“Extreme and exceptional” murders

Two principles laid down in Pipersburg v R (Belize) [2008] UKPC 11 (noted here 26 February 2008 on another point) were applied in Trimmington v R (St Vincent and the Grenadines) [2009] UKPC 25 (22 June 2009). These concern determining when the discretionary death penalty is appropriate for murder.

Lord Carswell, for the Board, summarised the approach (21):

"It can be expressed in two basic principles. The first has been expressed in several different formulations, but they all carry the same message, that the death penalty should be imposed only in cases which on the facts of the offence are the most extreme and exceptional, "the worst of the worst" or "the rarest of the rare". In considering whether a particular case falls into that category, the judge should of course compare it with other murder cases and not with ordinary civilised behaviour. The second principle is that there must be no reasonable prospect of reform of the offender and that the object of punishment could not be achieved by any means other than the ultimate sentence of death. The character of the offender and any other relevant circumstances are to be taken into account in so far as they may operate in his favour by way of mitigation and are not to weigh in the scales against him. Before it imposes a sentence of death the court must be properly satisfied that these two criteria have been fulfilled."

This case was not of "the most extreme and exceptional" kind, so the Board substituted a sentence of imprisonment for life.

It is easy, although a little unfair, to push this to absurdity. The Board did not elaborate on how it compared this case to other murder cases. Did it look at murders internationally, or just murders on Saint Vincent and the Grenadines? Is the local judiciary entitled to apply local values in assessing what is "extreme and exceptional"? Is it necessary to accumulate a body of murders, so to speak, to establish standards against which the latest case can be measured? If murders in a given country are usually carried out in quite savage ways, does that establish a cultural norm?

And, how relevant is post-death mutilation or other indignity carried out by the killer? In Trimmington there was some of this, but the death was caused by throat cutting. On the good side, there was no planning or premeditation, prolonged trauma to or humiliation of the deceased. Those are things that accompany lawful executions.

Taking issue with expert testimony

Scientists can as individuals, at times, be bumbling idiots just like everyone else. At times they might be dishonest.

The following lengthy quotation touches on this.

Scalia J (delivering the opinion of the Court in Melendez-Dias v Massachusetts [2009] USSC No 07-591 (25 June 2009) (slip op pp 12 – 15), upholding the defendant's right to confront the expert and challenge his certificate of analysis:

"Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, "[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency." National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6–1 (Prepublication Copy Feb. 2009) (hereinafter National Academy Report). And "[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency." Id., at S–17. A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.

"Confrontation is one means of assuring accurate forensic analysis. While it is true, as the dissent notes, that an honest analyst will not alter his testimony when forced to confront the defendant, ..., the same cannot be said of the fraudulent analyst. See Brief for National Innocence Network as Amicus Curiae 15–17 (discussing cases of documented "drylabbing" where forensic analysts report results of tests that were never performed); National Academy Report 1–8 to 1–10 (discussing documented cases of fraud and error involving the use of forensic evidence). Like the eyewitness who has fabricated his account to the police, the analyst who provides false results may, under oath in open court, reconsider his false testimony. See Coy v. Iowa, 487 U. S. 1012, 1019 (1988). And, of course, the prospect of confrontation will deter fraudulent analysis in the first place.

"Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials. One commentator asserts that "[t]he legal community now concedes, with varying degrees of urgency, that our system produces erroneous convictions based on discredited forensics." Metzger, Cheating the Constitution, 59 Vand. L. Rev. 475, 491 (2006). One study of cases in which exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony contributed to the convictions in 60% of the cases. Garrett & Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1, 14 (2009). And the National Academy Report concluded:

"The forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to over-haul the current structure that supports the forensic science community in this country." National Academy Report P–1 (emphasis in original)....[footnote of Scalia J omitted]

"Like expert witnesses generally, an analyst's lack of proper training or deficiency in judgment may be disclosed in cross-examination.

...

