Facing inevitable defeat

Every barrister knows the difficulty of presenting a hopeless case. Especially so in criminal law, where the likelihood of settling (pleading guilty) is small. Sometimes, dissenting judgments can give clues about how the best possible arguments can be advanced.

A disagreement about whether there had been substantial defects at trial which went to the root of the proceedings occurred in Ayles v R [2008] HCA 6 (28 February 2008). The minority, Gleeson and Kirby JJ jointly took an approach similar to that of the House of Lords in R v Clarke (blogged 7 February 2008), on the issue of whether a requirement for a note on the information or indictment of an amendment to a charge is a mandatory requirement. The dissent also concerned whether a statutory provision allowed the judge to amend the charge without an application for this having been made by the prosecutor.

In Ayles the majority held that in the particular circumstances of this case there had been no unfairness to the accused in the procedure that had been adopted to amend the charge. This indeed seems correct, as the only material factual dispute in the case had been resolved in this judge-alone trial by acceptance of the accused’s version. Also, the difficulty with the charge had been the subject of discussion during the hearing and defence counsel had not taken up an opportunity to object to an amendment which was of the kind that the judge eventually made in the course of her judgment. There had been a change in the statutory provision which needed to be specified, the relevant one depending on what was the date of the offending. Apart from the section number, the change was not relevant to the facts of the case. As Kiefel J (with whom Gleeson CJ and Heydon J agreed) said at para 75, the defence could have had no objection to the amendment during the hearing. The relevant statutory provision, s 281(2) of the Criminal Law Consolidation Act 1935 (SA), did not limit the judge to acting only on an application for amendment, but she could amend the charge on her own initiative. Further, as a matter of interpretation, the particular provision requiring a note of the amendment to be made on the information or indictment, s 281(3), was not a condition for the validity of an order for amendment.

The minority in Ayles held that the noting of the amendment on the information or indictment was imperative, not directory. Since it was fundamental that a person cannot be convicted of an offence that is not alleged against him, there had been a basic defect in the proceedings. R v Clarke [2008] UKHL 8 was approved, particularly its overruling of R v Ismail (1990) 92 Cr App R 92. Further, the judge should not have amended the charge without an application from the prosecutor, because it is necessary to keep separate the functions of judge and prosecutor. Citing Gaudron and Gummow JJ in Maxwell v The Queen [1995] HCA 62 at para 26 for the proposition

“The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what”

they continued (para 37):

“The last-quoted sentence is of fundamental importance. It affords a most important principle that lies at the head of the resolution of this appeal. A decision to amend an information so as to add or substitute a new charge is plainly a decision about the particular charge to be laid or prosecuted, yet any suggestion that a court could - let alone should - decide for itself the offences with which a defendant is to be charged would be inimical to the judicial process.”

Applying R v Weiss [2005] HCA 81 (blogged here 16 January 2006) the minority held that these substantial defects went to the root of the proceedings and the proviso could not be applied.

It is surprising that there should be such a sharp difference between the interpretations of the legislation. Here are the relevant subsections of s 281:

“(2) When before trial, or at any stage of a trial, it appears to the court that any information is defective or that there is any variation between any particular stated therein and the evidence offered in proof thereof, the court shall make such order for the amendment of the information as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendment cannot be made without injustice.

“(3) When an information is so amended, a note of the order for amendment shall be endorsed on the information and the information shall be treated, for the purposes of the trial and all proceedings in connection therewith, as having been presented in the amended form.”

The majority’s interpretation seems unanswerable: subsection (2) does not require an application to be before the judge before an order for an amendment can be made, and subsection (3) applies upon the information being amended and is not a condition for that amendment. By way of contrast, in Clarke the relevant legislation had provided: “where a bill of indictment has been so preferred the proper officer of the court shall, if he is satisfied that the requirements of the next following subsection have been complied with, sign the bill, and it shall thereupon become an indictment and be proceeded with accordingly”; that is, the signing is the act that makes the document an indictment and so is an essential condition for the existence of the indictment.

Looking at the case from a distance, I imagine that the real unfairness (although that is not quite the right word) lay in the accused being denied the opportunity to enter, and take sentencing credit for, an early guilty plea to a properly framed charge. That matter could have been sorted out at trial, but defence counsel chose not to make submissions on the point, and there could well be proper reasons for not doing so. Having played the cards that way, it was too late on appeal to ask for another deal.

