimity.

The lawfulness of police helpfulness

Where do the police get their powers to be helpful?

In Ngan v R [2007] NZSC 105 (13 December 2007) the appellant was injured when his car overturned, and the police, after he had identified himself, arranged for him to be taken to hospital. Then, to clear up the accident scene, the police gathered items, including banknotes that had been scattered, and, in the course of inspecting the contents of a zipped pouch that appeared to be a sunglasses case, they discovered drugs. The purpose in taking possession of the items was to safeguard them for the owner, and the reason for opening the pouch was to make an inventory of items, also in the owner’s interests. The appellant had unsuccessfully objected to the admissibility at his trial of the evidence of the finding of the drugs.

Unsurprisingly, the Supreme Court unanimously held that the evidence was admissible. Four Judges held that there had been a search, when the pouch was unzipped, but McGrath J dissented on this point (para 101 – 117). Tipping J assumed that there had been a search, as the prosecution had not argued to the contrary, and held that the police conduct was not even prima facie unlawful as they were simply doing what any private citizen would have been entitled to do in undertaking the role of a bailee of necessity (para 44 - 54). However, in a joint judgment Elias CJ, Blanchard and Anderson JJ (delivered by Blanchard J) held that there was prima facie illegality because the police are bound by stricter standards than ordinary citizens (para 14, applying R v Waterfield [1964] 1 QB 164, 170). However, as Blanchard J put it, para 21:

“The difference in approach to Waterfield taken in these reasons from that taken in the reasons of Tipping J appears to turn on to what amounts to a prima facie unlawful interference with property. As we consider that the police conducted a search of the pouch, we take the view that prima facie there was such an interference. But it was justified in terms of Waterfield. However, the difference in approach has no practical significance because it has been overtaken by the requirements of the Bill of Rights Act.”

All five Judges agreed that pursuant to the Bill of Rights the search was reasonable and there was no reason to exclude the evidence (McGrath J indicated his agreement – if contrary to his view there was a search – at para 121). This reasonableness extended beyond the use of the information about the contents of the pouch for inventory purposes, to use as evidence of drug offending.

There was some discussion of North American authorities, as the appellant had sought to rely on them to support restriction of reasonableness to the making of an inventory. R v Caslake [1998] 1 SCR 51 was held (para 23) not to be authority for the proposition that an inventory search is unlawful because an inventory may be taken in the interests of the owner and not for police purposes. It was noted that subsequent Canadian cases have applied the Waterfield approach (R v Mann [2004] 3 SCR 59; R v Clayton and Farmer 2007 SCC 32). R v Colarusso [1994] 1 SCR 20 was also relied on by the appellant, but was distinguished (para 34) on the ground that in that case the police had an unlawful initial purpose, whereas here their purpose in carrying out the inventory was lawful. The New Zealand case R v Salmond [1992] 3 NZLR 8 (CA) was also relied on by the appellant, but was distinguished on similar grounds (para 36).

So, the answer to the question where the police get their powers to be helpful, depends on statute and common law. McGrath J was the only member of the Court who sought to go beyond that to a “residual third source of authority” (para 96), but one might respectfully wonder whether that is usefully distinct from the fundamental rule in a free society that everything is lawful except that which is prohibited by law.

At para 14 Blanchard J (with Elias CJ and Anderson J) put the central idea as follows:

“Notwithstanding that police officers may be expected to intervene in a case like the present, any interference with private liberty or property by the police is unlawful unless it can be justified either “by the text of the statute law, or by the principles of common law” [Entick v Carrington (1765) 19 How St Tr 1029 at p 1066]. An interference with property in the form of a search of the pouch occurred in this case. But was it unlawful? In order to determine whether a particular course of conduct was actually unlawful, it has been said in R v Waterfield to be relevant [[1964] 1 QB 164 at p 170. See also Hoffman v Thomas [1974] 1 WLR 374]:

“to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.”

“There may be less justification for any use of such powers where the conduct is not in pursuance of an “absolute” duty and where the apprehended danger is to property rather than persons. Overall, as Cooke P stressed in Minto v Police, “[t]he citizen’s protection lies in the insistence of the law that the steps should be reasonable” [[1987] 1 NZLR 374 at p 378 (CA). Further relevant considerations include the immediacy and potential seriousness of the apprehended danger: Police v Amos [1977] 2 NZLR 564 at p 568 at pp 568 – 569].”


Since the police had decided, “reasonably and therefore lawfully” (para 15) to take on the obligations analogous to those of a bailee, for the benefit of the owner, and since they had done no more than was reasonably necessary to safeguard the property (para 20 – 21), there was no unlawfulness or unreasonableness in their discovery of the drugs.

Guiding sentencing

A couple of recent decisions of the United States Supreme Court call attention to the operation of sentencing guidelines. In New Zealand we have made provision for guidelines to be issued pursuant to the Sentencing Council Act 2007. This, for us will be a new venture. Occasionally our Court of Appeal has handed down guideline judgments in particular areas of offending, but the utility of these is doubtful, as may be indicated by the creation of the Council. An interesting question will be whether sentencing guidelines are more effective when issued by the Council than when they are given in judgments.

How should departures from guidelines be treated by appellate courts? In Gall v US No 06-7949 (10 December 2007) the Court held (Thomas and Alito JJ dissenting) that appellate courts must review sentences under a deferential abuse-of-discretion standard. This involves acknowledging the advantages enjoyed by the first instance court in making the decision as to sentence, and then determining whether that decision was reasonable. In US v Booker, 543 U.S. 220 (2005) the Court had held invalid a statute which purported to make the guidelines mandatory, and had also held that the appellate court does not examine the sentence de novo, substituting its view for that of the lower court. So, in Gall the Court held that there was no need for extraordinary circumstances before a sentence outside the guidelines could be imposed. While the guidelines are the starting point, the initial benchmark, they are not the only consideration. The question of reasonableness of the sentencing decision depends on whether the judge had abused his discretion in determining that the relevant factors justified a deviation from the range of sentences indicated by the guidelines.