" "[T]here is wide variability across forensic science disciplines with regard to techniques, methodologies, reliability, types and numbers of potential errors, research, general acceptability, and published material." National Academy Report S–5. See also id., at 5–9, 5–12, 5–17, 5–21 (discussing problems of subjectivity, bias, and unreliability of common forensic tests such as latent fingerprint analysis, pattern/impression analysis, and toolmark and firearms analysis). Contrary to respondent's and the dissent's suggestion, there is little reason to believe that confrontation will be useless in testing analysts' honesty, proficiency, and methodology—the features that are commonly the focus in the cross-examination of experts."

Adequacy of grounds

There are times when lawyers and judges have to grapple with the adequacy of grounds for the purported exercise of official powers such as arrest, search, or interception. These activities usually require "reasonable grounds" to "believe" that an offence has been committed or that evidence will be found, or that a person has committed an offence.

Some jurisdictions describe adequate grounds differently, but again the problem is to distinguish between adequate and inadequate grounds. "Probable cause" is the description of the requirement of adequate grounds for search in the USA, although in the context of searches of pupils at schools (not private schools) a lower standard, called "reasonable suspicion" is used to describe adequate grounds.

The distinction between reasonable grounds to believe (which constitutes adequate grounds) and reasonable grounds to suspect (which is usually inadequate), performs the same function as the distinction between "probable cause" (adequate grounds) and "reasonable suspicion" (usually inadequate, but adequate for government school officials to search pupils in the USA).

Whichever terms are used, it is tempting to say that the concepts are fluid and take their content from their context: Ornelas v United States, 517 U.S. 690, 696 (1996). This view was endorsed yesterday in Safford Unified School District #1 v Redding [2009] USSC No 08-479 (25 June 2009).

Lest the subject become impossibly vague – as it would if one were to accept that all the concepts are fluid - it may be useful to suggest a metaphor (admittedly a bit silly too, for serious-minded people): adequate grounds are like a vessel filled to a sufficient level: the shape of the vessel is fixed, the required level is marked on it, and it is the ability of the fluid to reach that mark that is critical.

For example, "probable cause" is described this way:

"Probable cause exists where 'the facts and circumstances within [an officer's] knowledge and of which [he] had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed," Brinegar v. United States, 338 U. S. 160, 175–176 (1949) (quoting Carroll v. United States, 267 U. S. 132, 162 (1925)), and that evidence bearing on that offense will be found in the place to be searched." [Safford, Souter J, slip op pp 3-4]

The first part of this describes the fluid ("the facts ... information"), and the second the vessel ("warrant ... committed"). The man of reasonable caution is, of course, the judge (pretending to imagine what some other reasonable person would decide – the objective person – but really deciding what he thinks is reasonable). Reasonableness comes into it twice: in relation to the fluid ("reasonably trustworthy information") and in relation to the vessel ("sufficient to warrant a man of reasonable caution ...").

More on the vessel: the enforcement officer must have information that provides "a fair probability" or a "substantial chance" that evidence will be discovered: Safford, Souter J pp 4-5, citing Illinois v Gates, 462 U.S. 213, 230 (1983). These terms reflect, in this metaphor, the level to which the vessel must be filled.

I think the metaphor helps by preventing the confusion that would arise if "a fair probability" and "a substantial chance" were to be applied to the quality of the information, which must be "reasonably trustworthy". It is only when satisfied of the reasonable trustworthiness of the information that one proceeds to ask what it suggests. Check the quality of the fluid, then what it does in the vessel. This approach has general application, translatable to the terminology of other legal systems.

Safford Unified School District #1 v Redding is a civil case, dealing with privacy rights, and would not normally come under consideration here. I have previously mentioned searches of school pupils in Canada: see notes for 28 April 2008, and Safford is interesting for its increase in quality of information needed to authorise a strip search of a pupil, compared with the lesser quality sufficient for search of bag or pockets. Thomas J, dissenting on the reasonableness of the strip search here, would have upheld it on the basis that departure from "bedrock" Fourth Amendment law was not appropriate.

Anyone who has been following developments in standard of proof jurisprudence (see “Balance of probabilities” in Index) will have noted differences of approach: the standard can shift or the quality of the evidence can change, according to what has to be decided. This is analogous to the position just mentioned: for strip searches of pupils, on the majority approach in Safford, does the standard change or does the quality of the information change? Souter J, for the Court, regarded the standard as fixed, requiring for strip searches a higher quality of information to meet it. Some courts would say that if information is sufficient to reach a given standard of persuasion, it is always sufficient to reach that standard, regardless of the seriousness of the issue; if context requires caution it is the standard that should be increased.