The minority judgment in Ayles is a lesson in how to endeavour to meet an overwhelming argument: go to the fundamentals (here, procedural fairness and the limits of proper judicial function) and argue that the case is one of substantial miscarriage of justice. This may, as here, involve a retreat into principle and away from the facts and particular circumstances. Although not a victory, it was a dignified defeat.

Judicial warnings about eyewitness identifications

Not all the warnings necessary as a safeguard against misuse of identification evidence may be required by statute. The common law may supplement what statute requires.

Evidence Acts can be rather vague on what sort of warnings to juries must be given concerning eyewitness identification. In New Zealand, s 126 of the Evidence Act 2006, and in Australia (in jurisdictions where it is applies or is adopted), s 116 of the Evidence Act 1995 (C’th), both provisions are in general terms. Often the matter is entirely one for the common law, as in may be in Canada and is in the United Kingdom.

In Pipersburgh v R (Belize) [2008] UKPC 11 (21 February 2008) there had been no identification parade and the first visual identification of the accused persons as the offenders was made in the courtroom. The Privy Council held that its decision in Holland v HM Advocate [2005] UKPC D1 at para 47 applied. This is as follows:

"In the hearing before the Board the Advocate-depute, Mr Armstrong QC, who dealt with this aspect of the appeal, accepted that identification parades offer safeguards which are not available when the witness is asked to identify the accused in the dock at his trial. An identification parade is usually held much nearer the time of the offence when the witness's recollection is fresher. Moreover, placing the accused among a number of stand-ins of generally similar appearance provides a check on the accuracy of the witness's identification by reducing the risk that the witness is simply picking out someone who resembles the perpetrator. Similarly, the Advocate-depute did not gainsay the positive disadvantages of an identification carried out when the accused is sitting in the dock between security guards: the implication that the prosecution is asserting that he is the perpetrator is plain for all to see. When a witness is invited to identify the perpetrator in court, there must be a considerable risk that his evidence will be influenced by seeing the accused sitting in the dock in this way. So a dock identification can be criticised in two complementary respects: not only does it lack the safeguards that are offered by an identification parade, but the accused's position in the dock positively increases the risk of a wrong identification."

Accordingly, two issues needed to be addressed by the judge in directing the jury: the general dangers concerning eyewitness identification, and the particular dangers concerning dock identification. The Board summarised the inadequacies of the judge’s directions, para 17 of Pipersburgh:

“In the present case, it may well be that the judge bemoaned the fact that no identification parade had been held and pointed out the advantages of such a parade. But, despite what the Board had said in Pop v The Queen (Belize)[2003] UKPC 40, he did not point out that Mr Robateau [one of the appellants] had thereby lost the potential advantage of an inconclusive parade. Moreover, while giving directions on the care that needs to be taken with identification evidence in general, the judge did not warn the jury of the distinct and positive dangers of a dock identification without a previous identification parade. In particular, he did not draw their attention to the risk that the witnesses might have been influenced to make their identifications by seeing the appellants in the dock. And, perhaps most importantly, even if the judge's directions would have ensured that the jury appreciated that this type of identification evidence was undesirable in principle, he did not explain that they would require to approach that evidence with great care. On the contrary, the closing words of the direction really left the whole matter to the jury on the basis that the witnesses said that they knew the men and it was simply up to the jury to accept or reject their evidence.”

The circumstances in this case demonstrate that even where, in the opinion of a court of first appeal, the witnesses observed the offenders in good conditions of lighting, distance and time, and where they claimed to be recognising people they had seen several times before, it is still necessary for the judge to give a detailed warning about the risk of error.

Identifying dangerous driving

You might think from my discussion of R v Hayes, blogged 15 February 2008, that analysing the actus reus and mens rea of an offence is quite easy. In R v Beatty [2008] SCC 5 (22 February 2008) the Supreme Court of Canada unintentionally demonstrated just how difficult it can be.

At issue here was the meaning of “dangerous” operation of a motor vehicle. The Court split into separate judgments 5-3-1, and each discussed the actus reus and the mens rea requirements.

