The limits of comity

In Canada (Justice) v Khadr [2008] SCC 28 (23 May 2008) s 7 of the Canadian Charter of Rights and Freedoms was applied extra-territorially. This was possible because Canadian officials had participated in a procedure in the detention centre at Guantanamo Bay that violated Canada’s obligations at international law. This participation occurred when copies of interviews that the Canadian officials had conducted at Guantanamo Bay with Mr Khadr, a detainee, were handed over to the US authorities. The violation of fundamental human rights protected by international law, arising from the procedures then in force at Guantanamo Bay, was held to have occurred on the basis of the procedural failings recognised by the United States Supreme Court in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (blogged here 30 June 2006).

“26. … The effect of the United States Supreme Court’s holdings is that the conditions under which Mr. Khadr was held and was liable for prosecution were illegal under both U.S. and international law at the time Canadian officials interviewed Mr. Khadr and gave the information to U.S. authorities. Hence no question of deference to foreign law arises. The Charter bound Canada to the extent that the conduct of Canadian officials involved it in a process that violated Canada’s international obligations.”

Section 7 of the Charter provides:

“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Here, fundamental justice required that Mr Khadr be given, to facilitate his defence to charges that were to be tried at Guantanamo Bay, copies of certain interviews. This was analogous to, but not the same as, the disclosure obligation that would arise in a domestic prosecution. The difference here is that the Canadian authorities were not prosecutors:

“32. … The scope of the disclosure obligation in this context is defined by the nature of Canada’s participation in the foreign process. The crux of that participation was providing information to U.S. authorities in relation to a process which is contrary to Canada’s international human rights obligations. Thus, the scope of the disclosure obligation must be related to the information provided to U.S. authorities.”

The extent of this disclosure requirement was to be determined in accordance with s 38.06 of the Canada Evidence Act, which involves a judicial oversight procedure to protect security and public policy considerations.

It is clear that even if the US SC had held the Guantanamo Bay procedures to be legitimate, the SCC would not have been obliged to agree: para 25.

This case distinguished the facts of R. v. Hape, 2007 SCC 26 (CanLII), [2007] 2 S.C.R. 292, 2007 SCC 26 (blogged here 11 June 2007), and applied dicta in that case on the limits of comity:

“ 18. … comity cannot be used to justify Canadian participation in activities of a foreign state or its agents that are contrary to Canada’s international obligations. It was held that the deference required by the principle of comity “ends where clear violations of international law and fundamental human rights begin” (Hape, at paras. 51, 52 and 101, per LeBel J.). The Court further held that in interpreting the scope and application of the Charter, the courts should seek to ensure compliance with Canada’s binding obligations under international law (para. 56, per LeBel J.).”

On the question of the material that should be disclosed here, while that was left to the designated judge to determine, the SCC observed that confining it to the interviews that had been given to the US authorities may not be sufficient for the conduct of Mr Khadr’s defence:

“34. … disclosure of an inculpatory statement shared with the U.S. authorities might require disclosure of an exculpatory statement not shared to permit Mr. Khadr to know his jeopardy and prepare his defence. It would seem to follow that fairness requires disclosure of all records in any form of the interviews themselves — whether or not passed on to U.S. authorities — including any transcripts, recordings or summaries in Canada’s possession. For similar reasons, it would seem to follow that Mr. Khadr is entitled to disclosure of information given to U.S. authorities as a direct consequence of Canada’s having interviewed him.”

[Update: the Court does not have jurisdiction to compel the government to order Mr Khadr's return to Canada: Canada (Prime Minister) v Khadr [2010] SCC 3 (29 January 2010).]

Preventing statutory unfairness

It may sometimes be unjust for the courts to wait for the legislature to extend the law to fully achieve its purpose. A stay of proceedings can be a means of avoiding an injustice that the legislature, had it considered the position, would itself have sought to avoid.

In R v Asfaw [2008] UKHL 31 (21 May 2008) the majority (Lords Bingham, Hope and Carswell) applied the stay of proceedings route to avoiding an injustice. The dissenters, Lords Rodger and Mance, would on ordinary principles of statutory interpretation have upheld the conviction.

Broadly, the appellant was a refugee who, in the course of escaping from Ethiopia, entered the UK at Heathrow and, while at the airport, used a false passport to try to board a flight to Washington DC. She was charged with two counts: using the false passport, and attempting to obtain air services by deception. The first charge carried a defence pursuant to legislation protecting refugees, while the second was not listed with the offences to which that defence was available.

Both charges arose from the same facts. Lord Bingham was concerned about the purpose of prosecuting the appellant for the second:

“31. The appellant … submitted that it was an abuse of the criminal process to prosecute her to conviction under count 2. That submission calls for closer consideration. It was not an abuse to prefer charges under both counts, since the respondent was entitled to question whether the appellant was a refugee, and if she was not neither the article nor the section could avail her. It is true that the two counts related to identical conduct and the second count served no obvious purpose, but the court could ensure, on conviction, that no disproportionate penalty was inflicted. If, however, the second count was included in the indictment in order to prevent the appellant from relying on the defence which section 31 would otherwise provide, I would share the Court of Appeal's view (para 24) that there would be strong grounds for contending that this was an abuse of process. It is not at all clear what legitimate purpose was sought to be served by including the second count, and it must be questioned whether there was any legitimate purpose.”

Section 31 of the Immigration and Asylum Act 1999[UK] provides for the relevant defence for refugees. The appellant had been acquitted on count 1, pursuant to this section, so there was no doubt that she was a refugee. Lord Bingham continued:

“32. … if [as they did] the jury were to acquit the appellant on count 1 in reliance on section 31, it would be both unfair and contrary to the intention of the statute to convict her on count 2. The Attorney General expressly recognised that additional offences might have to be added to section 31(3), and when such offences, requiring addition to the list, arose in individual cases it would plainly be necessary to avoid injustice in those cases. There was in my opinion a clear risk of injustice in this case if the jury were to acquit on count 1 but convict on count 2.”

But,

“33 … If the jury convicted the appellant on count 1, rejecting her section 31 defence, there would have been no objection in principle to further prosecution of count 2. But the appellant would be likely in that situation to have pleaded guilty (as she did in response to the judge's ruling), and the question would arise whether further prosecution of count 2 could be justified: given that the judge had power to sentence the appellant to imprisonment for 10 years on count 1, it could scarcely be suggested that his powers of punishment were inadequate to reflect the appellant's culpability.”

Lord Hope agreed (para 69), calling the omission of the count 2 offence from the offences to which the relevant defence applied an “oversight” (para 67).

The dissenters interpreted the legislation as requiring the appellant to present herself to the UK authorities and to obtain valid travel documents if she wished to travel on to the United States, so both charges were justified. There was, on this view, no need to address the need for a remedy. On the majority approach, the appellant had still been fleeing from persecution when she was at Heathrow. The difference between the conclusions of the Law Lords here may not have occurred without this difference in perception of her situation.

The majority approach is an illustration of how injustice that would arise from a literal reading – and indeed from an ordinary and reasonable reading - of legislation can be avoided by a stay of proceedings at an appropriate time. This could not be taken as an illustration of the court refusing to enforce a statute, but it is a case where the unfair consequences of application of a statute were rejected and avoided by the court’s inherent power to prevent an abuse of process.

Multiplying the Crown's benefit from crime

Depriving an offender of the benefit he obtained from his offending was the subject of three related House of Lords decisions this week: R v May [2008] UKHL 28, R v Green [2008] UKHL 30, and Crown Prosecution Service v Jennings [2008] UKHL 29 (all 14 May 2008).

The leading decision is May, where broad principles were stated for the interpretation of the relevant legislation, the Proceeds of Crime Act 2002[UK] (para 48):

“(1) The legislation is intended to deprive defendants of the benefit they have gained from relevant criminal conduct, whether or not they have retained such benefit, within the limits of their available means. It does not provide for confiscation in the sense understood by schoolchildren and others, but nor does it operate by way of fine. The benefit gained is the total value of the property or advantage obtained, not the defendant's net profit after deduction of expenses or any amounts payable to co-conspirators.

“(2) The court should proceed by asking the three questions posed above: (i) Has the defendant (D) benefited from relevant criminal conduct? (ii) If so, what is the value of the benefit D has so obtained? (iii) What sum is recoverable from D? Where issues of criminal life style arise the questions must be modified. These are separate questions calling for separate answers, and the questions and answers must not be elided.

“(3) In addressing these questions the court must first establish the facts as best it can on the material available, relying as appropriate on the statutory assumptions. In very many cases the factual findings made will be decisive.

“(4) In addressing the questions the court should focus very closely on the language of the statutory provision in question in the context of the statute and in the light of any statutory definition. The language used is not arcane or obscure and any judicial gloss or exegesis should be viewed with caution. Guidance should ordinarily be sought in the statutory language rather than in the proliferating case law.

“(5) In determining, under the Proceeds of Crime Act 2002, whether D has obtained property or a pecuniary advantage and, if so, the value of any property or advantage so obtained, the court should (subject to any relevant statutory definition) apply ordinary common law principles to the facts as found. The exercise of this jurisdiction involves no departure from familiar rules governing entitlement and ownership. While the answering of the third question calls for inquiry into the financial resources of D at the date of the determination, the answering of the first two questions plainly calls for a historical inquiry into past transactions.