Double jeopardy and no-verdicts

Does a jury's failure to reach a verdict have any double jeopardy consequences? No: Yeager v United States [2009] USSC No 08-67 (18 June 2009).

Failure to reach a verdict is a non-event. Strange to say, the New Zealand Court of Appeal dealt with the same point in R v Shaw [2009] NZCA 232 (5 June 2009).

In Shaw there was one count, arson, but two ways in which the accused might have been liable: as a secondary party (arising from events some weeks before the fire) or as an offender at the scene; I refer to this latter as principal liability for simplicity - at the scene he could have been a secondary party, but the point of discussion here is the difference between liability at the scene and liability arising on a previous occasion. At the first trial, the jury convicted, and in answer to the Judge's (unusual) inquiry the foreman said this was on the basis of secondary liability. No information was sought or given about the jury's views on liability as a principal (they might have been unanimous or they might have been unable to agree, or they might not have decided the issue). The conviction was overturned on appeal because the accused had not been given sufficient notice of the Crown's intention to allege secondary liability. At retrial the judge directed the jury that they could convict even if they disagreed on the basis for liability. The jury convicted the accused and the judge did not inquire about the basis for that. One of the grounds of appeal was double jeopardy: the first jury should be taken to have decided that the accused did not commit the arson as a principal, so that could not be a basis for liability in the second trial. The majority on this point (Ellen France and Heath JJ) held that double jeopardy was not engaged: it would be wrong to infer that the jury had decided the issue of principal liability, let alone that they had rejected it. Principal liability was not addressed in the reason for verdict at the first trial. Nevertheless, a retrial was directed on the issue of secondary liability only: this was because Heath J was prepared to break the deadlock in this 3-judge bench by agreeing with the dissenter Fogarty J that, on broader abuse of process considerations, a real risk of double jeopardy was sufficient to prevent the prosecution from relying on liability as a principal, especially as it had always had the opportunity to allege the forms of liability as alternative counts in its indictment.

In Yeager the charges were, broadly, counts of fraudulently misleading the public about the virtues of an investment, insider trading by selling stock without disclosing to the public relevant information, and money laundering by dealing with the proceeds of the stock sales. The accused was acquitted on the fraud counts but the jury failed to reach agreement on the insider trading and money laundering counts. He was re-charged with some of the insider trading and money laundering counts. The Supreme Court had granted certiorari on the assumption that the Fifth Circuit had correctly ruled that the acquittals on the fraud counts meant that the jury had decided the accused did not have the information necessary for conviction on the insider trading charges. In fact the Fifth Circuit had reasoned that the failure to reach verdicts meant that the jury had not decided that the accused had the insider information, so the Supreme Court left open the opportunity for the Fifth Circuit to revisit its factual analysis of what, on the evidence, the acquittals necessarily meant: had the jury necessarily decided that the accused did not have the information that he was alleged to have had and which it was necessary to prove he had if he were to be convicted on the insider trading and money laundering counts?

The double jeopardy focus was thus on the meaning of the acquittals, not on the meaning of the failures to reach verdicts. "No verdict" has no meaning. Stevens J, delivering the opinion of the Court, put it like this: "the consideration of hung counts has no place in the issue-preclusion analysis."

Yeager decides that acquittals can have double jeopardy implications for counts on which no verdict has been reached (even by the same jury). Scalia J dissented on the basis - I summarise - that as the proceedings on the hung counts were not concluded they were the same proceedings as had involved the acquittals, so the acquittals were not prior in the double jeopardy sense. Alito J, also dissenting, noted that in this situation "the conclusion that the not-guilty verdicts preclude retrial on the hung counts necessarily means that the jury did not act rationally." That is because the jury must have been in doubt about a fact essential for conviction on the hung count (for double jeopardy to apply), and should have acquitted on both. He stressed that a strict analysis is necessary, as Ashe v. Swenson, 397 U. S. 436 (1970)

"made it clear that an acquittal on one charge precludes a subsequent trial on a different charge only if "a rational jury" could not have acquitted on the first charge without finding in the defendant's favor on a factual issue that the prosecution would have to prove in order to convict in the later trial. Id., at 444. This is a demanding standard."