The other recent decision is Kimbrough v US No 06-6330 (10 December 2007). The guidelines differentiated markedly (there was a sentence “cliff”) between sentences for dealing in different forms of cocaine, the ordinary powder form, and the crystalline “crack” form. The appropriateness of this differentiation was a matter of some difference of opinion as between the legislature, which supported the guidelines, and the Sentencing Commission which did not. The Court held that although the sentencing judge was obliged to consider the guidelines, he could determine that, in a particular case, the within-guidelines sentence would be greater than necessary. The differential in the guidelines was not an exception to the general freedom of the judge to depart from the guidelines and to taylor the sentence in recognition of other concerns. The differential in the guidelines based on the form of the drug was a departure from the practice of the Commission of setting the guidelines according to an empirical examination of sentencing levels, and the judge could take that matter into account when deciding whether departure from the guidelines was warranted.

These cases illustrate that sentencing guidelines may introduce difficulties of their own: instead of simply examining how other courts have sentenced for similar offending and placing the present case in that context, when guidelines are imposed, the court must have proper regard for them while recognising when departure is justified. Factors specified by the guidelines as relevant may be inappropriate (for example, in Kimbrough, the form of the drug rather than its quantity).

Section 9(1)(a)(v) of the Sentencing Council Act 2007[NZ] provides that it is one of the functions of the Council to give guidelines as to grounds for departure from the guidelines. In case you don’t believe me, here is subsection (1):

“(1)The functions of the Council are—
(a)to produce guidelines that are consistent with the Sentencing Act 2002 relating to— (i)sentencing principles:
(ii)sentencing levels:
(iii)particular types of sentences:
(iv)other matters relating to sentencing practice:
(v)grounds for departure from the sentencing guidelines:”

What about departure from the grounds for departure from the guidelines? We can be reasonably sure that the guidelines will not provide for departure where the guidelines are not considered by the court to be rational (as in Kimbrough), but let’s wait and see.

When is a verdict unreasonable?

An appeal provision of the kind that I have recently referred to (see blogs for R v Jackson, 10 December 2007, and R v Grover, 23 November 2007) was the subject of today’s decision by the New Zealand Supreme Court in Owen v R [2007] NZSC 102 (11 December 2007).

The focus is on the meaning of s 385(1)(a) of the Crimes Act 1961[NZ]; I set out the provision in its context, which will be familiar in many jurisdictions:

“(1) On any appeal … the Court of Appeal or the Supreme Court must allow the appeal if it is of opinion—
(a) That the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
(b) That the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c) That on any ground there was a miscarriage of justice; or
(d) That the trial was a nullity—
and in any other case shall dismiss the appeal:
Provided that the Court of Appeal or the Supreme Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

So, in Owen the Court was concerned with only the first of the four grounds on which an appeal must be allowed. This, like the others, is – at least on a literal meaning - subject to the “proviso” in the concluding part of the subsection; however, that literal meaning is illogical, as was pointed out in Sungsuwan v R [2006] 1 NZLR 730; (2005) 21 CRNZ 977 (SC) per Tipping J (who delivered the Court’s judgment in the present case) at para 114, and the proviso has therefore been held not to apply to subsection (1)(a).

An almost literal meaning was, nevertheless, applied to subsection (1)(a) itself in Owen. I say “almost”, because the Court held that the phrase “or cannot be supported having regard to the evidence” is redundant, best seen as simply an example of what an unreasonable verdict would be. That leaves the essential part of paragraph (a) as “That the verdict of the jury should be set aside on the ground that it is unreasonable”.

At para 17 the Court held:

“…There is, in the end, no need to depart from the language of Parliament. The question is whether the verdict is unreasonable. That is the question the Court of Appeal must answer. The only necessary elaboration is that … a verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty. We do not consider it helpful to employ other language such as unsafe, unsatisfactory or dangerous to convict. These words express the consequence of the verdict being unreasonable. They should not be used as tests in themselves.”

Also rejected was the “lurking doubt” test, used in English law and referred to by the Privy Council, for example in Dookran v The State (Trinidad and Tobago), blogged here 13 March 2007.

Unexplored in this decision is the question of how sure must the appellate court be that the jury’s verdict was unreasonable? Does the appellate court have to be sure (whatever that means) that the jury could not reasonably have been satisfied to the required standard that the accused was guilty? Or, must the appellate court allow an appeal if it thinks it more likely than not that the jury could not reasonably have been satisfied to the required standard that the accused was guilty? Or, again, must the appellate court allow the appeal if it has a reasonable doubt that the jury could not reasonably have been satisfied to the required standard that the accused was guilty? The statutory language does not clarify this, it simply says the appellate court “must allow the appeal if it is of opinion” that the relevant paragraph applies.

The Supreme Court did adopt some general points from the Court of Appeal joint judgment in R v Munro [2007] NZCA 510 (referred to here in the blog entry for Grover, 23 November 2007):

“(a) The appellate court is performing a review function, not one of substituting its own view of the evidence.
(b) Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court. Assessment of the honesty and reliability of the witnesses is a classic example.
(c) The weight to be given to individual pieces of evidence is essentially a jury function.
(d) Reasonable minds may disagree on matters of fact.
(e) Under our judicial system the body charged with finding the facts is the jury. Appellate courts should not lightly interfere in this area.
(f) An appellant who invokes s 385(1)(a) must recognise that the appellate court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.”

The Supreme Court also endorsed, at para 14, the following passage from Munro:

“The correct approach to a ground of appeal under s 385(1)(a) is to assess, on the basis of all of the evidence, whether a jury acting reasonably ought to have entertained a reasonable doubt as to the guilt of the appellant. We consider the word “ought” is a better indication of the exercise to be conducted than the word “must” used in Ramage [1985] 1 NZLR 392. It emphasises the task that the Court has to perform. This test also, in our view, accords with the statutory wording.

“We consider that McLachlin J’s comments in R v W(R) [1992] 2 SCR 122 encapsulate the main elements of the test. The test is not whether the verdict is one that no jury could possibly have come to. A verdict will be … unreasonable where it is a verdict that, having regard to all the evidence, no jury could reasonably have reached to the standard of beyond reasonable doubt. The Court must always, however, keep in mind that it is not the arbiter of guilt, and that reasonable minds might disagree on findings of fact – see the comments in Biniaris [2000] 1 SCR 381 and those in Mareo [1946] NZLR 660.”

After considering the evidence and submissions in the present case, the Court concluded:

“…We are, however, not persuaded that the Court of Appeal erred in concluding that the appellant had failed to demonstrate that the verdicts were unreasonable. In short, having regard to all the evidence, the jury could reasonably have been satisfied to the required standard that the appellant was guilty on all counts. The appeal must therefore be dismissed.”