“(6) D ordinarily obtains property if in law he owns it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else. He ordinarily obtains a pecuniary advantage if (among other things) he evades a liability to which he is personally subject. Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property. It may be otherwise with money launderers.”

The results were that the Crown may obtain orders for confiscation of benefits that exceed the total benefits derived by the offenders from the crime they jointly committed. This is because each offender may – on appropriate facts - be treated as having joint ownership of the proceeds. To “benefit” from crime means to obtain property so as to own it, whether alone or jointly, which ordinarily connotes a power of disposition or control.

In submissions in Green there was some reference to what was argued to be a different approach in Australia, Canada and New Zealand. There was no decision on whether there was indeed such a difference (I suggest not, in NZ), but the House of Lords held that even if there were a difference, legislation in other countries would not assist in interpreting the meaning of the statute in question.

On being unable to communicate with one's self

Perceptions of trial fairness may depend on what is known about the accused’s mental condition. An appellate court that does not know that the accused was suffering, while on trial, from a mental disorder that made him incapable of adequately communicating with his counsel, may assess the record of the trial and conclude that the trial was fair. Another appellate court, armed with fuller information about the accused’s mental condition, may assess the same trial as having been unfair. Such unfairness would arise, not from the course of the trial, but from the unfairness of making a person under mental disability stand trial.

This occurred in Cumming v R [2008] NZSC 39 (15 May 2008). The Supreme Court concluded (para 21):

“It is very clear to us that by reason of mental disorder Mr Cumming was under a disability or, in terms of the present legislation, unfit to stand trial. For that reason there has been a substantial miscarriage of justice. The appeal must therefore be allowed.”

The Court did not refer to, and in particular did not criticise, the Court of Appeal’s assessment of the trial as being fair: [2005] NZCA 260. That Court had summarised its view of the trial as (para 67):

“The reality of this case is demonstrated by the defence the appellant did conduct at the trial. He did understand what he had to do and he put his defence in a way which left the jury able to make fair assessments of the complainant as a witness, and also of the appellant. The transcript shows that the appellant’s conduct of his defence had elements of confusion and other difficulties not unusual in litigants who represent themselves but no more than that. There was a fair presentation of his defence to the jury so that no considerations arise of the kind addressed by the Supreme Court in Sungsuwan v R [2005] NZSC 57 at [48], [58] and [65] to [68].”

The accused had represented himself at trial, having dispensed with the services of a series of counsel. A psychiatric report, available to the Supreme Court but not to the courts below, concluded that

“As Mr Cumming was acting as his own counsel the impact of his mental disorder was even greater upon his functioning in court. Conducting a delusionally based defence and with obvious impairments in his ability to process information, make appropriate inquiries and respond to what was happening, Mr Cumming, as his own counsel, could be said to be unable to communicate adequately with himself. Essentially both defendant and counsel were mentally disordered in this situation.”

This case highlights the need for accurate psychiatric diagnoses at an early stage, and the need for review of those as a trial proceeds. The difficulty is that a person who is advancing, albeit in a confused and irritating way, a coherent defence, may easily be misdiagnosed as being fit to stand trial. A coherent defence may nevertheless be the product of delusion and mental disorder. This case establishes that a person on trial has the right to present a defence that is not the result of mental disorder, regardless of how rational it may appear to be.

Facts, fairness and the proviso

Once again the application of the proviso has come under the scrutiny of the High Court of Australia: Gassy v R [2008] HCA 18 (14 May 2008).

Previous efforts at clarification of when a miscarriage may be regarded as substantial have been noted here: see in particular Weiss v R (blogged 16 January 2006) and AK v Western Australia (blogged 27 March 2008), and there are others (see Index).

Before the appellate court can apply the proviso, and dismiss the appeal against conviction, it must be satisfied of two things: that the evidence properly admissible against the accused established guilt beyond reasonable doubt, and, if it did, that the trial was fair.

In Gassy, the three majority Judges differed in the routes they took to conclude that the proviso could not be applied here. Gummow and Hayne JJ jointly held that the evidence could not be regarded by an appellate as establishing guilt beyond reasonable doubt. Kirby J held that, although the evidence could well be held to establish guilt to that standard (I reflect here his Honour’s “cusp” remark, mentioned below), the trial was not fair.

Two miscarriages of justice were relied on by the appellant: the first, held not to be relevant because its result favoured the appellant, was refusal of the trial judge to permit the accused, who at all other times represented himself on the charge of murder, to have legal representation for the limited purpose of conducting a voir dire. The second was the “assistance” that the judge endeavoured to give the jury in overcoming an impasse after a lengthy period of deliberation. The supplementary directions lacked balance because they did not adequately mention the defence perspective on the relevant issues.

Interestingly, Gummow and Hayne JJ held that, although this supplementary direction was an error, the question of whether the evidence could be said on appeal to have proved guilt beyond reasonable doubt still had to be considered. This approach, reflected in para 31, is one of avoiding classifying some errors as “fundamental” (para 33). It was, on this view, necessary to examine what effect the error could have had on the outcome of the trial (para 34). These Judges, therefore, were not holding that the misdirection itself was unfair. They noted that the jury had, before the impugned supplementary directions, deliberated for more than a day and a half, and that therefore an appellate court would have to be careful before concluding that guilt had been proved beyond reasonable doubt (para 35). The inferences that the prosecution sought to persuade the jury to draw were not compelled by the evidence (para 37), and there should be a retrial.

Kirby J, agreeing in the result, reasoned that the evidence of guilt was (virtually) conclusive, but this was a case of trial unfairness and therefore the proviso could not be applied. He agreed (para 46-47) with Gummow and Hayne JJ that there had been miscarriages of justice in both the voir dire point (albeit that this was not determinative) and the supplementary direction point. But he held that the supplementary direction lacked impartiality (para 51) and that the question of the application of the proviso therefore arose (para 57). He did not consider that the miscarriage of justice here was one which involved “the presuppositions of a criminal trial” (para 61) - but at this point one must ask whether use of this classification is appropriate, notwithstanding the authority for it – and he proceeded to evaluate the strength of the evidence (para 69-91) and concluded that this case was “at the cusp”: a very powerful prosecution case. This should be read bearing in mind that, a retrial being ordered, it would be inappropriate for the appellate court to actually say it thought guilt had been established beyond reasonable doubt. However, it was clear form the events at trial that the impact of the supplementary direction on the jury was significant, as they returned the guilty verdict shortly afterwards.

Kirby J does not go so far as to say the proof of guilt was conclusive, and he acknowledges (para 99) that the jury had to make a number of factual judgments. The Judge’s assistance in the supplementary direction had, therefore, to be impartial and should have referred to the defence perspective more than it did. Kirby J summarised his approach by saying (para 105), after referring to the minority approach of Crennan and Kiefel JJ:

“…It is enough for me to say that I place the highest value on the principle of manifest judicial impartiality and neutrality. Those qualities were of cardinal importance given the impasse that the applicant's trial had reached. In the end, this case stands for the principle that, particularly in circumstances of jury disagreement after a long trial, the trial judge must balance "ways forward" that lead to conviction with a reminder of those that lead to the opposite outcome.”

But in remarks that indicate he considered the prosecution case strong enough to support the conviction, Kirby J concluded (para 106-107) by referring to dicta in Weiss and AK concerning fundamental trial defects (as found here) which prevent application of the proviso notwithstanding that the appellate court may consider guilt to have been proved.

It is unfortunate that the majority Judges differed in their approaches to the application of the proviso here. Gummow and Hayne JJ obscure the primary importance of the right to a fair trial by their treatment of the strength of the prosecution case, while Kirby J emphasises it.

Fifteen years of illegal trials?

For fifteen or so years the statutory procedure for empanelling juries in the British Virgin Islands has not been followed. In R v Clarke (blogged here 7 February 2008) a trial was held to be a nullity because an indictment had not been correctly signed. Was the British Virgin Islands problem more profound?

The Privy Council addressed this in DPP (Virgin Islands) v Penn (British Virgin Islands) [2008] UKPC 29 (8 May 2008).

Here, the Registrar of the Court had not maintained a list from which an array of jurors was summoned for jury service. From this array the trial jury (of nine) would be impanelled. Instead of maintaining the jury list, the list of registered voters was used. The qualifications for jurors and electors differed.

Constitutional lawyers will be thinking this was an opportunity for application of the “de facto doctrine”, or, more precisely, the doctrine which holds valid, in certain situations, the acts of officials who have not been lawfully appointed to office. This doctrine is particularly useful in revolutions and coups, where an illegal government purports to appoint officials to carry on the day to day business of the state. Although it was not necessary to apply this doctrine here, the Board did make reference to it in paras 22-23.

No, here the solution was arrived at by reasoning consistent with that used in Clarke: if the legislative intent was not that the consequences of a breach of the enacted procedure should be a nullity, then, as long as everything was done in good faith, the proceedings would not be invalid on that score:

“18. The modern tendency is no longer to seek to identify or distinguish between mandatory and directory acts, but the Board's judgment in [Montreal Street Railway Company v. Normandin [1917] AC 170] … underlines the need for careful examination of the relevant legislation, to ascertain the purpose of statutory procedures for the impanelling of an array and whether an intention should be attributed to the legislature that non-compliance with such procedures should render a jury trial a nullity, irrespective whether it may have occasioned potential unfairness or prejudice. The Board recognises the seriousness of a criminal charge and the particular vigilance that the courts will exert to maintain the fairness and integrity of criminal proceedings. But the Board considers that there is scope for the reasoning in the Montreal Railway case in a criminal context.”