This was a case where a driver who had otherwise been driving unexceptionally suddenly crossed the centre line into the path of an oncoming vehicle, resulting in the deaths of all its three occupants. The question was whether a momentary lapse of attention could constitute dangerous driving.

The Court unanimously allowed the appeal and restored the appellant’s acquittal. The reasoning was not unanimous.

As to actus reus, five Judges held that this was established. Charron J delivered the judgment of herself, Bastarache, Deschamps, Abella and Rothstein JJ, saying (para 43):

“…it may assist to restate the summary of the test in terms of both the actus reus and the mens rea of the offence. I respectfully disagree with the Chief Justice that the test for the actus reus is defined in terms of a marked departure from the normal manner of driving (para. 67). The actus reus must be defined, rather, by the words of the enactment. Of course, conduct that is found to depart markedly from the norm remains necessary to make out the offence because nothing less will support the conclusion that the accused acted with sufficient blameworthiness, in other words with the requisite mens rea, to warrant conviction. In addition, it may be useful to keep in mind that while the modified objective test calls for an objective assessment of the accused’s manner of driving, evidence about the accused’s actual state of mind, if any, may also be relevant in determining the presence of sufficient mens rea. I would therefore restate the test reproduced above as follows:

(a) The Actus Reus
The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place”.

(b) The Mens Rea
The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.”

This approach makes the question of the departure from the normal standard of driving relevant to mens rea, and Charron J concluded that although there was an actus reus, there was no mens rea because momentary negligence was insufficient to be a marked departure from the standard of care of a prudent driver.

McLachlin CJ delivered the judgment of herself, Binnie and LeBel JJ, and summarised their position at para 67:

“I therefore conclude that the correct statement of the law is as follows:
1. The actus reus requires a marked departure from the normal manner of driving.
2. The mens rea is generally inferred from the marked departure in the nature of driving. Based on the finding of a marked departure, it is inferred that the accused lacked the requisite mental state of care of a reasonable person.
3. While generally the mens rea is inferred from the act constituting a marked departure committed by the accused, the evidence in a particular case may negate or cast a reasonable doubt on this inference.”

Further, momentary lapse of attention could, without more, establish neither actus reus nor mens rea (para 69).

Accordingly, on this approach there was no actus reus or mens rea, but in particular there was no actus reus as there was no larger pattern of impugned driving.

In the third judgment, Fish J agreed with Charron J about the actus reus being defined according to its statutory context (para 84), and also agreed that there was no mens rea in the circumstances of this case, as the appellant had not failed to meet the objective standard of a reasonable person in the circumstances (para 87).

The difference in this case was over the actus reus: six judges held that it must be determined according to its statutory context, and that here an actus reus was proved, because crossing the centre line was dangerous. Three judges held that the actus reus was not proved because a marked departure from the normal standard of driving was necessary and this was not established by an instance of crossing the centre line in the context of an otherwise unobjectionable pattern of driving (para 66):

“…The actus reus is the act and the mens rea, or guilty mind, the intention to commit that act. If the mens rea of the offence requires a failure to take reasonable care which is inferred from the conduct of driving in a manner that represents a marked departure from the norm, then the actus reus must be the act of driving in a manner that represents a marked departure from the norm.”

This is the critical point of difference between the judges: is the actus reus to be defined as a result of the requirements of the mens rea? Para 66 begs the question in its minor premiss “which is inferred from the conduct of driving in a manner that represents a marked departure from the norm”.

It is not unusual for crimes to involve acts that are apparently innocuous but which are rendered culpable because of the state of mind with which they are done. Attempts are paradigm examples, but there are many others. On the minority view in Beatty, would driving while texting be dangerous, if there was no accident? Should this depend on how normal it is to drive while texting?

Retrospective application of new rules

When judges strengthen the rule against hearsay to protect the accused’s right to a fair trial, can people who were convicted under the old, lax, form of the rule complain? Does the new rule apply only to future cases (plus the case deciding the new rule), or can it be applied retrospectively?