This illustrates the need for the appellant to “persuade” the Supreme Court that the Court of Appeal was wrong, and the need for the appellant to “demonstrate” to the Court of Appeal that the verdicts were unreasonable. One would think that if the Court of Appeal had a doubt about the reasonableness of the verdict, it would conclude that unreasonableness had been “demonstrated”, and that if the Supreme Court had that doubt about the reasonableness of the verdict, it would be “persuaded” that the Court of Appeal was wrong. The difficulty with this logic is that the general points (a) to (e) in Munro, above, give the appellate court reason not to promote its view of the evidence.

We might wonder whether the operative part of s 385(1)(a) should be the phrase “cannot be supported having regard to the evidence”, with the unreasonableness of a verdict being an instance of that. It’s now a bit too late for that interpretation, but it would have put the focus on the evidence and the need for proof of guilt to the criminal standard; the appellate court would normally acknowledge the jury’s advantage in seeing and hearing the evidence and would perform its review function by examining the rationality of inferences and the completeness of the evidence. This approach would also indicate that a reasonable doubt in the mind of the appeal court would be sufficient to quash the conviction. There are, however, as the Court in Owen explained, historical reasons why the phrase "cannot be supported by the evidence" should be taken as a reference to what is really a question of law, namely whether there is evidence on each element of the relevant offence. This interpretation, appropriate from the perspective of history and precedent, has the result that the phrase rarely has any use, as cases where vital evidence is absent are unlikely to proceed to verdict.

Well done, or half-baked?

Unresolved differences between judges in a split decision can leave us wondering whether the case was really ready for judgment. In R v Jackson [2007] SCC 52 (6 December 2007) the Court divided 5 – 2 on whether there had been sufficient evidence to support the verdict in the Judge alone trial of the appellant for cultivation of cannabis (illegal production of marijuana).

The majority held that there had been sufficient evidence to support the conviction. Their judgment, delivered by Fish J, does not go into the evidence in the same detail as does the dissenting judgment of LeBel and Deschamps JJ.

Fish J repeated passages from the trial Judge’s decision. On reading that, one would agree that the case against the accused seemed conclusive. However, Deschamps J pointed out, particularly at para 18, that in critical respects the trial Judge’s findings were not supported by the evidence that had been given.

We do not have the majority’s response to the minority’s difficulty. If we wanted to delve further into the case, we would have to look, not merely at the full reasons given by the trial Judge, but at the transcript of the evidence in the case. It is not possible for most readers of the Supreme Court’s judgments to do so. All we can do is assume that the dissenters have pointed to a difficulty that the majority cannot answer: the equipment discovered at the crime scene may not have supported an inference that the accused participated in the offending.

This is not to suggest that each individual inference must support guilt beyond reasonable doubt. A weak inference of guilt from some facts may combine with a stronger inference of guilt from other facts, so that guilt may be established, by this combination, beyond reasonable doubt. In this case, the equipment might support a weak inference of guilt; the rubber boots that the accused wore when he got out of the tent when the police arrived might also support a weak inference of guilt; so too might the fact (if indeed it was a fact) that the amount of work done suggested participation by all five of the people at the scene. These, although not individually sufficient to support guilt beyond reasonable doubt, might in combination have done so. The minority gave better reasons than the majority for rejecting that conclusion.

Interestingly, on the recently discussed topic of an accused’s lies in his testimony in court (see blog for 23 November 2007), Deschamps J quoted with approval, at para 16, a passage from the dissenting judgment in the Quebec Court of Appeal, which included the following:

“The appellant’s testimony, which the judge did not find to be credible, cannot be used to prove, a contrario, the acts that the appellant denies having committed; in other words, not believing the appellant’s denial that he handled any object whatsoever used to produce cannabis does not justify a conclusion that, contrary to what he says, he did handle the objects in question.”

Breach or miscarriage?

When should an appeal court acknowledge that an error at trial must be remedied by the granting of a re-trial? To uphold a conviction that was obtained at a wrongly conducted trial is, in effect, to turn the appellate court “into an instrument of injustice rather than a protection against miscarriages of justice.” That was how Kirby J put it in Gately v R [2007] HCA 55 (6 December 2007).

He was (one could almost say “of course”) dissenting. The errors in that case did not, according to the other Judges, amount to a miscarriage of justice. Often, in appeals, the focus is on whether a miscarriage of justice was “substantial”; if not, the proviso could be applied and the appeal against conviction dismissed. But here, the focus was on the prior question of whether the errors at trial amounted to miscarriages of justice.

The approach to an appeal against a conviction is set out in the appropriate statute in the relevant jurisdiction, and, as it happens, there is broad similarity in these provisions wherever the English law has been influential. In this case, the method was described by Heydon J as follows:

“…First, was there an irregularity? Secondly, if so, was it, or did it cause, a miscarriage of justice? Thirdly, if so, can it be said, after examining the whole trial record, that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned their verdict of guilty so that no substantial miscarriage of justice has actually occurred within the meaning of the "proviso" in [the relevant provision, here] s 668E(1A) [of the Criminal Code (Q)]? Fourthly, if so, does the case nonetheless fall within a category precluding the application of s 668E(1A) on the ground, for example, that there has been a significant denial of procedural fairness or a serious breach of the presuppositions of the trial[citing Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at 317 [45]- [46] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ, blogged here 16 January 2006]? On occasion it may be desirable to consider the fourth stage before the third.”

Here the trial errors were (1) not having the judge and counsel present when, after retiring to consider their verdict, the jury viewed again a video recording, that had, appropriately in the circumstances here, been prepared before trial as the method through which the young complainant was permitted to give evidence and be cross-examined, and, (2) failing properly to warn the jury about the weight they should give to a written statement made by the complainant to the police.

Whereas the majority attached great weight to the fact that at trial counsel for the accused had agreed to the procedure adopted for the jury’s re-viewing of the video, Kirby J pointed out that counsel had originally objected, and that the Judge and prosecuting counsel had a duty to follow the law as it had been established to be:

“47. Just as the failure of trial counsel to reserve points or to perceive and raise grounds of appeal is not fatal to the case of an accused person who comes to the judicature of the Commonwealth for protection against injustice[50], so the mistaken acquiescence of trial counsel in the proposals of the judge and the prosecutor is not, in the end, conclusive of this appeal. This is particularly so because trial counsel's initial objection to the course initiated by the judge was correct. That objection should have alerted the judge and the prosecutor to the applicable principles expressed and repeated in successive decisions of the Queensland Court of Appeal.