These considerations come into play once there has been a trial at which no objection to the procedure in question was made. Had such an objection been made at trial, the judge may well have decided to quash the proceedings (para 33). But, where there is no reason to think that there had not been a fair trial, quashing would only be appropriate if that was the clear intention of the legislature.

Here, the legislation indicated a flexible approach was available to objections to the array at trial: s 24 of the Jury Act 1914 provides

“24. Every application, made at a sitting of the High Court, for the quashing of an array, shall be heard and determined by the presiding judge, and no array shall be quashed on the ground of any formal defect, or of any breach of any of the provisions of this Act, unless the presiding Judge is satisfied that it is expedient, on the merits and in the interests of justice, that the array should be quashed.”

The Board reasoned, para 35:

“Section 24 is not itself applicable on an appeal. It deals with applications to the presiding judge before whom the applicant is to be tried. But its flexible focus on the interests of justice assists to confirm the appropriate approach to the question which is in issue on the present appeal: whether the appellant's trial and conviction should be regarded as a nullity or set aside and a fresh trial ordered. There is no suggestion that the trial judge or jury were aware of the Registrar's default in his or her statutory duties. The Board does not accept that the Registrar's awareness of the default equates with awareness on the part of the judge or jury. There is no suggestion of any disadvantage or prejudice to the respondent by reason of the defects in process which occurred. Any jurors' register would have been very largely identical with the voters' list from which the array was in fact selected. There is no suggestion that the array was not taken from the voters' list in a manner which was comparably random to the way in which it should have been taken from a jurors' register. There is no suggestion that any of the nine jurors who eventually served at the trial did not meet the age and other qualifications in the Jury Act.”

The conclusion was that there was nothing in the legislative intent to require the trial that had occurred in these circumstances to be declared invalid.

Controlling the back-seat driver

Who makes the important technical decisions concerning the way a defence is to be run, the accused or counsel representing him?

In Gonzales v United States [2008] USSC No 06-11612 (12 May 2008) the plurality opinion, delivered by Kennedy J, contains the following observations (p 9):

“Giving the attorney control of trial management matters is a practical necessity. ‘The adversary process could not function effectively if every tactical decision required client approval.’ Taylor v. Illinois, 484 U. S. 400, 418 (1988). The presentation of a criminal defense can be a mystifying process even for well-informed laypersons. This is one of the reasons for the right to counsel. See Powell v. Alabama, 287 U. S. 45, 68–69 (1932); ABA Standards for Criminal Justice, Defense Function 4–5.2, Commentary, p. 202 (3d ed. 1993) (‘Many of the rights of an accused, including constitutional rights, are such that only trained experts can comprehend their full significance, and an explanation to any but the most sophisticated client would be futile’). Numerous choices affecting conduct of the trial, including the objections to make, the witnesses to call, and the arguments to advance, depend not only upon what is permissible under the rules of evidence and procedure but also upon tactical considerations of the moment and the larger strategic plan for the trial. These matters can be difficult to explain to a layperson; and to require in all instances that they be approved by the client could risk compromising the efficiencies and fairness that the trial process is designed to promote. In exercising professional judgment, moreover, the attorney draws upon the expertise and experience that members of the bar should bring to the trial process. In most instances the attorney will have a better understanding of the procedural choices than the client; or at least the law should so assume. See Jones v. Barnes, 463 U. S. 745, 751 (1983); see also Tollett v. Henderson, 411 U. S. 258, 267–268 (1973); cf. ABA Standards, supra, at 202 (‘Every experienced advocate can recall the disconcerting experience of trying to conduct the examination of a witness or follow opposing arguments or the judge’s charge while the client ‘plucks at the attorney’s sleeve’ offering gratuitous suggestions’). To hold that every instance of waiver re quires the personal consent of the client himself or herself would be impractical.”

That case concerned the jury examination and selection procedure, but obviously these remarks are of general application.

There will be times when, as defence counsel, one realises that the client would have a much better chance if only his instructions were different. There is, importantly, an obligation to follow the client’s instructions and not to create a defence where none would otherwise have arisen. Failure to conduct a defence in accordance with instructions can give rise to a substantial miscarriage of justice eg R v Irwin [1987] 1 WLR 902; [1987] 2 All ER 1085.

In Adams on Criminal Law the position is summarised, at CA385.13, as:

“Counsel’s obligation to conduct the trial according to the accused’s instructions carries with it an obligation to take instructions where matters arise as to which counsel’s current instructions do not extend: R v Kerr 11/4/00, CA504/99. The requirement does not extend to investigating in detail all possible defences so as to obtain the “informed consent” of the accused to the running of some alternative to that most open on the facts: R v Nicholson 8/10/98, CA439/97. Nor need counsel canvass with the accused all possible options, including those which are tactically unsound or depend on matters solely within the accused’s own knowledge: R v Momo 23/7/02, CA115/02. Counsel is not required to inform the accused that he or she has the right to insist on a particular course of action being taken: R v Hookway [2007] NZCA 567, at paras 19 and 23.

“The accused will not be bound by concessions made without authority by counsel during sentencing: R v Xie [2007] NZCA 571, at paras 6 and 7.”

"As I said before ..."

The most subtle and troublesome rules of the common law concern the use that may be made at trial of a witness’s own out of court statements. These may be consistent with the witness’s trial testimony, or inconsistent with it. In R v Dinardo [2008] SCC 24 (9 May 2008), an appeal which was allowed on other grounds, the trial had been by judge alone and the judge had misstated the law concerning the use that may be made of a complainant’s prior consistent statements.

The appeal was allowed on the grounds that insufficient reasons for his verdict were given by the judge, causing the accused to be deprived of his right to be told the reasons he was convicted (R v Gagnon, [2006] SCC 17), and of his right to meaningful appellate review (R v Sheppard, [2002] SCC 26).

However, it is the use of prior inconsistent statements that is of interest here. Such statements may be called “narrative evidence”. In a refreshingly unanimous decision, delivered by Charron J, the Court quoted, at para 37, McWilliams’ Canadian Criminal Evidence (4th ed. (loose-leaf)), at pp. 11-44 and 11-45:

“The challenge is to distinguish between “using narrative evidence for the impermissible purpose of ‘confirm[ing] the truthfulness of the sworn allegation’” and “using narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility”.

It is quite possible that there may be someone who is able to understand that distinction, but many more people will claim, falsely, to understand it. It is a distinction that has been dropped in New Zealand, where the law of evidence was recently reformed: Evidence Act 2006.

Under this reformed law, a witness’s out of court statements are not hearsay, and prior consistent statements are, in the limited circumstances in which they are admissible, evidence for the truth of their contents: s 35

In the USA (my thanks to Peter Tillers for this:) "Under the (US) Federal Rules of Evidence the default rule remains that out of court statements of testifying witnesses are hearsay. Under R 801(d)(1)(A) statements of testifying witness are "exempt" from the hearsay rule only if the statements were made under oath in certain proceedings. The other exemptions in subdivision (d) cover limited situations as well. This may not make sense but, for the moment, that's the law in the federal courts of the United States and in the courts of the most States of the United States. The Advisory Committee that drafted the Federal Rules of Evidence (in the late 1960s and early 1970s) proposed that all prior inconsistent statements of testifying witnesses be made exempt from the hearsay rule but Congress rejected this proposal by adding the words "and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition" to Rule 801(d)(1)(A). Even some prior consistent statements remain hearsay: some years back the US Supreme Court held that only those prior inconsistent statements that are offered to "rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive" are exempt from the hearsay rule and that prior consistent statements made after a motive for recent fabrication etc arose remain hearsay. See FRE 801(d)(1)(B). Moreover, even the Evidence Advisory Committee did not propose a blanket exemption for pretrial statements of testifying witness; as in current Rule 801, the remaining exemptions in Rule 801 pertain to (i) certain pretrial identifications and (ii) admissions (including vicarious admissions of various kinds) and statements of coconspirators. If these exemptions do not apply, the hearsay rule kicks in."

In Australia, where the uniform evidence provisions apply (Commonwealth, NSW, ACT, Tas, NI and soon, Vic), hearsay includes a witness’s out of court statements (eg, Evidence Act 1995 (C’th) s 59). However, as Jeremy Gans has reminded me, s 60 should render prior statements admissible as proof of their assertions; the High Court has complicated this a bit in Lee v R [1998] HCA 60, but broadly that’s it. In Queensland they are admissible for their truth too.

In the UK, pursuant to the Criminal Justice Act 2003, s 120(2), such prior statements are evidence of the truth of what they assert.


In 1991 the New Zealand Law Commission in Preliminary Paper No 15 Evidence Law: Hearsay, p 3 para 4 said of the distinction between using a prior statement as supporting credibility, and using it to determine what actually happened, “Explaining this to juries – and expecting them to follow the instruction – is one of the more difficult aspects of the hearsay rule.”

R v Dinardo illustrates that explaining the rule to judges – and expecting them to follow it - is difficult too.

Tainted by inadmissible evidence?

If a judge tells a jury to ignore certain prosecution evidence, does that mean the wrongly admitted evidence can’t be used as grounds for appeal against conviction?