In the United States of America, Teague v Lane, 489 U.S. 228 (1989) established a general rule for when changes in rules of criminal procedure can be applied retrospectively. The Teague rule is that such changes do not apply to cases that have become final before the new procedure is announced, with two exceptions: first, new rules putting conduct beyond the power of lawmakers to proscribe will be applied retrospectively, and second, watershed rules that implicate the fairness of the trial will be applied retrospectively.

Naturally enough, the interpretation of the Teague rule has generated much discussion and litigation. Yesterday, for example, the Supreme Court decided Danforth v Minnesota No 06-8273 (20 February 2008), and held that the Teague rule is a limitation on the right of Federal courts to overturn State court convictions, and it is not a limitation on the power of State courts to grant relief. That is, State courts may retrospectively apply changes to rules and may grant remedies, outside of the constraints of the Teague rule.

In Danforth the hearsay rule was relevant, underlying the admissibility of a child complainant’s video testimony. The child did not give evidence at trial, but a video recording of an interview with the child was played. In Crawford v Washington, 541 U.S. 36 (2004) the rule against hearsay evidence was strengthened by eliminating an exception based on indicia of reliability of confrontational testimony. The new rule is that hearsay of a confrontational nature can be admissible if the witness (ie, the person whose utterances are sought to be used as evidence) is unavailable and if the defendant had a prior opportunity to cross-examine the witness. “The only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” This new rule is referred to as a new constitutional rule of criminal procedure. It is constitutional in the sense that it is an application of the Sixth Amendment right of an accused to be confronted by the witnesses against him, via the Fourteenth Amendment’s due process guarantee that trials will be fair. The new rule was not, therefore, an invention of the Court arising from its own policy preference, instead its origin was the Constitution itself. The rule was new in the sense of not being dictated by judicial precedent at the time it was articulated. For discussion of the rule, click here.

The Minnesota State Supreme Court in Danforth had held that it was not free, under the rule in Teague, to apply Crawford to the present case. Crawford had been decided after the petitioner’s conviction had become final. The US Supreme Court reversed this decision and remanded the case for further consideration. The Opinion of the Court noted, at pp 26-27 that the question whether there had been a violation of a right was distinct from whether there was a remedy:

“It is fully consistent with a government of laws to recognize that the finality of a judgment may bar relief. It would be quite wrong to assume, however, that the question whether constitutional violations occurred in trials conducted before a certain date depends on how much time was required to complete the appellate process.”

The US Supreme Court held (p 4) that the court below had correctly recognised that it was not obliged to apply Crawford, but held that the lower court was not prohibited from doing so.

So, after all that, it was for the State court to decide whether the new hearsay rule should apply to convictions that had been finalised before the rule was laid down. It may seem a little strange that the Supreme Court did not simply decide that the second exception to the Teague rule required that the new hearsay rule applied retrospectively, because confrontation was necessary to the fairness of the trial. Without confrontation there was no sufficient reliability, and without an opportunity to challenge the reliability of the witness the trial was not fair. Perhaps the answer is that the fairness of a trial requires consideration of all its circumstances: generally speaking, if an accused had fully and freely confessed to a crime, that confession could be sufficient on its own, or together with other non-hearsay evidence, to sustain a conviction.

The case calls to mind differing approaches to interpretation of the Constitution. Richard A Posner, in “Overcoming Law” (1995) p 174 notes that interpretation is as much creation as discovery. Aharon Barack, in “The Judge in a Democracy” (2006) pp 149-152 discusses Old Textualism, saying that “for the true intent of the author it substitutes the intent of the interpreter.” EW Thomas, in “The Judicial Process” (2005) at pp 25-26 says the declaratory theory “assists to absolve judges from personal responsibility for their decisions.” Richard Posner, in “The Problems of Jurisprudence” (1990) at p 299 prefers to recognise that interpretation has plural goals – “fidelity to framers’ intent, certainty, coherence, pragmatically good results.” Was the new rule in Crawford really dictated by the framers’ intent, or would they have recognised that reliability of hearsay evidence can be established by methods other than confrontation?

You can't always get what you want ...

Where dishonesty offences involve the obtaining of a pecuniary advantage or valuable consideration, does that include getting what one is entitled to?

And, do such offences require, to negative the elements of dishonesty and absence of claim of right, a belief in entitlement to be reasonable?