“48. What is the practical use of courts of criminal appeal laying down clear rulings to be observed in criminal trials if, when they are not observed by the judge or prosecutor, this Court (whilst substantially endorsing those rulings) does not proceed to afford the accused, who is adversely affected, the relief that he seeks? Apart from the injustice in the particular case, this approach, when it becomes a common practice of this Court, presents a serious question as to whether further appeal to uphold basic principles had any point. The best way that this Court can reinforce principle in such matters, where a miscarriage has occurred, is to order a retrial. That is when principle tends to be learnt and applied.”

On the other hand, here the trial was unusual in that the only evidence against the accused was from the complainant: there was no evidence of any statement made by the accused to the police, and he did not give or call evidence. The argument put to the jury by his counsel was that the complainant’s evidence was not reliable and this was indicated by its inconsistencies. Did the error in allowing the jury to see the video again in the absence of judicial supervision amount to a miscarriage of justice, or was it merely a procedural error? The majority held that there was no miscarriage of justice.

Nevertheless, Hayne J (with whom the other Judges, including on this point Kirby J, agreed) stressed that the video recording was not to be treated as real evidence: it was not an exhibit in the case, and the jury’s access to it during their deliberations was to be the same as its access to any other part of the record: the judge could read (play) it to them as necessary and with appropriate warnings. The trial process is essentially oral (para 88) and it is seldom appropriate to admit a record of it as an exhibit (para 93).

This unanimous view of the treatment of the record of the evidence in the case is contrary to an increasing trend, in some jurisdictions, of allowing the jury to have transcripts of the evidence available for use during their deliberations. For example, the New Zealand Law Commission, in its Report “Juries in Criminal Trials” (NZLC R69, at p 205 para A49), recommended that juries be given a copy of the notes of evidence when they retire to consider their verdicts. It has become acceptable for juries to be given copies of the previous day’s evidence at the start of the next day; see R v Taylor (2005) 21 CRNZ 1035 (CA); R v McLean (Colin) [2001] 3 NZLR 794; (2001) 19 CRNZ 362 (CA); R v H 23/6/03, CA436/02; R v Haines [2002] 3 NZLR 13; (2001) 19 CRNZ 331 (CA).

At para 88 of Gately, Hayne J referred to Butera v Director of Public Prosecutions (Vict) [1987] HCA 58; (1987) 164 CLR 180 at 189 per Mason CJ, Brennan and Deane JJ, and endorsed the following:

“The adducing of oral evidence from witnesses in criminal trials underlies the rules of procedure which the law ordains for their conduct. A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is given in documentary form. Oral evidence is public; written evidence may not be. Oral evidence gives to the trial the atmosphere which, though intangible, is often critical to the jury's estimate of the witnesses. By generally restricting the jury to consideration of testimonial evidence in its oral form, it is thought that the jury's discussion of the case in the jury room will be more open, the exchange of views among jurors will be easier, and the legitimate merging of opinions will more easily occur than if the evidence were given in writing or the jurors were each armed with a written transcript of the evidence.”

Of course views of what is appropriate for juries to have during their deliberations may change over time as experience grows and knowledge increases of the procedure as experienced by jurors. We may acknowledge that changes in procedural rules may be appropriate, but still wonder whether breaches of those rules should amount to miscarriages of justice, especially as the subsequent question on an appeal is whether any such miscarriage was “substantial”.

Misuse of lies

In a three-paragraph judgment the Supreme Court of Canada has held that “It was not open to the Court of Appeal to acquit the respondent on the basis of speculation about a possible explanation of his conduct that was flatly contradicted by his own testimony”: R v Grover [2007] SCC 51 (22 November 2007).

This superficially attractive proposition does not withstand scrutiny.

Nor does it accurately reflect the evidence in the case, as recorded in the Saskatchewan Court of Appeal majority judgment: (2006) SKCA 146 (15 December 2006).

First, the SCC’s proposition. This is an interpretation of the appeal provision, commonly found throughout the Commonwealth, which requires a conviction to be quashed if it is unreasonable or cannot be supported by the evidence (here, in the Canadian Criminal Code RSC 1985, s 686(1)(a)). At trial, if the trier of fact (here it was a judge-alone trial) rejects any part of the accused’s evidence, that part must be put aside, so that the adequacy of the case against the accused is judged on the evidence that the trier accepts. Juries are routinely directed to this effect when an accused has given evidence which the prosecution says should be rejected.

Only where the trier finds that the accused has lied, and where there is no rational explanation for that lie other than that it was told out of a consciousness of guilt, can the lie be taken as evidence that supports the prosecution case. These kinds of lies are very rare.

And so to the evidence. R v Grover was not a case where the accused’s testimony, if it was a lie, must have supported an inference of guilt. Mr Grover, a landlord of a residential property where there had been a fire, asked a tenant to sign a form certifying that the smoke alarm had been inspected before the fire. He was charged with attempting to pervert the course of justice by asking the tenant to do that. The critical issue was whether, when he asked the tenant to sign the form, he knew that the alarm had not been inspected. Part of the tenant’s evidence (she was a prosecution witness) was quoted in the Court of Appeal’s majority judgment, and this included the following:

“Q Was he insistent that you do it, or was he just asking you in a nice voice, just —

A Well, he mentioned a couple of times to sign it and, you know, because they had checked the smoke detectors, and I kept telling him not in my presence.

Q Did he seem to accept that?

A I thought so, yeah.

Q And what did he say about your name being on the lease?

A He said I could sign it because my name was on the lease, whether I was there or not when somebody checked the smoke detectors.”

Particularly important here is the tenant’s evidence that “…he mentioned a couple of times to sign it … because they had checked the smoke detectors, and I kept telling him not in my presence.”