In Young v The State (Trinidad and Tobago) [2008] UKPC 27 (6 May 2008) there was a confession and a dock identification, both being obstacles to acquittals on charges of kidnapping and robbery. However, in directing the jury, the judge told the jury to ignore the dock identification. That left the confession, which, after an unsuccessful voir dire, the accused in evidence to the jury said was made as a result of threats from the police and in any event was not true, and he called an alibi witness.

The Court of Appeal dismissed the appeal, holding that the direction to the jury to ignore the dock identification made the giving of that evidence a dead issue. The Privy Council disagreed with that approach: it was necessary carefully to consider the way the jury might address the reliability of the confession. It was possible, at least in theory (but not, as it turned out, here), that the effect of the dock identification, even if it was ignored as one route to conviction, might influence the assessment of the reliability of the confession.

In this case, the Board held that the judge’s warning to the jury was sufficient to prevent that possible misuse of the evidence. This was not a situation where a Turnbull direction would have been appropriate as it would have been “confusing and potentially misleading” (para 20). The accused had not been deprived of a fair trial.

The Board cited, inter alia, Pipersburgh v R (Belize) (blogged here 26 February 2008), but did not cite Edwards v R (Jamaica) (blogged here 26 April 2006) in which strong comments against dock identification had been made. The position seems to be (para 17 of Young):

“…The trial judge must give sufficient warnings about the dangers of identification without a parade and the potential advantage of an inconclusive parade to a defendant, and direct the jury with care about the weakness of a dock identification. Much may depend on the circumstances of the case, the other evidence given and the run of the trial, so that it is not possible to lay down a universal direction applicable to all cases.”

Gymnasium improprieties

Another case that got diverted to the irrelevant question of when the police can use sniffer dogs is R v AM [2008] SCC 19 (25 April 2008), in which the Court’s decision released the same day, R v Kang-Brown (see last blog), was applied.

Police officers carried out a search of a school with the permission of the headmaster who had given them a long-standing invitation to do so. There were no reasonable grounds to believe that drugs would be found on this particular day. The students were told by the headmaster to remain in their classrooms during the search. Using a sniffer dog called Chief, bags in the gymnasium were examined and Chief indicated that there were drugs in a particular backpack.

The admissibility of the evidence - variously described as 10 bags of marijuana (para22), 5 bags (para 109) or several bags (para 154), allegedly in possession for trafficking, and about 10 magic mushrooms, the subject of an allegation of possession simpliciter) – was determined by balancing various policy matters. These do not need to be discussed here, although they are of great public interest. It was held, in each of the courts in which this case was considered, that the evidence was inadmissible.

On the misconduct side of the balance, the only relevant point could be the absence of grounds for the search until the dog indicated the presence of the drugs. There is really no other impropriety: the police were on the premises at the invitation of the occupier who was undoubtedly in loco parentis, during school hours, in relation to the pupil whose bag was searched. There is no need for grounds to exist when a search is carried out by consent, so, on this view, there was no misconduct at all.

So, why did the SCC uphold the exclusion of the evidence? By finding that the Charter rights of every student in the school had been violated (para 15). And,

“62 The backpacks from which the odour emanated here belonged to various members of the student body including the accused. As with briefcases, purses and suitcases, backpacks are the repository of much that is personal, particularly for people who lead itinerant lifestyles during the day as in the case of students and travellers. No doubt ordinary businessmen and businesswomen riding along on public transit or going up and down on elevators in office towers would be outraged at any suggestion that the contents of their briefcases could randomly be inspected by the police without “reasonable suspicion” of illegality. Because of their role in the lives of students, backpacks objectively command a measure of privacy.

“63 As the accused did not testify, the question of whether or not he had a subjective expectation of privacy in his backpack must be inferred from the circumstances. While teenagers may have little expectation of privacy from the searching eyes and fingers of their parents, I think it obvious that they expect the contents of their backpacks not to be open to the random and speculative scrutiny of the police. This expectation is a reasonable one that society should support.”

These remarks are controversial, and they contrast with those of the dissenters, Deschamps and Rothstein JJ at 119, 128 – 140. The difference reflects how rights arguments can become too abstract to remain in touch with societal needs.

This is not to say that exclusion of different things found would always follow in cases that were, in other respects, similar. As Binnie J (delivering the judgment of himself and McLachlin CJ) observed at 37, the seriousness of the detected offending is a relevant consideration. Apparently, in this case, the risk posed to other pupils, and the likely consequences of detection to the offender, did not outweigh the harm that would be caused to the pupil by breach of what was held to be his privacy right in respect to the contents of his backpack.

Opinions will vary about whether the Court has successfully “bridged the gap between law and society” (as Aharon Barak puts the judicial role in “The Judge in a Democracy” (2006)) or whether it has increased that gap.

What a cute doggie!

In R v Kang-Brown [2008] SCC 18 (25 April 2008) the accused got off a bus and his behaviour caused an undercover police officer to suspect that he might have drugs in a bag he was carrying. There were no reasonable grounds to search him. The officer got him into conversation, then identified himself and asked if he would consent to a search of the bag. An initial appearance of consent changed when the officer went to reach into the bag, and Mr Kang-Brown pulled the bag away. The officer, as a result of this withdrawal of consent, called over a dog handler, and the dog indicated the presence of drugs in the bag. Seventeen ounces (0.476 kg) of cocaine was in the bag, and Mr Kang-Brown was charged with possession of it for trafficking.

Of course, one can summarise the facts of a case in various ways. There is a risk in casting them in the wrong light and departing from the findings in the court where they were determined (see per Bastarache J, dissenting at 202).

But the essentials are that there were no sufficient grounds for a lawful search at the time the decision was made to call the dog handler.

Some of the Judges in the Supreme Court of Canada wanted to change the law so that the grounds for a search in these circumstances would more easily exist. This was because the focus of the case was seen as the use of the sniffer dog (whose name is Chevy).

It is not inevitable that that should have been the focus of the case. There were elements of illegality to the search before the dog was involved: the absence of grounds and the (albeit brief) detention while the dog was brought over and put to work. In terms of the right not to be subjected to unreasonable search, this did amount to a breach. One would expect that to bring into play the balancing exercise necessary to determine the admissibility of the evidence. Surprisingly, the evidence of this relatively (compared to the breach of rights) serious offence was excluded by the majority McLachlin CJ, Binnie, LeBel, Fish, Abella and Charron JJ.

It is no surprise, given the nature of law, that this mundane incident, with its trivial breach of rights, was worked up into a huge legal controversy about the use of sniffer dogs in public places. The focus became the common law legality of search by sniffer dogs: should the Court decide this before Parliament does, and, if so, what grounds would make such searches lawful? Plainly, reasonable grounds to believe would be too high, as the use of the dog would be rendered superfluous and the search by the enforcement officer could proceed. Mere suspicion may seem too low, once one has decided (as all Judges here did) that the dog’s action in sniffing does amount to a search, although Bastarache J was prepared to come close to this with his proposal of a generalised suspicion as sufficient grounds. The solution, reasonable suspicion, was favoured by McLachlin CJ, Binnie, Deschamps and Rothstein JJ. This did not appeal to the other four judges (LeBel, giving the reasons of himself and Fish, Abella and Charron JJ), who did not think it appropriate to downgrade the reasonable and probable cause requirement (para 16).

The difficulties arise once one says that the use of the dog was a search. On the facts here it clearly was, because it was focused on the contents of a particular bag that, in effect, the police had seized. But it does not follow that routine sniffing around people at a transport hub amounts to search. Most people would think it was rather cute.

Propensity evidence: admissibility and Bayes Theorem

The High Court of Australia has given detailed consideration to how evidence of an accused’s propensity should be handled, in three jointly heard appeals: HML v The Queen; SB v The Queen and OAE v The Queen [2008] HCA 16 (24 April 2008).

The seven Judges delivered seven judgments. Unfortunately, and a trace of regret about this is evident in the remarks of Kirby J at para 82, the issue of real general interest was not unanimously decided because of the different approaches taken. This issue is, what role, if any, the standard of proof beyond reasonable doubt has in connection with proof of the alleged propensity.

The admissibility rule in Australia
I say that was the issue of general interest, because much of the judgment is concerned with the nearly-extinct rule in Pfennig v The Queen [1995] HCA 7, (1995) 182 CLR 461. This is, in essence, a rule about the probative value that propensity evidence must have in the context of a particular case before it can be ruled admissible. Only if the judge finds that, assuming the propensity evidence is accepted as true, and assuming the other prosecution evidence in the case is also accepted, the effect of the propensity evidence would be to exclude any reasonable doubt that would otherwise exist about the accused’s guilt, can the evidence be said to have sufficient probative value to be admitted. This affects the more generally applicable requirement that evidence must be excluded if its probative value is outweighed by its illegitimately prejudicial effect, by replacing the discretion with a rule (Gleeson CJ at 15). Hayne J discussed the application of this rule at 112 – 118. Gummow J and Kirby J agreed (41, 51).

Standard of proof of propensity evidence
It is often claimed that the only thing that needs to be proved beyond reasonable doubt in a criminal trial is the guilt of the accused. Each element of the offence must be proved beyond reasonable doubt. Policy has supported an evidential rule that the voluntariness of a confession must be proved beyond reasonable doubt. It is by no means clear that evidence of the accused’s propensity has to be proved beyond reasonable doubt.