In Hayes v R [2008] NZSC 3 (15 February 2008) these questions were answered yes and no respectively.

An example of this sort of offence, and one considered in Hayes, is s 228 of the Crimes Act 1961[NZ]:

“Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration,—
(a) dishonestly and without claim of right, takes or obtains any document; or
(b) dishonestly and without claim of right, uses or attempts to use any document.”

The first thing a lawyer does is ascertain what is the actus reus of each of these offences. Here, the verbs takes, obtains, uses, attempts to use are the proscribed acts, done in relation to any document. No other act is required to be proved by the prosecution, and in particular there is no reference to pecuniary advantage or valuable consideration as part of the actus reus. It is the mens rea to which those matters are relevant.

Secondly, a lawyer will ask what constitutes mens rea for these offences. The mental elements are indicated by the words “with intent to obtain” any of the specified things. In Hayes it was held that pecuniary advantage includes the obtaining of something that one does not already have, even if one is entitled to have it. Anything that enhances the defendant’s financial position is a pecuniary advantage (para 16). This interpretation of pecuniary advantage followed that in Attorney-General’s Reference (No 1 of 2001) [2003] 1 WLR 395. Other elements of mens rea for these offences are dishonesty and absence of a claim of right. It is in relation to these that a belief in entitlement will be relevant.

As to whether the belief in entitlement has to be a reasonable belief, the Supreme Court held that it does not. A subjective belief is sufficient to negative mens rea (para 34, 35). The Court indicated that in directing a jury on this issue the judge should not refer to an honest belief, but instead should refer to the accused’s belief (para 34).

The Court examined the Crown’s submission that if there was no reasonableness requirement for absence of mens rea the law in New Zealand would be out of step with that elsewhere. This was rejected after considering the position in England, Australia, and Canada.

Strange as it seems, this aspect of the appeal had not been argued in the Court of Appeal. In R v Hayes [2007] NZCA 6 (14 February 2007) the appellant had argued that the Crown had to prove that the accused was not entitled to the pecuniary advantage in question. This was on the assumption that entitlement would negate advantage. The Court of Appeal, applying its earlier decisions, held (para 14 – 16) that there would be a pecuniary advantage if the accused had used a document in a way that avoided disclosing information that would have led to a reduction in payment, and that the accused’s actual entitlement was not in issue. In the Supreme Court the same result was reached, but it was the newly taken point on the subjectiveness of mens rea that required the appeal to be allowed (para 37):

“The Judge was thereby treating the reasonableness of the accused’s belief as a necessary ingredient rather than as simply having evidentiary significance on the question whether it was or was not held. On conventional principles this was a material misdirection which gave rise to a substantial miscarriage to which it would not be appropriate to apply the proviso to s 385(1) [of the Crimes Act 1961]. There must be a real risk that the jury, or at least some members, might have thought that Ms Hayes actually held the belief she asserted but that it was not reasonable for her to do so.”

In terms of the approach to the proviso preferred in these blogs, this was an example of the kind of substantial miscarriage of justice that arises when a misdirection results in a real risk that the law has not been applied by the jury. There was no attempt to assess the strength of the evidence and the chance of a different verdict, because the trial was fundamentally flawed.

Power and legality

Formalism, technicality, the principle of legality versus substantive justice: when can statutory requirements concerning court procedures be overlooked?

In R v Clarke [2008] UKHL 8 (6 February 2008) the failure of a court official to sign an indictment was held to invalidate the ensuing trial and to require the quashing of the convictions on that invalid indictment.

Lord Bingham delivered the leading opinion; at para 17 he observed:

“…It is always, of course, lamentable if defendants whose guilt there is no reason to doubt escape their just deserts, although the present appellants, refused leave to appeal (on other points) by the single judge in 1977 and the full court in 1998, have now served the operative parts of their sentences. Technicality is always distasteful when it appears to contradict the merits of a case. But the duty of the court is to apply the law, which is sometimes technical, and it may be thought that if the state exercises its coercive power to put a citizen on trial for serious crime a certain degree of formality is not out of place. …”

The approach to the procedural breach was to ask two questions: what did the legislature intend the consequences of the breach to be as far as the document in question was concerned, and, if the document was void, what did parliament intend the consequences to be as far as the trial was concerned.