Equally significant, on the description of the case given by the majority in the Court of Appeal, at para 12, is the following:

“The question before this Court is whether this evidence, in light of the findings of credibility of the trial judge, supports the finding that the appellant [Mr Grover] knew that no inspection had taken place on January 25, 2005. In my respectful view, it does not. Clearly, there is no direct evidence that the appellant knew this fact. The appellant did not admit to knowing it and Mr. Plamondon [the caretaker in charge of the premises] did not testify that he told the appellant. Despite an exceedingly lengthy cross-examination, the appellant was not cross-examined on this point.”

So is not clear that Mr Grover’s testimony “flatly contradicted” (the phrase used by the Supreme Court, above) the possible explanation for his lie.

The relevant conflict in the evidence was over whether Mr Grover had asked the tenant to sign the form when he saw her in hospital. His denial of that did not mean, in the majority’s view, para 13-14, that he knew the inspection had not taken place: “it is consistent with a belief that the inspection had taken place but that the tenant’s signature was missing from the inspection record—exactly what the appellant represented to the fire inspector…. It is reasonable to assume that he would consider it crucial that in this case the inspection records be in perfect order.”

If indeed he lied in his evidence about asking the tenant to sign the form, Mr Grover could have been trying to shield himself from an incorrect judicial conclusion that he must have known there had been no inspection of the smoke alarm, when in reality he had merely been trying to get the paperwork straightened out. The proper course for the court was to ignore the lie, and to consider what was the proper inference on the evidence it accepted. The Court of Appeal majority held that the circumstantial evidence did not support the conclusion of guilt to the standard of beyond reasonable doubt. By accepting the fallacy that had been stated by the dissenting judge in the Court below, the Supreme Court of Canada prevented itself from considering the evidence and determining whether it supported the verdict.

The New Zealand Court of Appeal last week delivered an important decision on the corresponding appeal provision of the Crimes Act 1961[NZ], s 385(1)(a): R v Munro [2007] NZCA 510 (16 November 2007). The Court unanimously quashed the appellant’s conviction as it could not be supported by the evidence, and entered an acquittal, in a lengthy joint judgment (Glazebrook, Chambers, Arnold and Wilson JJ) with which Hammond J largely agreed. In the course of considering the law in other jurisdictions, reference was made to the Canadian case R v Yebes [1987] 2 SCR 168, which was also cited by the Saskatchewan Court of Appeal in R v Grover. The joint judgment in the New Zealand Court of Appeal summarised the position, para 27, as follows:

“In Yebes the Supreme Court explained the obligations of an appellate court under this provision in the Criminal Code…. The appellate court must look beyond the question of whether there is some evidence to support the conviction. Rather, it must determine whether, on the whole of the evidence, the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered (at 430). It was recognised that, to some extent, this will require the court on appeal to re-examine and re-weigh the evidence and ascertain whether it is sufficient to justify the verdict.”

And further, in relation to R v Biniaris [2000] 1 SCR 381; (2000) 143 CCC(3d) 1, the Judges added, para 30,

“…Close scrutiny might reveal that the jury reached its verdict pursuant to an analytical flaw, or judicial experience about the need for special caution in evaluating certain types of evidence might lead an experienced appellate judge to conclude that in a given case the jury’s fact-finding process was flawed and thus the result was unreasonable….”

These statements of principle were held, para 42, to be applicable in New Zealand. It is to be hoped that the error in the Supreme Court of Canada’s dismissal of the appeal in R v Grover, is not.

"... anything you say may be shown on television."

Even improperly obtained confessional statements, that are excluded from evidence at trial, may be permitted by the court to be shown on television. In Rogers v TVNZ [2007] NZSC 91 (16 November 2007) this was held by the 3-2 majority. No doubt, as a result, lawyers will be warning their clients about this when giving advice in response to a police request for an interview.

The minority, Elias CJ and Anderson J, considered, in separate judgments, that there were too many unresolved issues, particularly concerning what relevance, if any, the method by which the media obtained a copy of the videotape of the excluded confession, had to the ultimate issue.

The majority, Blanchard, Tipping and McGrath JJ - also delivering individual judgments – preferred to treat the proceedings as if they were an application under the Criminal Proceedings (Search of Court Records) Rules 1974. This made sense, because TVNZ could have simply said, never mind about the copy we have, give us another. What was important for the majority was the need for open justice, for public discussion at an informed level about the decisions made in this case.

Public interest is high. I have previously blogged the Court of Appeal’s decision in the present proceedings (see 8 August 2006). There I suggested that public discussion that is properly informed will be difficult to achieve, because of the complexity of the issues relevant to the admissibility of the evidence here. The Supreme Court majority did little to further inform the public, leaving people to hope that the media give them sufficient material, or to fossic it out for themselves.

Mr Rogers’ uncle, Mr Lloyd, had been tried for a murder and acquitted, but was convicted of manslaughter. He was sentenced to 11 years in prison. Eventually, when the sentence was almost served, the police became doubtful as to the correctness of Mr Lloyd’s conviction. This was because Mr Rogers had made admissions to family members, and had demonstrated how he alone had killed the victim. The Crown consented to Mr Lloyd’s appeal against conviction being allowed. Mr Rogers was arrested and charged with the murder. His lawyer obtained an agreement from the police that they would not interview Mr Rogers unless the lawyer was present. In breach of that agreement, the police arranged for the temporary release of Mr Rogers from custody (he had been denied bail) so that he could, without his lawyer’s knowledge, go with the police to the scene of the murder and demonstrate, on videotape, how he did it.

The High Court ruled that this tape was admissible evidence against Mr Rogers. On appeal, the Court of Appeal overruled that decision, holding that the tape was inadmissible. This was because the police had improperly obtained the evidence on the tape by breaching Mr Rogers’ right to legal advice and his right to silence, in circumstances where the police should be held to their agreement with Mr Rogers’ counsel. A full balancing exercise was not carried out; that would have involved detailed consideration of the seriousness of the impropriety by which the evidence was obtained, and the public interest factors including the importance of the evidence in the overall context of the other evidence that would be before the jury.

At trial, Mr Rogers was acquitted.

The Supreme Court in these subsequent proceedings did not elaborate the balancing factors. The case came before it as an appeal by Mr Rogers against a Court of Appeal ruling that TVNZ could broadcast a copy of the tape that the police had given it at a stage before the Court of Appeal had ruled it inadmissible. The Supreme Court expressed concerns about the propriety of the police dealing with what should, it seemed, be treated as information not for public release. A problem with these proceedings was that proper pleadings, identifying issues and providing for the development of legal argument, had not occurred because of the urgency of this case (the issue of broadcasting) in its early stage.