Propensity evidence is, after all, a form of circumstantial evidence, and circumstantial evidence does not carry a standard of proof. But the view favoured by Kirby J is that propensity must be proved beyond reasonable doubt. He summarised the approaches of the other members:

“82 … Heydon J considers that it is unnecessary to decide whether the criminal standard of proof has a wider application in cases such as the present, because whatever the case, the judges' summing up in each of the three appeals included a direction incorporating the criminal standard[Reasons of Heydon J at [339], [376], [395]-[396]]. This is so, notwithstanding that the ostensible purpose of these appeals was to settle that issue with an authoritative statement by this Court. Crennan J endorses a principle similar to that stated by Gleeson CJ[Reasons of Crennan J at [477]], although she ultimately relies on the conclusion of Heydon J that directions incorporating the criminal standard were in fact given in the trial of OAE[Reasons of Crennan J at [483]]. It is apparent from the analysis of Kiefel J[See reasons of Kiefel J at [512]-[513]] that her Honour considers that, because the relevant evidence was relied upon for a purpose other than "disclosing [OAE's] sexual interest" in the complainant[Reasons of Kiefel J at [517]], a direction as to the criminal standard of proof was not required.”

Gleeson CJ held at 31 that the standard of proof beyond reasonable doubt applies only to indispensable facts, and Crennan J at 477 agreed. Hayne J held at 196 that where propensity evidence is admitted as an essential step in the reasoning (and Pfennig indicates that, since it is the admissible propensity evidence that removes any reasonable doubt about the accused’s guilt, it is essential) it must be proved beyond reasonable doubt.

Kirby J held that propensity evidence must be proved beyond reasonable doubt:

“[83] I support the conclusion of Hayne J. It is necessary and desirable for this Court to resolve the issue concerning directions to be given on the standard of proof applicable to evidence of "uncharged acts" for the guidance of trial judges and intermediate courts still observing the common law in this respect. I would hold that wherever such evidence has been admitted under the Pfennig test and is propounded as relevant to a step in reasoning towards the accused's guilt of an offence charged, the jury must be told that they are to be satisfied beyond reasonable doubt that such evidence has been proved before they reason that the accused is guilty on the basis of it[Reasons of Hayne J at [132], [244]]. This is the essential quid pro quo for allowing such evidence to be placed before the jury at all. It is mandated by considerations of law but also of basic fairness, considered in the context of an accusatorial trial that still observes rules of particularity as to the offences charged.”

The Australian approach to propensity evidence was devised to avoid a perceived risk that judicial directions on the proper use of such evidence will not necessarily be effective. Hayne J put it this way at 116:

“… Judicial directions about use of such evidence have not hitherto been seen, and should not now be seen, as solving that problem. The possible uses to which evidence of other acts (which does not meet the Pfennig test) may be put are inevitably so intertwined that they cannot be sufficiently disentangled to give useful instructions to the jury. And even if the various uses of such evidence could be disentangled, that would leave unaddressed and unanswered the further difficulty that the jury may attach more significance to the evidence of other acts than they should. That is why the solution that has been adopted for so long by the common law, reflected in this Court's decision in Pfennig, is to limit the circumstances in which evidence of other discreditable acts of an accused will be received in evidence.”

He summarised the Court’s position on the standard of proof of propensity evidence that demonstrated that the accused had a sexual interest in the respective complainant in these appeals:

“[247] …It is important to recognise, however, that at least a majority of the Court[Gummow J at [41], Kirby J at [63], Kiefel J at [506] and these reasons at [132]] is of the opinion that "[i]n the ordinary course a jury would be instructed by the trial judge that they must only find that the accused has a sexual interest in the complainant if it is proved beyond reasonable doubt"….”

Logical reasoning
Since the choice of the standard beyond reasonable doubt for propensity evidence is a policy choice, it should not be criticised for being illogical. But it is illogical.

It imposes on the jury an “if and only if, then …” form of reasoning: if and only if the propensity evidence is true, then the accused is guilty on the present charge. It is more appropriate to apply a logic of conditional probabilities to this situation (and, indeed, to most decisions a jury has to make). In the absence of concessions or admissions, certainties don’t arise in trials. Even fingerprint evidence is given in the form of opinion, and testimony involving any form of measurement inevitably involves a range of error. The truth of testimony is appropriately thought of as a probability. Evidence of propensity will be assessed by a juror as being more or less likely to be true, that is, as having a probability of being true.

The majority approach in HML v The Queen, requiring this probability to equate with beyond reasonable doubt, is too restrictive. Conditional probability reasoning, as expressed in Bayes’ Theorem, involves considering the likelihood of getting the assessed probability of the propensity, given the accused is guilty on the present charge, compared to the likelihood of getting that assessed probability of the propensity, given that the accused is innocent on the present charge.

I have discussed the application of Bayes’ Theorem to propensity evidence in a draft paper (a perpetual draft so that it can be updated), available on this site here.

This question of whether some or any facts need to be proved beyond reasonable doubt before a verdict of guilty can be returned has given rise to controversy: see for example Chamberlain v The Queen (No 2) (1984) 153 CLR 521 (HCA), Shepherd v The Queen (1990) 170 CLR 573 (HCA), Thomas v R [1972] NZLR 34 (CA), R v Puttick (1985) 1 CRNZ 644 (CA), R v Holtz [2003] 1 NZLR 667; (2002) 20 CRNZ 14 (CA), R v Morin (1988) 44 CCC (3d) 193, and R v MacKenzie (1993) 78 CCC (3d) 193 (SCC).

A point that has led to confusion is the need for a juror to be sure (beyond reasonable doubt) of what fact is accepted; this is not to say that the fact itself establishes anything beyond reasonable doubt. For example, a witness may say that on examination of a bullet there is an 80% chance that it was fired from a specified gun. To require the juror to be sure, beyond reasonable doubt, that the result “80%” is correct, is not the same as requiring the juror to be sure, beyond reasonable doubt, that the bullet came from that gun. Once the testimony has been accepted, the juror can assess the likelihood of the result “80%” being obtained, given that the accused is guilty, compared with the likelihood of getting the “80%” result, given that the accused is innocent.

It is better, when trying to grapple with the role of proof beyond reasonable doubt, to think of the reasoning as following the logic of conditional probabilities, rather than to use the traditional metaphors of ropes and chains of reasoning. This is because they are too vague. In HML v The Queen the rope metaphor was not used by any of the Judges, but chains of reasoning were spoken of.

Update: On 26 November 2018 the New Zealand Supreme Court refused leave to appeal on a challenge to the absence of a requirement for proof of propensity to the beyond reasonable doubt standard, holding that, despite the different approaches in the United Kingdom and Australia, the law in New Zealand had taken a different course and was now settled: Grooby v R [2018] NZSC 114.

Criminal and civil self-defence

Some comments on the difference between self-defence in criminal and civil law are worth noting here. They occur in a civil action in battery: Ashley v Chief Constable of Sussex Police [2008] UKHL 25 (23 April 2008).

The relevant issue was whether in civil law it is necessary that a belief in the need to use any force in self-defence has to be a reasonable belief. Broadly, in criminal law reasonableness on this point is not necessary, it being sufficient that the belief was honestly held. In criminal law (again, generally) reasonableness does have a role in self-defence, by limiting the amount of force permitted to reasonable force. The move to subjectivity on the element of belief came, as Lord Neuberger notes at para 88, as a result of the work of the Criminal Law Revision Committee, and, while having some persuasive value outside criminal law, is not necessarily applicable.

Lord Bingham observer, para 3, that the ends of justice differ in criminal trials and civil actions. This was elaborated by Lord Scott at 17 – 18:

“… One of the main functions of the criminal law is to identify, and provide punitive sanctions for, behaviour that is categorised as criminal because it is damaging to the good order of society. It is fundamental to criminal law and procedure that everyone charged with criminal behaviour should be presumed innocent until proven guilty and that, as a general rule, no one should be punished for a crime that he or she did not intend to commit or be punished for the consequences of an honest mistake. There are of course exceptions to these principles but they explain, in my opinion, why a person who honestly believes that he is in danger of an imminent deadly attack and responds violently in order to protect himself from that attack should be able to plead self-defence as an answer to a criminal charge of assault, or indeed murder, whether or not he had been mistaken in his belief and whether or not his mistake had been, objectively speaking, a reasonable one for him to have made. As has often been observed, however, the greater the unreasonableness of the belief the more unlikely it may be that the belief was honestly held.

“[18] The function of the civil law of tort is different. Its main function is to identify and protect the rights that every person is entitled to assert against, and require to be respected by, others. The rights of one person, however, often run counter to the rights of others and the civil law, in particular the law of tort, must then strike a balance between the conflicting rights. Thus, for instance, the right of freedom of expression may conflict with the right of others not to be defamed. The rules and principles of the tort of defamation must strike the balance. The right not to be physically harmed by the actions of another may conflict with the rights of other people to engage in activities involving the possibility of accidentally causing harm. The balance between these conflicting rights must be struck by the rules and principles of the tort of negligence. As to assault and battery and self-defence, every person has the right in principle not to be subjected to physical harm by the intentional actions of another person. But every person has the right also to protect himself by using reasonable force to repel an attack or to prevent an imminent attack. The rules and principles defining what does constitute legitimate self-defence must strike the balance between these conflicting rights. The balance struck is serving a quite different purpose from that served by the criminal law when answering the question whether the infliction of physical injury on another in consequence of a mistaken belief by the assailant of a need for self-defence should be categorised as a criminal offence and attract penal sanctions. To hold, in a civil case, that a mistaken and unreasonably held belief by A that he was about to be attacked by B justified a pre-emptive attack in believed self-defence by A on B would, in my opinion, constitute a wholly unacceptable striking of the balance. It is one thing to say that if A's mistaken belief was honestly held he should not be punished by the criminal law. It would be quite another to say that A's unreasonably held mistaken belief would be sufficient to justify the law in setting aside B's right not to be subjected to physical violence by A. I would have no hesitation whatever in holding that for civil law purposes an excuse of self-defence based on non existent facts that are honestly but unreasonably believed to exist must fail….”