Stevens J did not disagree on this:

"The reasoning in Ashe is ... controlling because, for double jeopardy purposes, the jury's inability to reach a verdict on the insider trading counts was a nonevent and the acquittals on the fraud counts are entitled to the same effect as Ashe's acquittal."

Inferences, reasonable doubt, and double hearsay in Canada

R v Griffin [2009] SCC 28 (18 June 2009) illustrates the Canadian approach to the criminal standard of proof in relation to circumstantial evidence. There is nothing special about circumstantial evidence in this regard (33):

"We have long departed from any legal requirement for a "special instruction" on circumstantial evidence, even where the issue is one of identification: R. v. Cooper, 1977 CanLII 11 (S.C.C.), [1978] 1 S.C.R. 860. The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. Imparting the necessary message to the jury may be achieved in different ways: R. v. Fleet 1997 CanLII 867 (ON C.A.), (1997), 120 C.C.C. (3d) 457 (Ont. C.A.), at para. 20. See also R. v. Guiboche, 2004 MBCA 16 (CanLII), 2004 MBCA 16, 183 C.C.C. (3d) 361, at paras. 108-10; R. v. Tombran 2000 CanLII 2688 (ON C.A.), (2000), 142 C.C.C. (3d) 380 (Ont. C.A.), at para. 29."

As with any sort of evidence, judges can go wrong in their instructions on standard of proof when they refer to alternative inferences. That was the ground of appeal on this point, but in context the majority held that there was no misdirection. Here, the Judge's references to "equally rational" and "as reasonable" inferences were, held the majority, references to the qualities of any inference, guilty or otherwise (35).

What do they mean by "beyond reasonable doubt" in Canada? Should a juror be able to explain to other jurors why he has a reasonable doubt? Would a "feeling" or an "intuition" be sufficient?

"43. As the majority of the Court of Appeal rightly acknowledged (at para. 65), this Court in R. v. Lifchus, 1997 CanLII 319 (S.C.C.), [1997] 3 S.C.R. 320, "did not entirely reject a definition of reasonable doubt that would include a reference to reasons". In settling the preferred approach to a jury charge on reasonable doubt in Lifchus, Cory J. noted the appellate controversy on whether a jury should be instructed that a reasonable doubt is a doubt "for which one can give a reason" (para. 28). After considering the potential risks and difficulties that accompany such an instruction, he concluded at para. 30: 

'It follows that it is certainly not essential to instruct jurors that a reasonable doubt is a doubt for which a reason can be supplied. To do so may unnecessarily complicate the task of the jury. It will suffice to instruct the jury that a reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence.' "

Here,

"45. The jury's question was a clear indication that it still required assistance on the definition of reasonable doubt and the application of this concept to the evidence. This Court has repeatedly stressed the importance of providing clear, precise answers to questions from a jury: R. v. Naglik, 1993 CanLII 64 (S.C.C.), [1993] 3 S.C.R. 122, at p. 139; R. v. S. (W.D.), 1994 CanLII 76 (S.C.C.), [1994] 3 S.C.R. 521, at pp. 528-31; R. v. Brydon, 1995 CanLII 48 (S.C.C.), [1995] 4 S.C.R. 253, at paras. 16 and 19; and R. v. Seymour, 1996 CanLII 201 (S.C.C.), [1996] 2 S.C.R. 252, at para. 30. Given the specificity of the query, it was reasonable for the trial judge to decide that more was required than a simple reiteration of the instructions contained in the main charge. In particular, the trial judge recognized that it was important to tell the jury that their verdict must be based, not on feelings or intuitions but rather, as set out in Lifchus above, "on reason and common sense" which, in turn, "must be logically based upon the evidence or lack of evidence" before the court (emphasis added). The trial judge explained what that meant by setting out generic examples of how a juror's analysis on reasonable doubt might proceed."