Among the points made in the Supreme Court are the following:

• Acquitted people cannot expect to be able to prevent public discussion of their cases (Blanchard J at 47; Tipping J added that an acquittal is not a declaration of innocence, at 66).
  

• Open justice is important, indeed it is the dominant interest here. The courts should not be perceived to be discouraging criticism (Blanchard J, at 56). A defensive attitude by the courts would undermine public confidence in the judicial system (Tipping J, at 74).
  

• The public have an interest in being fully informed so they can make their own assessments of the reasons for exclusion of the tape, and uninformed commentary is not in the interests of the administration of justice (Blanchard J at 51; McGrath J at 124).
  

• An interview with the police is not (at least, here) private information (Blanchard J at 48; McGrath J at 99, although Elias CJ disagreed at 23, and Anderson J at 145 would not go as far as Blanchard J).
  

• The issue here was how far the consequences of the ruling of inadmissibility should affect the use of the tape for other purposes (Tipping J at 64).
  

• The approach to search of court records should be to release information unless there is good reason to withhold it (Tipping J at 67).
  

• The court might have an inherent power to prevent access to information, even before it becomes part of the court’s record (McGrath J at 109 - 113, but Anderson J would not encourage the courts to arrogate to themselves a broad claim of inherent power used to constrain rights (at 152).
  

• The argument, advanced by Mr Rogers, that publicity at this stage would disrupt his rehabilitation, was met by the fact that he was responsible, by opposing publication, for the delay, and if publication had occurred earlier (with reports of the verdict) it would not have had a disruptive effect (Tipping J at 70).
  

• The breaches of Mr Rogers’ rights were adequately remedied by the exclusion of the tape from evidence at his trial (Blanchard J at 49; Tipping J at 65; McGrath J at 132 but noting that broadcasting might be seen as undermining this vindication of Mr Rogers’ rights; Anderson J doubted, at 148, that exclusion will necessarily always be a sufficient remedy, and Elias CJ was of similar view at 28-29).
  

• Knowledge by suspects that their statements to the police might be broadcast will not deter them from talking to the police (Blanchard J at 48, noting that the police don’t seem to be concerned about this; but Elias CJ was not so sure at 30).
  

No doubt, public discussion will first focus on whether Mr Rogers was really guilty. Whether the verdict would have been different if the jury had seen the tape can only be a matter of speculation. More interesting, at least to lawyers and informed commentators, is the propriety of excluding the tape from evidence in this case. This is difficult to assess, because the judgment of the High Court (ruling it admissible) is not readily accessible – at least at present – and the Court of Appeal, as noted above, did not conduct a detailed analysis. The Supreme Court judgments do not criticise the Court of Appeal’s decision. Blanchard J was careful, at 54, not to indicate any doubt about the legal soundness of the Court of Appeal’s ruling, but at 53 he said that the tape may have assisted the prosecution case, and Anderson J at 149 said it was “weighty” evidence. Tipping J refrained from expressing any view on whether a correct balance had been struck in this case between redressing breaches and the effective prosecution of crime: 72. It is not clear whether the Supreme Court Judges viewed the tape; probably they did not.

In not giving fuller details of the relevant facts in its judgments the Court leaves it to the media to supply the public with sufficient information for proper debate of the issues.

The television programme broadcast on Sunday night, 18 November 2007, on TV One, did not discuss two matters I would like to know more about: first, why was Mr Rogers’ lawyer’s agreement with the police treated by the Court of Appeal as if it were a right supplementing the right to counsel in the Bill of Rights, and second, why didn’t the Court of Appeal treat Mr Rogers as having waived his right to counsel before going with the police to make the reconstruction of the murder?

On the other hand, the excerpts of the tape shown on television did not suggest to me that the confession made there was likely to be true, as opposed to being a re-enactment of a fantasy that, apparently, evidence in the trial had suggested Mr Rogers thought was true. There seemed to be some pressure on Mr Rogers from family members to admit guilt, and he had indeed made several previous admissions to them, but the police had not thought they were believable. Perhaps an issue of voluntariness arose; it is difficult to say without full knowledge of the case. The television programme left me with the impression that the police investigation of the case had not resulted in persuasive evidence so a confession was necessary. But as to its reliability, who can really say? It does not seem appropriate to call the part of the tape shown on television “weighty” evidence for the prosecution, and comments in the Supreme Court judgments about the inadequacy of a verbal account of the video (Tipping J at 72; McGrath J at 123) may seriously underestimate the power of words and imagination compared with the relatively mundane visual presentation.

Muscles strong, but unflexed

When the power of a legislature is limited to its territory, an intent to supply drugs outside that territory may not be within the scope of the offence of possession of those drugs for supply. This was the position in Seymour v R (Bermuda) [2007] UKPC 59 (5 November 2007).

The power of the legislature of Bermuda is set out in s 34 of the Bermuda Constitution Order 1968, using the familiar formula “peace, order and good government” of Bermuda. Thus, where the appellant had possession of heroin in Bermuda, intending to take it to Florida for supply to others, that was not an offence of possession for supply under the law of Bermuda. The Privy Council substituted a conviction for possession simpliciter. At trial, the accused had conceded possession, because he had valid legal arguments and they were accepted, and the Privy Council held that it would be unfair to substitute a conviction for preparing to export the drug, because if he had faced that charge he may not have conceded possession.

In New Zealand, the power of the parliament to make laws is set out in s 15(1) of the Constitution Act 1986: “The Parliament of New Zealand continues to have full power to make laws.” This “full power” departs from the “peace, order and good government” formulation, and is not expressly limited to New Zealand territory. There is a common law presumption against extra-territorial effect, but express provision in a statute will of course displace that. Such a provision is s 12C of the Misuse of Drugs Act 1975:

“(1)Subject to subsection (2), every person commits an offence against this Act who, outside New Zealand, does or omits to do any act that would, if done or omitted in New Zealand, constitute an offence against—
(a)Section 6 …
(2)No proceedings for an offence against subsection (1) may be brought unless—
(a)The person to be charged is a New Zealand citizen; or
(b)The person to be charged is present in New Zealand.
(4)Subsection (1) does not apply if the doing or omission of the act to which the charge relates was not an offence under the law of the place where the act was done or omitted.”