There was no disagreement about this. Lord Carswell added, at 76:

“…The criminal law has moved in recent years in the direction of emphasising individual responsibility. In pursuance of this trend it has been held in different areas of the criminal law that it is the subjective personal knowledge or intention of the accused person which has to be established: see, e.g., R v Morgan [1976] AC 182, R v Kimber [1983] 1 WLR 1118. So in the case of self-defence it has been held that that if a defendant is labouring under an honest mistake, even if it is regarded as unreasonable, the defence is open to him: R v Williams (Gladstone) [1987] 3 All ER 411. The function of the civil law is quite distinct. It is to provide a framework for compensation for wrongs which holds the balance fairly between the conflicting rights and interests of different people. I agree that that aim is best met by holding that for the defence of self-defence to succeed in civil law the defendant must establish that he honestly believed in the existence of facts which might afford him that defence and that that belief was based upon reasonable grounds. …”

Another aspect of this case is the decision whether to stay the civil action. The details need not be considered here, but it was a policy decision, and as such it is notable that, although there was some disagreement over this issue, both sides found support in dicta of Cooke P (as he then was, subsequently Lord Cooke) in Re Chase [1989] 1 NZLR 325 (CA).

Strength, rights, remedies

Sometimes, rights may be strong, but remedies weak.

Virginia v Moore [2008] USSC 06-1082 (23 April 2008) illustrates strong State rights, weak State remedies, and weak Constitutional rights.

In the circumstances that were held to exist, State law required a police officer to issue a summons, and not to arrest, Mr “Chubs” Moore, who had been apprehended driving while his licence was suspended. Instead, he was arrested for that offence. After a little delay, over which he did not complain in this appeal, he was searched and 16 g crack cocaine was found in his possession. He was charged with possession of the drug with intent to distribute it, and eventually he was sentenced to 5 years’ imprisonment. The Virginia Supreme Court held that since the arrest was unlawful, the search violated the Fourth Amendment, and the evidence should have been ruled inadmissible.

To avoid the unpalatable conclusion that the evidence had to be excluded, the US Supreme Court applied a line of its cases and held that, notwithstanding the illegality of the arrest in Virginia State law, the arrest was constitutionally reasonable.

The reasoning here is that, while the State may give its citizens protections greater than those required by the Constitution, that does not affect the interpretation of the Fourth Amendment. Scalia J (Roberts CJ, Stevens, Kennedy, Souter, Thomas, Breyer and Alito JJ joining – Ginsburg J concurred separately) put it this way:

“In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable….e.g., Devenpeck v. Alford, 543 U. S. 146, 152 (2004); Gerstein v. Pugh, 420 U. S. 103, 111 (1975); Brinegar v. United States, 338 U. S. 160, 164, 170, 175–176 (1949).

“ Our decisions counsel against changing this calculus when a State chooses to protect privacy beyond the level that the Fourth Amendment requires. We have treated additional protections exclusively as matters of state law. In Cooper v. California, 386 U. S. 58 (1967), we reversed a state court that had held the search of a seized vehicle to be in violation of the Fourth Amendment because state law did not explicitly authorize the search. We concluded that whether state law authorized the search was irrelevant. States, we said, remained free “to impose higher standards on searches and seizures than required by the Federal Constitution,” id., at 62, but regardless of state rules, police could search a lawfully seized vehicle as a matter of federal constitutional law.”

The discussion has thus shifted from the lawfulness of the arrest (unlawful in State law, but lawful in Federal law) to the reasonableness of the search. In Virginia State law, improperly obtained evidence is, according to Scalia J, not usually excluded, which is why Mr Moore was convicted. He was arguing that the generous protections given to individuals by Virginia’s law should be accompanied, not by a balancing exercise, but by a “bright line” rule excluding the evidence.

Scalia J held that the search was not unconstitutional, and added:

“If we concluded otherwise, we would often frustrate rather than further state policy. Virginia chooses to protect individual privacy and dignity more than the Fourth Amendment requires, but it also chooses not to attach to violations of its arrest rules the potent remedies that federal courts have applied to Fourth Amendment violations. Virginia does not, for example, ordinarily exclude from criminal trials evidence obtained in violation of its statutes. … Moore would allow Virginia to accord enhanced protection against arrest only on pain of accompanying that protection with federal remedies for Fourth Amendment violations, which often include the exclusionary rule. States unwilling to lose control over the remedy would have to abandon restrictions on arrest altogether. This is an odd consequence of a provision designed to protect against searches and seizures.”

So, Mr Moore’s argument for strong remedies for strong rights was defeated by the Court’s preference for strong remedies for weak rights.

Spot the difference

The actual and potential harm caused by an offence is a significant consideration in sentencing. It would be natural to expect that drug offending carries various levels of harm, and that the nature of the drug and its quantity are relevant to assessing the harm caused by a particular offence. However, in the absence of specific legislative guidance, it may be difficult to convince a court that an offence in respect of one drug is less serious than the same offence in respect of another drug.

In Adams v R [2008] HCA 15 (23 April 2008) this argument was presented but the Court held that there was an insufficient foundation, legal or factual, for it to be considered.

Gleeson CJ, Hayne, Crennan and Kiefel JJ jointly, after a slightly inaccurate summary in para 3 (inaccurate in that the contrast between the two legislative schemes mentioned there is not as great as suggested because harm-based arguments are available under each, and the classification of MDMA in New Zealand is not as the Court was advised), observed that there are difficulties in contending that offending involving one drug in a particular category poses more or less harm than the same offending involving another drug in that category:

“[9] The appellant's entire argument is based on the factual assertion that ‘MDMA ... is less harmful to users and to society than heroin.’ The quantities in contemplation for the purposes of that comparison are unspecified. How much MDMA is being compared with how much heroin? Other aspects of the meaning of the proposition are equally unclear. Harm to users and society is a protean concept. Counsel had understandable difficulty explaining exactly what the proposition means, let alone demonstrating, by evidence available to the sentencing judge or matters of which a court could take judicial notice, that it was true. What kinds of user, and what kinds of harm to society, are under consideration? The social evils of trading in illicit drugs extend far beyond the physical consequences to individual consumers. As the Victorian Court of Appeal pointed out in R v Pidoto and O'Dea [2006] VSCA 185; (2006) 14 VR 269 at 282 [59], ‘questions arise as to whether the perniciousness of a substance is to be assessed by reference to the potential consequences of its ingestion for the user, or its effect upon the user's behaviour and social interactions, or the overall social and economic costs to the community.’ Furthermore, in relation to some of these matters, scientific knowledge changes, and opinions differ, over time. Generalisations which seek to differentiate between the evils of the illegal trade in heroin and MDMA are to be approached with caution, and in the present case are not sustained by evidence, or material of which judicial notice can be taken.”

In New Zealand there has been some recognition of differences between drugs of the same class. In Albon v R 26/6/96, CA544/95 a scientific report was used to compare the potency of MDA with other class A controlled drugs, and in R v O’Donnell 1/8/96, CA101/96, a distinction was recognised between drugs of class A, according to whether they were addictive or non-addictive. But in R v Stanaway [1997] 3 NZLR 129; (1997) 15 CRNZ 32 (CA) it was held that the criminality must be assessed in the circumstances of each particular case and that potential for addiction may not be the predominant measure of perniciousness in the light of physical and psychological effects and other social considerations. In R v Arthur [2005] 3 NZLR 739; (2005) 21 CRNZ 453 (CA), the Court recognised, at para 13, that the distinction between the hallucinogenic and the non-hallucinogenic Class A drugs may be relevant, and for the purposes of the case recognised that methamphetamine was non-hallucinogenic.

The point made by the High Court of Australia in Adams v R is that submissions of this nature must be supported by evidence, before the court will even begin to grapple with how it should make distinctions between similar offending in respect of different drugs.

And then there were ten ...

Again the New Zealand Supreme Court has worked its way around the statutory prohibition on reviewing a judge’s exercise of discretion to continue a trial with only 10 jurors: Wong v R [2008] NZSC 29 (18 April 2008). The earlier occasion on which the Court did this was Rajamani v R (blogged here 24 August 2007).

The statutory prohibition on appellate review of the exercise of this discretion is in s 374(8) of the Crimes Act 1961, and the discretion to continue a trial with 10 jurors is in s 374(4A):

“(4A) The Court must not proceed with fewer than 11 jurors except in the following cases:
(a) If the prosecutor and the accused consent:
(b) If the Court considers that, because of exceptional circumstances relating to the trial (including, without limitation, the length or expected length of the trial), and having regard to the interests of justice, the Court should proceed with fewer than 11 jurors; and in that case—
(i) The Court may proceed with 10 jurors whether or not the prosecutor and the accused consent:
(ii) The Court may proceed with fewer than 10 jurors only if the prosecutor and the accused consent.
…

“(8) No Court may review the exercise of any discretion under this section.”