The majority thought there was no error in the Judge's direction:

"47 ... the instruction contains no error. As Côté J.A. put it [dissenting in the Court of Appeal for Quebec in the present case], "the standard requires a serious examination of the evidence upon which the verdict is to be based" (para. 139) and that was the essence of the message conveyed to the jury. ...."

There was also a hearsay ground of appeal in this case: the deceased victim had said something indicating fear of the accused. This was, in the circumstances of the case, admissible as hearsay, but only to prove the victim's state of mind. This artificial distinction has apparently been abandoned in New Zealand: hearsay seems to be admissible on any issue to which it is relevant. Not only could it go to proving the victim's fear of the accused, but it could be evidence of the accused's attitude to the victim. This is the "double hearsay" aspect of the evidence: the first hearsay aspect is a witness saying what the deceased said, and the second is the deceased's assertion of the accused's attitude to him. Care is needed before accepting the truth of double hearsay, because it is not possible to check whether the deceased might have been confused, but if the circumstances relating to the hearsay statement provide reasonable assurance that it is reliable, it should be admissible (s 18 Evidence Act 2006).

As with the other ground, the Supreme Court of Canada split 5 – 2 on this ground of appeal.

Timing and recent invention

A routine case (although the culmination of lengthy proceedings) from the Supreme Court of Canada on the admissibility of a witness's previous consistent statements is R v Ellard [2009] SCC 27 (12 June 2009).

Here, recent invention of testimony was alleged to have occurred as a result of rumours that were circulating. However, here those reasons for fabrication occurred before the relevant consistent statements were made. The statements therefore did not rebut a suggestion that the witness's evidence was influenced by rumours. They were not admissible.

If they had been admissible, a warning would have been required against their being used as evidence of the truth of their contents. Such a warning would not now be required in New Zealand, as the statements would, pursuant to s 35 Evidence Act 2006, go to proof of their contents: R v Barlien (noted here 8 July 2008 and 19 July 2008).

At what price?

Market value includes black market value for the purposes of ascertaining the amount of a forfeiture order under the Proceeds of Crime Act 2002[UK]: R v Islam [2009] UKHL 30 (10 June 2009).

The Law Lords split 3 – 2 over this, and overruled R v Hussain [2006] EWCA Crim 621.

There is a difference between calculating the amount of benefit derived from criminal activity and calculating the amount available to meet a confiscation order. Black market values can be used in the former, but not the latter.

Criminal activity may be interrupted by the offender's arrest, as it was in this case, before the proceeds were converted into money or lawfully held property. Here the respondent had imported heroin into the UK and was arrested in possession of it. What was the value of his benefit from the offending?

Pursuant to Hussain, which the Court of Appeal reluctantly followed in this case, it was nil, as the heroin had no lawful market value. Obviously on these facts there was no injustice arising from that conclusion, as the heroin was forfeited to the Crown. The magnitude of the offending, for sentencing purposes, could be measured by the illegal value of the drug, but would a confiscation order have any use?

Confiscation orders are adjusted so as not to exceed the value of property available for their discharge, so the potential injustice is mitigated. But that is a separate consideration from the calculation of the amount of benefit from the offending (44).

So, the value of the drugs on the black market was relevant to calculating the amount of the offender's benefit from the criminal activity.

What might the position be under our new Criminal Proceeds (Recovery) Act 2009[NZ]? (Commencement eagerly awaited: see note for 2 May 2009.) Has an offender like Mr Islam "derived" a "benefit" from the offending (s 7)? No definition of "derived"; it could be argued he was hoping to derive the benefit, but at the time of his arrest he hadn't quite achieved that [but see para 44 of Islam]. On the other hand, he had drugs that were very valuable on the black market. The drugs are "tainted property" (s 5(1) and s 50) and are liable to be forfeited under an assets forfeiture order. Then their value is deducted from the value of the benefit from the criminal activity (s 54(1)(b)) – which on these simple facts would be the same amount – to leave the maximum recoverable amount under a profit forfeiture order. This structure is consistent with the black market values being used in the calculations.

Sounds and unsoundness

A policeman thought he could hear a confessional statement on a recording of a telephone call made by the accused to emergency services. Experts agreed that they could not assist the jury as to whether or not those sounds were words or excited breathing. Amazingly, the trial judge, and three Court of Appeal judges, ruled that the jury could listen to the disputed sounds. The Supreme Court unanimously ruled the sounds inadmissible: Bain v R [2009] NZSC 16 (18 May 2009; judgment published 11 June 2009).