So, if the facts of Seymour occurred here, the intention to supply the drug to someone outside New Zealand would be an intention to commit an offence outside New Zealand (assuming, of course, that supply of the drug was an offence in the foreign jurisdiction), but would that intention be an intention to “supply” in terms of s 6(1)(f)? That provision makes it an offence as follows:

“(1) Except as provided in section 8 of this Act, or pursuant to a licence under this Act, or as otherwise permitted by regulations made under this Act, no person shall— …
(c) Supply or administer, or offer to supply or administer, any Class A controlled drug or Class B controlled drug to any other person, or otherwise deal in any such controlled drug; or
(d) Supply or administer, or offer to supply or administer, any Class C controlled drug to a person under 18 years of age; or
(e) Sell, or offer to sell, any Class C controlled drug to a person of or over 18 years of age; or
(f) Have any controlled drug in his possession for any of the purposes set out in paragraphs (c), (d), or (e) of this subsection.”


Notably, s 6(1)(f) does not include the purposes in s 12C, ie the purpose of committing the offence of supply outside New Zealand. Parliament could have included that, had it wished.

So, it seems that, notwithstanding the assumption of extraterritorial powers, the New Zealand legislature has not made provision for circumstances like those in Seymour.

Impugning acquittals

Disputes about relevance and fairness can arise over whether an accused should be able to inform the jury that he was acquitted at an earlier trial if the prosecution now seeks to use some of the evidence from that earlier trial in its present case. This problem can arise even if the two trials concern different allegations.

Yesterday, the High Court of Australia considered an example of this in Washer v Western Australia [2007] HCA 48 (8 November 2007). I say “an example” because there is no general rule that applies: in some cases an accused will be allowed to insist that the jury be told that he was acquitted at an earlier trial when some evidence adduced at it is now produced by the prosecution. In other cases, it will not be appropriate to inform the jury of the earlier verdict. The critical point is, what is the relevance of the earlier acquittal? What fact in issue in the present trial does the earlier acquittal make more probable?

Sometimes, the reason for the earlier acquittal will be clear. This could occur if that trial involved a dispute over one fact, as long as the only reason for the verdict must have been a reasonable doubt as to proof of that fact. But it is likely to more frequently to be the case that the reasons for the earlier acquittal could be various, as occurred in Washer. It will be difficult to establish relevance in the present case if there could be more than one reason for the earlier acquittal.

In Washer, the prosecution adduced evidence that the accused had previously been dealing in methylamphetamine (as it is called in the relevant jurisdiction), in order to prove that he was, on this present occasion, also intending to deal in that drug. The sole relevance of this evidence was to establish his intent. However, that evidence had been presented at a trial where the accused was alleged to have conspired with two others (not involved in the present trial) to sell or supply the drug over a period extending over a year, and he was acquitted on that charge. The present charge was conspiring to possess, for sale or supply, another amount of the drug, over a period of two weeks. These two weeks were in the early part of the year with which the former trial had been concerned.

There could be a number of reasons for the earlier acquittal. These were pointed out in the joint judgment of the majority, Gleeson CJ, Heydon and Crennan JJ (Hayne J concurring) at para 28:

“It is impossible to know why the jury at the earlier trial acquitted the appellant of conspiring with [the other two] to supply drugs to third parties. They may have doubted that the conversations between the appellant and [the other two] related to drugs. They may have doubted that the conversations showed more than that the appellant was in the business of dealing in drugs on his own account. They may have concluded positively that the appellant was a legitimate businessman. It is not possible to tell; and it could not be suggested that the jury at the [present] trial … should have been invited to re-examine the conduct of the earlier trial in order to reach their own conclusion about what the jury at the earlier trial must have decided.”

And,

“41 … Let it be supposed that the jury had been informed that the appellant had been charged previously with being a party to an agreement (not related to the [present matter]) with [the other two], that he had been acquitted, and that the jury must therefore act on the basis that there was no agreement to supply between those three men. That would have been a complete statement of what was involved in the benefit of the acquittal. There was no process of reasoning whereby that information would have made less plausible any step in the [present] prosecution case as it was finally left to the jury. There was nothing more that the jury could properly have been told. If the jury had been told that the earlier acquittal established that the appellant was not a drug dealer, or that he was not talking about drugs in his conversations with [the other two], that would have been untrue. If the trial judge had told the jury they must give the appellant the full benefit of his acquittal without further explanation, that would have been mischievous.”

Kirby J dissented in his reasons, but agreed in the dismissal of the appeal as a result of applying the proviso. Kirby J held that fairness required the accused, in the particular circumstances of the present matter, to be permitted to inform the jury of the earlier acquittal. The risk of impugning the earlier verdict was significant (para 91):

“ … If the conversations with [the other two] were designed to prove that Mr Washer "is not talking about ... anything innocent", was the appellant not entitled to have the second jury informed that, notwithstanding any conclusion that they might otherwise reach about such evidence, an earlier jury had, in fact, found the appellant not guilty of the offence with which he was then charged? And that this jury finding was to be treated as a finding that he was innocent and given full effect by the second jury?”


Although Kirby J found there to have been an error of law in the trial, namely the ruling that the jury should not be told of the earlier acquittal, this did not amount to a substantial miscarriage of justice in the present circumstances, because the other evidence of intention here was strong. Accordingly, he applied the proviso, upheld the conviction, and, with the other judges, dismissed the appeal.

The result is that impugning the earlier acquittal does not occur if the acquittal might be inconsistent with the use now made of the evidence; what is required for impugning is that there must be such an inconsistency.

A moment's silence

When a suspect held in police custody exercises his right to remain silent, does continued questioning amount to a breach of that right, and is a subsequent statement involuntary?

Two approaches to these issues are possible. First, a rule may be imposed making all police questioning unlawful once the suspect has exercised the right to silence. Secondly, further police questioning may be permitted, subject to a rule against cross-examination, with the ultimate criterion for admissibility being voluntariness.