Repeating the approach in Rajamani, namely distinguishing between the “assessment” of whether the facts amounted to exceptional circumstances, a matter that could be reviewed on appeal, from the judge’s “consideration” that the trial should continue with 10 jurors, a discretion that could not be reviewed on appeal because of subsection (4A)(8), the Court held that exceptional circumstances did not exist here.

This was a 4 week trial, a length not out of the ordinary, although the retrial would be shorter because certain defence applications had been resolved, interpreters were needed, there were 41 witnesses (30 giving oral evidence), there were no complainants to consider (this being a drug trial), there was no real likelihood of witnesses being unavailable, and it would not be particularly difficult for the system to accommodate a retrial.

No one will say so, but this is an example of the Court rendering ineffective an unjust legislative provision. The Court has no power to declare a statute invalid, or to refuse to apply a statute, and there is not even a statutory power to declare that a statute is inconsistent with the Bill of Rights, although such a power is asserted (Hansen v R illustrates this, blogged here 20 February 2007). Section 374(8) could plainly be unjust, as a decision to continue a trial with 10 jurors without the consent of the defence would, if wrong, be a substantial miscarriage of justice; it is essential that a wrongful continuation of such a trial be able to be corrected on appeal. Therefore the Court interprets the wide terms of subsection (8) narrowly, by limiting “any discretion” to the decision that is made once exceptional circumstances exist.

This approach to the phrase “exceptional circumstances relating to the trial” in subsection (4A)(b), treating it as an assessment of facts, not as a discretion, is also applicable to the other phrase in (b), “the interests of justice”. If the judge incorrectly assesses (or, in the terms of the subsection, has regard to) the interests of justice, that too should be able to be corrected on appeal. Since the position that the court “considers” to arise from its assessments, in (4A), will be consistent with those assessments, there is really nothing in (4A) that cannot be reviewed on appeal.

It could be said that there is a residual discretion in the appellate court to intervene wherever necessary to prevent a substantial miscarriage of justice. This is how it was put in R v Hookway [2007] NZCA 567 at para 136. But this jurisdictional approach is less powerful, in this context, than the interpretative one, because it is at the mercy of what the statute leaves as “residual”. That itself is a matter of interpretation.

Straddling the point

By the slimmest of margins the Supreme Court of Canada has just avoided making an awful mistake.

Evidence can be admissible without it having to support only one side of a case. This elementary observation is plainly true. Many items of prosecution evidence may be consistent with both the guilt and the innocence of the accused, and only when the whole of its evidence is adduced may the prosecutor be able to say that this proves guilt beyond reasonable doubt.

It is often possible to express the probative value of an item of evidence as a probability, or a likelihood, of the proposition it is advanced to support. This can also be termed the weight of the evidence.

In Gibson v R [2008] SCC 16 (17 April 2008) the accused was charged with driving with excess alcohol in his system, and the issue was whether evidence that his real alcohol level could have been somewhere in a range extending from below, to above, the statutory limit, was admissible. The statutory scheme provided a presumption that the level was as indicated in a test result, but this was rebuttable by evidence that tended to show that the driver’s level was below the limit.

The sort of evidence the defence wanted to rely on was called “straddle evidence”, because it showed a range of possible levels that straddled the limit.

It should have been obvious that this evidence was no different from any other evidence that has a greater or lesser tendency to support the defence in its aim of raising a reasonable doubt. Plainly, where the evidence only has a slight tendency to support an inference of innocence, and is more a basis for an inference of guilt, it will weigh in favour of guilt. In such a case, it is likely to be insufficiently relevant to a defence proposition to be admissible as defence evidence (while being admissible – if the prosecution had obtained it, which of course here they hadn’t – for the prosecution).

In Gibson the defence expert indicated a range between 40 and 105 (the limit is 80). The majority held that this evidence was admissible: McLachlin CJ, LeBel and Fish JJ jointly, and Binnie and Deschamps JJ jointly. However, although admissible, these Judges differed on whether it was insufficient to raise a reasonable doubt. Binnie and Deschamps JJ held that it was sufficient to do so as the “prevailing direction” of the range was under the limit. But the other three Judges who agreed on the admissibility point held that the range of values and the extent to which the range exceeded the limit indicated that the evidence was insufficient to raise a reasonable doubt.

The awful mistake was made by the minority, Bastarache, Abella, Charron and Rothstein JJ (jointly, delivered by Charron J). They held that instead of being evidence in support of a reasonable doubt, straddle evidence was an attack on the presumption itself, and was therefore inadmissible. On this view, straddle evidence only tended to show that the accused fell into the range of people targeted by the legislation (para 33), and that it did not tend to show that the driver in question was not in this range. In order to raise a reasonable doubt, the driver could only adduce evidence of his actual alcohol consumption.

It is difficult to see why evidence that supports an inference of innocence (to the extend sufficient to raise a reasonable doubt) should be seen as an attack on the rebuttable presumption itself. The reasons are given in para 32 (and see also 19 – 20), and essentially come down to saying that Parliament must have taken into account the possible range of actual alcohol levels in drivers’ systems when it established the limit and the rebuttable presumption, and so the presumption could only be rebutted by evidence other than that based on metabolic rates of alcohol elimination in the population at large.

That, however, is to overlook the point that the evidence concerning the population at large must relate to the facts of the case: to the driver and the amount of his actual consumption (see McLachlin CJ, LeBel and Fish JJ at 58). Otherwise, the expert evidence has no weight. The minority’s mistake was to overlook the fact that it would be impossible for the defence to rebut the presumption by evidence of the driver’s consumption, without also adducing evidence of the level of alcohol that one would expect to find, and that could only be based on evidence from the population a large which would inevitably involve metabolism.

Imagine that the defence called evidence that satisfied the minority’s criterion: that the driver’s level fell within a range that was entirely below the limit. The prosecution might then seek to rebut this by calling evidence that his range straddled the limit. Why should straddling evidence be allowed to prove the driver was over, but not under, the limit? The alternative, that neither side should have recourse to straddling evidence, would be untenable because it would prevent the prosecution contesting the defence evidence.

But that’s not all. None of the judgments refer to the correct way in which the proposed evidence would be given. In accordance with Bayes’ Theorem, the expert should present the findings as a likelihood ratio: the probability of getting the results, given that the defendant was guilty, divided by the probability of getting the results, given that he was not guilty. The findings concerning straddling are only part of the data behind the result that the expert should report to the court. The minority’s restrictive approach would limit expert testimony to occasions where the testing indicated a very low posterior ratio of probability of guilt to probability of innocence, and this would be inconsistent with the presumption of innocence and the requirement that the defence only raise a reasonable doubt.

As an alternative to the rebuttable presumption, Canada may find more attractive the approach adopted in jurisdictions where there is a conclusive presumption. In para 76 LeBel J mentioned the issue of limitation on the presumption of innocence, but it is clear that such limitation would be demonstrably justified in a free and democratic society. That is the test in New Zealand under s 5 of the Bill of Rights, and we have a conclusive presumption in this context: s 77 Land Transport Act 1998; no one has as yet argued that this is unjustified.

And on a completely different matter, dicta in this case (para 50 – 51) illustrate a point that has been of some interest in another context: a requirement that the defence “show” something, in order to rebut a presumption, is not the same as a requirement that the defence “prove” that thing. The defence can “show” the thing (innocence) by raising a reasonable doubt, and this is not the same as “proving” it. See Hansen v R (blogged here 20 February 2007).

The fairness of inequality

Should the defence always be given the same access as the prosecution has to the criminal histories of people on the jury panel?

In R v King and Stevens [2008] NZCA 79 (10 April 2008) it was held that it was lawful for the police to access the criminal records of potential jurors, and that it was lawful for this information to be passed to prosecuting counsel. It was further held that where fair trial concerns warrant it, such information must be disclosed to the defence. One member of the Court, Robertson J, held that the defence should always be given this information, but the majority (William Young P and Chambers J) took a more restrictive approach, giving as examples of where disclosure to the defence would be appropriate (para 125):

“(b) Counsel for an accused serving police officer may wish to exclude any juror who may be thought to have an anti-police attitude. …

“(c) Counsel for a man accused of murdering a burglar and who is running self-defence and provocation may prefer a jury which does not include too many convicted burglars.”

The general requirement as formulated by the majority was (para 129):

“…disclosure will be appropriate (and should be directed by the Judge if necessary) where a defendant can point to some likelihood that, in the context of the particular case, jurors with criminal histories may have an adverse predisposition towards the defendant or the defence which is to be advanced.”

It is possible that prosecutors will be inclined to cite the specific instances mentioned in para 125 as if they were the only sorts of circumstances in which this general requirement applies, namely where the potential juror may be biased against the accused.