Three Supreme Court justices held that the sounds were not shown to be relevant: Elias CJ and Blanchard J jointly, Wilson J agreeing. McGrath and Gault JJ thought the sounds were relevant. All judges held that, if relevant, the sounds were inadmissible because their probative value was outweighed by their illegitimately prejudicial effect.

Probative value

If the sounds were relevant, that would mean they had a tendency to prove a matter in issue: s 7 Evidence Act 2006. What then would their probative value be? One would think that, if they were confessional words, their probative value would be very great. Indeed, the Court of Appeal thought the sounds were "plainly relevant" as if their probative value was equally plain: Bain v R [2009] NZCA 1 (30 January 2009) at para 255.

In the Supreme Court the probative value of the sounds was unanimously regarded as slight. Equivalent, for Gault J (103), to the mere possibility that jurors might, without priming, hear the disputed sounds as the alleged words. Wilson J (94) said the probative value was "very limited" because of the uncertainty about whether the sounds were words and if they were, what words they were, and because of the risk of priming. This reasoning seems to amount to saying that the probative value was slight because of the risk of prejudice, which is to blend the separate issues. McGrath J was clearer on probative value (83):

" ... the uncertainty of the conclusions of the expert witnesses, which are reached because of the limited audibility and indistinctness of the sounds themselves, impacts on their probative value and lessens the weight of the recordings as evidence of an admission in the balancing exercise."

Strange to say, however, McGrath J had used the opposite reasons to decide that the sounds were relevant (79):

"...I am satisfied that the disputed material is reasonably capable of influencing a jury's assessment of the probability of the existence of a disputed fact at the trial and that it meets the test of relevance in terms of s 7 of the Evidence Act."

Elias CJ and Blanchard J held (66) that the probative value of the sounds was slight, when contrasted with the prejudicial effect of the evidence. They considered the probative value was insufficient for the same reasons they held that the sounds were not relevant. These were (59) that the experts could not say whether or not the sounds were words or if they were, what they were. No standard of proof is mentioned for the weighing exercise in s 8(1), but Elias CJ and Blanchard J found (62 – 66) that some analogy could be obtained from s 28 (exclusion of unreliable statements) where the judge has to be satisfied on the balance of probabilities that the circumstances were not likely to have adversely affected the reliability of the statement, s 45 (visual identification evidence) where such evidence obtained at a properly conducted formal procedure is admissible unless the defence proves on the balance of probabilities that the evidence is unreliable, and s 46 (voice identification) where the prosecution must prove on the balance of probabilities that the evidence is reliable.

Prejudicial effect

The prejudicial effect could be "profound" Elias CJ and Blanchard J (67). Even if they decided the sounds were not words, or not the words alleged, the jury could still be influenced by the suggested interpretation in their assessment of other evidence. The judge would have to direct the jury that it would be dangerous to rely on the sounds as a confession. So, the only effect of their admission could be prejudicial.

McGrath J considered (85) that the source of the prejudicial effect was the risk that priming by suggestion would lead the jury to misinterpret the sounds and give them more weight than they deserved. This is not a case where the sounds are to be interpreted in the light of other circumstantial evidence (87). The jury could be diverted to "superficial reasoning" (88).

Wilson J regarded the prejudicial effect as "very great" (94, 96). If the jury decided the sounds were confessional words, that is all the evidence they would need to convict (94). The risk of priming by suggestion was too great.

Relevance

This was the issue on which the Court split 3 – 2. The governing provision is s 7 Evidence Act 2006.

Elias CJ and Blanchard J regarded the case as best decided under s 7, rather than under s 8. For the sounds to be relevant it was necessary that they could reasonably be taken to be speech of a confessional nature (53), because otherwise they would not tend to prove the matter for which they were put forward. Here, the experts' evidence was that the sounds were not reasonably capable of being such a statement (59).