The Supreme Court of Canada has chosen the latter alternative: R v Singh [2007] SCC 48 (1 November 2007), although only by a majority of 5-4. The majority held that the overriding consideration was the voluntariness of the challenged statement and that breach of the right to silence would prevent a conclusion that the statement had been made voluntarily. Whether the right to silence was breached depends on the balance to be struck, in the circumstances of each case, between the state’s interest in the effective investigation of crime, and the suspect’s “individual interests” in being protected from “the unfair use by the state of its superior resources” (para 45, citing R. v. Hebert, 1990 CanLII 118 (S.C.C.), [1990] 2 S.C.R. 151). Police persistence in questioning may raise the issue of voluntariness.

The minority in Singh held that the police should be required to respect the suspect’s exercise of the right to silence as it is a constitutional promise (para 97), and there is no evidence that this would hamper the police in the investigation of crime; but even assuming it would have that effect, a rule was preferable to reflect the importance of the right to silence (para 96). While acknowledging that the detainee may well change his mind over whether to exercise the right to silence, any such change must not be compelled by police persistence, which is what happened in this case (para 95).

This split over whether the facts of the case supported a doubt over the voluntariness of the statement shows how sensitive this balancing exercise is to elusive and personal judicial dispositions. It remains arguable that the more robust and predictable rule based approach is preferable where the issue is voluntariness.

In New Zealand there is currently a divergence in the Court of Appeal, between cases that seem to support a rule of no questioning after the suspect exercises the right to refuse to answer questions (R v Kai Ji [2004] 1 NZLR 59; (2003) 20 CRNZ 479 (CA)), and cases where a balancing exercise seems to operate (R v Ormsby 8/4/05, CA493/04). The Chief Justice’s Practice Note on Police Questioning does not settle the issue, but it repeats the Judges’ Rule against cross-examination. Section 29 of the Evidence Act 2006 requires, without a balancing exercise, exclusion of statements “influenced by oppression” (which reflects the common law’s voluntariness rule), and in other respects leaves the matter of the propriety of police questioning to be determined by a balancing exercise under s 30. That provision applies, inter alia, to statements obtained in breach of the New Zealand Bill of Rights Act 1990. So, there is (Ormsby), or may be (Kai Ji) a balancing exercise under the Bill of Rights to determine whether there has been a breach of the right to silence, and, if there has, there is a balancing exercise (unless the rule against oppression applies) under s 30 to determine admissibility. In other words, balancing applies unless there is a reasonable doubt that the statement was influenced by oppression.

Apart from the accused’s right to a fair trial, which is an absolute right, balancing of other rights against each other and against other interests is well recognised. This is clear from the summary given by Lord Bingham in Procurator Fiscal (Scotland) v Brown [2000] UKPC D3 (5 December 2000), also called Brown v Stott:

“Effect has been given to the right not to incriminate oneself in a variety of different ways. The fifth amendment to the Constitution of the United States provides that no person shall be compelled in any criminal case to be a witness against himself. The Indian Constitution (article 20(3)) provides that no person accused of any offence shall be compelled to be a witness against himself. The International Covenant on Civil and Political Rights 1966 provides in article 14(3)(g) that in determination of any criminal charge everyone shall be entitled to certain minimum guarantees, including a right not to be compelled to testify against himself or to confess guilt. The Canadian Charter of Rights and Freedoms confers on a person charged with an offence the right not to be compelled to be a witness in proceedings against himself in respect of that offence (section 11(c)). The New Zealand Bill of Rights Act 1990, in section 25(d), grants to everyone who is charged with an offence, in relation to the determination of the charge, certain minimum rights which include the right not to be compelled to be a witness or to confess guilt. The recently adopted constitution of South Africa grants rights to a suspect on arrest to remain silent and not to be compelled to make any confession or admission that could be used in evidence against him (section 35(1)(a) and (c)) and also a right to a fair trial, which includes rights to remain silent and not to testify during the proceedings and not to be compelled to give self-incriminating evidence (section 35(3)(h) and (j)). In contrast, the Universal Declaration of Human Rights 1948, in articles 10 and 11(1), grants a right to a fair trial in terms similar to the European Convention, but, like the Convention, contains no express guarantee of a privilege against self incrimination. Thus the right we have to consider in this case is an implied right. While it cannot be doubted that such a right must be implied, there is no treaty provision which expressly governs the effect or extent of what is to be implied.

“The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for. The general language of the Convention could have led to the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But this approach has been consistently eschewed by the Court throughout its history. The case law shows that the Court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree. Ex facto oritur jus. The Court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention: see Sporrong and Lönnroth v. Sweden (1982) 5 EHRR 35, at paragraph 69 of the judgment; Sheffield and Horsham v. United Kingdom (1998) 27 EHRR, 163, at paragraph 52 of the judgment.”

See also the discussion on this site of cases involving the right to silence: Em v R 4 October 2007; Carr v Western Australia 25 October 2007; R v Turcotte 5 October 2005; Tofilau v R 3 September 2007.

What is the point of having two balancing exercises, one determining whether there has been a breach of the right, and another to determine what are the admissibility consequences of any breach? The point is, from the perspective of criminal law and the admissibility of evidence, elusive, because in each balancing exercise the same matters weigh in favour of the public interest. If these public interest matters are outweighed by the suspect’s rights, then the next balancing exercise comes into play, and of course the suspect’s (now, the defendant’s) rights will again prevail. The public interest factors in each balancing exercise are, in terms like those stated by the majority in Singh, the community interest in effective investigation and prosecution of crime. Those interests will be expressed, by the time the case gets to trial, as the starting point for sentencing for the particular offence, if the defendant is convicted. In the end, there is no harm to the public interest in taking a more rigorous approach, without balancing, to determining whether there has been a breach of the right to silence, because the public interest will eventually be considered in the weighing exercise to determine the admissibility of the statement.

Also, if there are two balancing exercises, one at the investigatory stage and one at the trial stage, and if the investigation was carried out in circumstances of urgency where the public interest was high enough to outweigh the suspect’s right to silence, there would be no breach of his right; but if at his trial he faced a much less serious charge, carrying lower public interest factors, there would nevertheless be no breach of rights to weigh in favour of exclusion of his statement. This supports the inappropriateness of duplicating the balancing exercise, even where the public interest values change in weight.

In the different context where the question is whether the defendant committed an offence or was simply exercising his rights (see, for example, Brooker v R, blogged here 4 May 2007) the balancing exercise does have a purpose. The point in issue in such cases is whether the defendant breached another person’s rights, and the factors to be balanced are different from those discussed above. There is no two-tier balancing in cases like Brooker.