How, then, did the majority on this point justify inequality in automatic access to this information? After all, the Solicitor-General had, in argument, conceded that the defence should have the information automatically. The majority found this concession was over broad (para 123). They noted the difference between jury-vetting, which they saw as the exclusion of unfavourable jurors, and jury packing, the getting of a favourable jury. The crucial reasoning is at para 127:

“A requirement that criminal history information about potential jurors be automatically made available to the defence would equate the Crown purpose of seeking a jury which is free of those with non-disqualifying but perhaps still serious criminal histories with a defence desire (impractical of achievement though it may be) that a jury include people with such convictions. As far as we are aware, and leaving aside some obiter dicta in R v Sheffield Crown Court, Ex parte Brownlow [1980] QB 530 (CA), no Court has been prepared to proceed on that basis. Instead, courts in New Zealand (see Greening [1991] 1 NZLR 110 (Tipping J, HC), Watson CA384/99 8 May 2000 and Tukuafu [2003] 1 NZLR 659 (CA)), England and Wales (see Mason [1981] QB 881 (CA) and McCann (1990) 92 Cr App R 239 (CA)) and Australia (see Katsuno (1999) 199 CLR 40) have rejected the contention that there is anything inherently unfair in a defendant being tried by a jury where the Crown prosecutor has had access to previous conviction histories for the purpose of exercising rights of peremptory challenge (or the functionally equivalent right to direct potential jurors to stand by).”

This comes down to saying that it is OK for the Crown to want a jury that is not biased against it, but in practice it has not been thought OK for the defence to want a jury biased in its favour. Jury-vetting is acceptable, but jury stacking is not.

That may well be good policy, and the majority held that any change should be left to Parliament. They emphasised an important point made by Robertson J (para 119, referring to para 31): examination of the relevant legislative history shows that Parliament expressly rejected a ban on jury-vetting by the prosecution. This does not quite justify the majority position, however, because it is not to say that Parliament rejected defence access to the same information as was obtained by the prosecution from the criminal history database. Indeed, as all Judges noted (Robertson J at 89, William Young P and Chambers J at 116) the New Zealand Law Commission (Juries in Criminal Trials) has recommended that the defence should have automatic access to such information.

Should either side be allowed to vet, let alone try to stack? Peremptory challenges are not allowed in England and Wales (as both judgments note), but should they be abolished? While they are allowed, it seems wrong to impose traditional restraints on access to information when responsible defence counsel would, these days, run the prospective jurors’ names through Google (a point alluded to in para 98 of the joint judgment). Official coyness about disclosure of well deserved convictions seems quaint, especially as they must be disclosed in many situations where a person seeks a responsible position. Given that peremptory challenges are allowed, equal access to information about prospective jurors should ultimately be adopted.

Benign irrationality

Juries don’t give reasons, so why should judges?

The latest case on the proviso, the High Court’s decision in AK v Western Australia [2008] HCA 8 (26 March 2008), is another example of when an error at trial amounts to a “substantial” miscarriage of justice. Miscarriages of such magnitude cannot be cured on appeal by application of the proviso. In AK the trial had been by judge alone, and the judge had not given reasons for his verdict. Statute required that reasons be given. This failure was held, by a 3-2 majority, to be a substantial miscarriage of justice and a new trial was ordered.

Two majority judgments were delivered. Gummow and Hayne JJ jointly held that Weiss v R (blogged here 16 January 2006) and Wilde v R [1988] HCA 6 were not exhaustive of the situations that can give rise to a substantial miscarriage of justice. Here, the failure to give reasons for the verdict meant that the trial was not conducted according to law and that the miscarriage was therefore substantial (para 58). It was not to the point to ask whether the evidence supported the verdict.

This does not quite explain why the miscarriage was “substantial” as opposed to one that could be cured by the proviso if inspection of the evidence showed that the verdict was reasonable. Minor errors can mean that a trial was not according to law without it being necessary to quash the conviction. The other majority judgment, by Heydon J, went into the meaning of a substantial miscarriage in more detail.

The judgment of Heydon J is a forceful reminder of the advantages of trial by jury, and the resulting need to compensate for loss of those when trial is by judge alone. Footnote 75 is well worth a glance, for phrases in derogation of juries, eg many jurors are “unaccustomed to severe intellectual exercise or to protracted thought”. But juries bring a “benign irrationality” (para 97) to the proceedings. Quoting from Lord Devlin’s Trial by Jury (revised ed, 1966), Heydon J lists the five advantages of jury trials (para 93 – 97), and holds that it is necessary closely to observe the safeguards provided in relation to judge alone trials (para 98). The present case was one of extreme non-compliance with the requirement for reasons, which went to the root of the proceedings (para 109).

Within this framework, Heydon J mentions the power of juries to return perverse verdicts (para 97, and see blog entries for R v Wang 14 February 2005; R v Wanhalla 25 August 2006; R v Krieger 26 October 2006), the dangers in fact-finding by judges (para 101), the twin safeguards for the accused in the burden and standard of proof and the need for jury unanimity or a very substantial majority (para 102), the mental discipline imposed on the judge by the requirement for reasons (para 103 – 105 and 108), and the advantage that appellate courts have in ascertaining the appropriate inferences from the primary facts that have been determined by the judge in the context of the evidence that has been given (para 106, 107).

This approach to the question of how to identify a miscarriage that goes to the root of the proceedings takes us further than did the joint majority judgment, by saying that an example of this sort of miscarriage is one that, as here, prevents the appellate court from carrying out the protective function that is designed to compensate for the loss of the jury.

But is this case an example of that sort of miscarriage? The dissenting judgment of Gleeson CJ and Kiefel J acknowledges (para 17) that the appellant correctly pointed to the breach of the statutory requirement that the judge must give reasons for the verdict. Nevertheless, the magnitude of this error had to be assessed by its effect on the verdict. Here, the issue was narrow: who had committed the offences, the defendant or his brother? There was no evidence suggesting the brother was involved, and the judge’s finding that the offender was the defendant was supported by the objective circumstances (para 27). The absence of reasons was not an obstacle to application of the proviso here. So the dissenters were able to carry out the function of identifying the appropriate inference from the evidence that had been given, without being hampered by the absence of reasons for the verdict.

It is thus not necessarily persuasive to argue that an appellate court must have the judge’s reasons before it can carry out its role of compensating for the loss of a jury. Also questionable are the advantages that Lord Devlin attributed to juries. His prose was, of course, a fine example of the kind of eloquent rhetoric that now seems rather florid, and each of his propositions needs to be tested by experiment.

This is not to suggest that non-compliance with a statutory requirement to give reasons can be brushed aside. There has been a recent example of a seemingly technical error in procedure rendering a trial void (see blog on R v Clarke 7 February 2008 but contrast with Ayles v R 29 February 2008). The upholding of formal constraints on the exercise of power has its place, but it is fair to ask whether every failure to give reasons will inevitably amount to a substantial miscarriage of justice.

Truth and consistency

R v Stirling [2008] SCC 10 (14 March 2008) is an illustration of the common law’s treatment of the admissibility of a witness’s prior consistent statement. The important point has always been that such statements are not admissible as proof of their contents, but only as proof of consistency, and as such they go to the weight that the fact-finder may give to the witness’s testimony.

Central to this appeal is the idea that if the judge had used the prior consistent statement as evidence of its truth, then he would have made a serious error:

“[7] … it is impermissible to assume that because a witness has made the same statement in the past, he or she is more likely to be telling the truth, and any admitted prior consistent statements should not be assessed for the truth of their contents. As was noted in R. v. Divitaris (2004), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28, “a concocted statement, repeated on more than one occasion, remains concocted”…”

Further, para 12, the prior statement goes to the witness’s credibility in a general sense; it would be artificial to try to separate out the witness’s credibility on the topic(s) covered in the prior statement from the witness’s credibility generally.

Personally, I wouldn’t have thought that the distinction was that difficult, but Bastarache J, delivering the judgment of the Court, said that such a separation would be “impractical and artificial” (para 12).

It could also be said that the distinction between use of the prior statement for the fact it was made, as opposed to as proof of the truth of what it asserts, is impractical and artificial. It must be acknowledged that this distinction is well established at common law, and (broadly speaking) it applies to prior statements whether they are consistent or inconsistent with the witness’s testimony. It has also, I must admit, been shown to be workable in practice, although arguably more convincingly so in judge-alone cases than where the distinction has to be explained to a jury. But the artificiality of the distinction is easy to see in respect of inconsistent statements: if the fact-finder rejects the witness’s testimony, there is then no evidence - through the witness - on the point if the prior statement is not evidence of its own truth. The prior inconsistent statement cannot then be combined with other evidence in the determination of the relevant fact, even though it has been used to reject the witness’s testimony. Strictly, it also cannot be used to enhance the weight given to other evidence on the point.

It is more sensible to treat prior statements, once they are admissible, and whether they are consistent or inconsistent with the witness’s testimony, as being like any other statements: admissible to prove the truth of what they assert. Constraints on their admissibility are necessary to confine the evidence within manageable bounds, but once admissible the availability of their maker for cross-examination should remove the need for a rule rejecting them as proof of their truth.

So, what of the point made in the quotation from Divitaris in para 7 of Stirling? If the prior statement is alleged to have been a lie, its maker (the witness) can be cross-examined to show that. If cross-examination cannot undermine the truth of the prior statement, why should it not be admissible to prove its truth?

In New Zealand there is currently some uncertainty over whether s 35 of the Evidence Act 2006 has made prior statements evidence as proof of their truth. The Law Commission apparently intended them to be evidence of their truth, but there is a first instance decision holding that they are only proof of the witness’s consistency. My own view is that the section is clearly intended to make prior consistent statements admissible, in certain situations, as proof of their truth. Subsection (2) allows such statements to be used, inter alia, to respond to a challenge to the witness’s accuracy, and subsection (3) refers to circumstantial reliability of the prior consistent statement.