Wilson J agreed (90), although he thought the threshold for establishing relevance was low. He did not say he disagreed that the interpretation suggested by the party seeking to adduce the evidence had to be reasonably available, and he applied that reasonability criterion in concluding that the evidence was not relevant here (92).

Gault J thought the evidence was relevant (101), as s 7 does not contain a threshold of the balance of probabilities (99). McGrath J also thought the sounds were relevant, noting that probative force is immaterial to relevancy, but there must be the tendency to prove the matter in issue. He took a different interpretation of the expert evidence:

"[79] ... The expert evidence supports the proposition that the sounds may be an exhalation of breath containing the incriminating words as speech intended to be sotto voce. A jury would find contextual assistance in determining if this was so from another section of the tape, which records what are plainly words spoken in conjunction with an audible exhalation."

Hummmm ... my assessment

• The ratio is correct: the s 7(3) requirement of a tendency to prove or disprove anything that is of consequence to the determination of the proceeding means the judge must conclude that the inference could reasonably be drawn if the evidence is to be admitted as relevant (43, 44).
  
• The Court's application of this ratio to the facts was correct.
  
• The Court was wrong to apply s 8: there was no need to do so. All the matters considered in purporting to apply s 8 were actually matters applicable to deciding relevance.
  
• In proceeding to consider what it would have decided if the evidence was relevant, the majority introduce confusion by failing to appreciate the implications of a decision that the evidence was relevant.
  
• If the evidence was relevant, it would have been reasonable support for an inference of guilt. That is, the jury would have assessed the evidence reasonably if it concluded that the sounds were a confession.
  
• If reasonably assessed as a confession, the probative value of the sounds would have been very high. There were no circumstances indicating that the confession was improperly obtained or was unreliable. The unfair prejudice in admitting it would have been zero: there was no risk that it would be used for an improper purpose or would cause the jury to reason wrongly. (I am not saying I think the probative value was high: the sounds were irrelevant and had no probative value.)
  
• As soon as one says no, the probative value was low because of the difficulty in hearing the sounds as words, one goes back, undermining the assumption that the evidence was relevant.
  
• Applying s 8 to this evidence has clouded the meaning of probative value and unfair prejudice. Those concepts apply once it is known what the evidence is; here the difficulty is prior to that, in determining what the evidence is.
  
• The joint judgment's reference (63) to analogous provisions that use the balance of probabilities in the decision process gives the impression that something similar should apply to the s 8 decision. Usually an omission of a phrase used in other parts of a statute would be regarded as deliberate. The balance of probabilities fits uneasily in s 8, because it suggests a high level of risk of unfair prejudice may be required.
  
• Footnote 60 of the joint judgment refers to s 8(2), which is expressed as a qualification on the probative value – unfairly prejudicial effect weighing exercise in s 8(1)(a). Its meaning is obscure, although Elias CJ and Blanchard J adopt the Law Commission’s commentary and treat s 8(2) as introducing a limit on the calling of defence evidence. That, however is far from clear, because s 8(1)(b) can serve that function. Indeed, s 8(2) is best regarded as a reminder that in exercising the discretion in s 8(1)(b) the judge must remember that the defendant has the right to offer an effective defence. Unfortunately s 8(2) expressly addresses the probative value against unfairly prejudicial effect weighing exercise required by s 8(1)(a), and the footnote attempts an impossible task when it tries to make sense of this by saying, “Under the Evidence Act the right of the accused to present evidence as part of his case is not absolute but is simply a factor to be considered in balancing probative value against unfairly prejudicial effect in excluding relevant evidence.” [Update: the role of s 8(2) was clearer in argument, transcript Bain v R SC13/2009 2 March 2009, pp 48-49, where it was submitted that the right to present a defence is relevant to assessing the risk that evidence will be improperly prejudicial. Elias CJ thought this might be “doubling up” on s 8(1), but then she accepted that s 8(2) is not expressed as a stand-alone provision.]
  
• The Court was right to decide the admissibility of the sounds without listening to them. The role of an ultimate appeal court is with law and policy, as was pointed out recently by Lord Hope in Secretary of State for the Home Department v AF (noted 11 June 2009) at para 88; there, the Law Lords dealt with the disclosure of closed evidence without knowing what it was.