Here, the legislation and the history of judicial application of it (in the main), led inescapably to the conclusion that an unsigned indictment was void and a trial upon a void indictment was not valid.

A difficulty, requiring clarification, was recent Court of Appeal departure from its own authority, R v Morais (1988) 87 Cr App R 9. Morais, upheld in the present case, had not been followed in R v Ashton, R v Draz and R v O'Reilly [2006] EWCA Crim 794, [2007] 1 WLR 181. Ashton had been greeted by a number of academic authorities as “a victory of substance over formalism” (para 17). Lord Bingham concluded (para 20):

“…I cannot, however, accept the basis upon which the court in R v Ashton distinguished its earlier decision in R v Morais. …”

In Ashton the Court of Appeal had made the mistake of turning the question of the intention of the legislature into a search for prejudice to the defence, and a use of the lack of any such prejudice as grounds for treating the statutory requirement as a technicality.

It is not unusual to hear judges ask counsel for the defence to identify what prejudice the accused will suffer from the departure from a requirement of procedure. In such cases, the question will be, what was the intention behind the establishment of the procedure. Absence of prejudice will often, but not always, be an answer to an irregularity.

No, you decide ...

When should a court of second appeal remit the question of whether to apply the proviso to the appellate court below?

The proviso allows an appellate court to dismiss an appeal on the basis that an error that had occurred at trial did not amount to a “substantial” miscarriage of justice.

In Mahmood v Western Australia [2008] HCA 1 (30 January 2008) the High Court of Australia remitted to the Court of Appeal of the Supreme Court of Western Australia the question of whether the proviso should be applied. The error at trial, the occurrence of which the Court of Appeal had not accepted, was held by the High Court to have been a failure by the trial judge to give the jury a direction, when all she had given was a comment.

Directions are binding on the jury, whereas comments may be ignored: para 16 of the joint judgment of Gleeson CJ, Gummow, Kirby and Kiefel JJ (with which Hayne J agreed).

In this case, part of a video tape made a week after the murder of the accused’s wife, showing the accused reconstructing for the police his movements at the scene, was shown to the jury at the request of the defence. This was to show how the accused got blood on his clothing. The defence was willing to have the jury shown the whole tape, but the prosecution objected on the ground that the tape was self-serving. The only judge to deal with this point in the High Court, Hayne J, held that the whole tape was no more self serving that an ordinary police interview which included denials of guilt: there were aspects of an inculpatory nature, such as admissions of presence at the scene, opportunity, and so on. The prosecution should adduce all the admissible evidence that it has that incriminates the accused (para 38 – 41).

A problem arose at trial because the prosecutor in closing suggested to the jury that the accused’s demeanour in the part of the video they were shown disclosed a lack of emotion consistent with a cold-blooded intent to kill. The judge declined a defence request to have the whole tape shown, saying she would deal with the matter in her summing up to the jury.

The Court of Appeal had held that what the judge told the jury was sufficient to rectify the unfairness that arose from the prosecutor’s comments. The High Court disagreed, and remitted the question of the application of the proviso to the Court of Appeal.

What would an ordinary bystander expect the Court of Appeal to do? Probably, to conclude that the failure to give the jury a direction did not matter because the comment was sufficient to rectify the unfairness.

Only the comments of Hayne J could draw the Court of Appeal away from their earlier stance. From his approach it is clear that much evidence (the two hour video tape, of which only a few minutes had been shown to the jury) that should have been adduced by the prosecution was not, and that this included evidence that could have assisted the defence.

The way the proviso is to be approached in Australia has been considered most recently in Evans v R (blogged here 20 December 2007). There, since the defence was not able to be fully put at trial (alibi evidence was not permitted to be called), and because inadmissible evidence had been allowed, the proviso could not be applied. Mahmood seems to be a case where the proviso should not be applied because a significant amount of evidence in this purely circumstantial case had not been received by the trial court.

The approach to the proviso is still obscure, even though there have been numerous considerations of it by the High Court. In declining to address the difficulty further in this case, and in remitting the question to the lower appellate court, the High Court has left the impression that it may be getting a bit tired of wrestling with the problem of when to apply the proviso.

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”.