Strasbourg reigns

Obedience to Strasbourg's Grand Chamber has led the House of Lords to correct itself: Secretary of State for the Home Department v AF [2009] UKHL 28 (10 June 2009).

The result is that there is now a rule (not a discretion) at common law which is that it is never fair to base a decision "solely or to a decisive degree" on material that has not been disclosed to the party adversely affected.

Previously, the House of Lords had recognised that there might be some cases where decisions could fairly be based "solely or to a decisive degree" on closed material: Secretary of State for the Home Department v MB [2008] 1 AC 440. This was on the basis that in such cases the closed evidence was so compelling that the tribunal could safely conclude that no answer to it was possible. This was the "makes no difference" principle.

The Grand Chamber approached the absolute requirement of fairness differently in A v United Kingdom [2009] ECHR 301 (noted here 22 February 2009). The rule laid down there is that sufficient information must be disclosed to enable the defendant to give effective instructions to meet the allegations.

Nine Law Lords considered the appeals in the present case, and the decision was unanimous. The House of Lords was obliged to follow the European Court of Human Rights. Lord Phillips delivered the leading opinion. Lord Hope noted (86) that there is a distinction between disclosing the allegations and disclosing their source (the former being required by the rule, not the latter), while recognising that details will often matter and that the system may be unsustainable. Lord Scott (95) said that Parliament could provide for procedures that overrode the right to a fair hearing, but he accepted that the reading down of the relevant statute (to make it subject to the requirements of fairness) was appropriate here. Lord Hoffmann wondered (74) about the limits of the idea that some guilty people might have to go free to protect the right to a fair hearing, and Lord Brown noted (121) that in some cases national security may have to give way to that right.

Lord Phillips said (64) that the best way to produce a fair hearing is to ensure the fullest disclosure. Whereas the earlier Strasbourg approach had been less stringent (Chalal v United Kingdom (1996) 23 EHHR 413, 131) was that the minimum requirement was "a substantial measure of procedural justice",

"65 ... The Grand Chamber has now [in A v United Kingdom] made clear that non-disclosure cannot go so far as to deny a party knowledge of the essence of the case against him, at least where he is at risk of consequences as severe as those normally imposed under a control order." [emphasis added]

But fairness in the context of control order proceedings (s 2 Prevention of Terrorism Act 2005[UK]) may not import the same requirements as fairness in the context of a criminal trial, as Lord Phillips pointed out in the following reference to R v Davis (noted here 19 June 2008):

"66. In A v United Kingdom the Strasbourg court has nonetheless recognised that, where the interests of national security are concerned in the context of combating terrorism, it may be acceptable not to disclose the source of evidence that founds the grounds of suspecting that a person has been involved in terrorism-related activities. In the light of this it should occasion no surprise that no counsel suggested that the decision of this House in R v Davis [2008] UKHL 36; [2008] 1 AC 1128 in relation to witness anonymity in criminal trials should be applied in the context of control order proceedings." [emphasis added]

But it hardly seems likely that the nature of the proceedings can determine whether the "essence" of the case includes "the source" of the information.

Whatever the nature of the proceedings, it should be possible to say whether they are based "solely or to a decisive degree" on the information which the prosecution seeks to suppress. This is apparent from Lord Hoffmann's overview (71):

"The difference between the rule laid down by the ECtHR and what I had previously thought to be the law of England is that the Strasbourg court has imposed a rigid rule that the requirements of a fair hearing are never satisfied if the decision is "based solely or to a decisive degree" on closed material, whereas the view expressed by a majority of your Lordships' House in Secretary of State for the Home Department v MB [2008] 1 AC 440 was that even in such a case, substantial justice might still be possible. As I understand the views expressed by judges of the Special Immigration Appeals Commission since MB's case, it is not unusual for the Commission to base its decision "to a decisive degree" on closed material and nevertheless to be satisfied, from the nature of that material, that the applicant has had a fair hearing."

A bit about David Bain’s retrial

The right tribunal

Last month was the fourteenth anniversary of the start of David Bain's first trial for murdering his parents, two sisters and brother. Last Friday he was acquitted on all charges. Judicial resistance to the idea that fresh evidence was sufficient to cast doubts on the guilty verdicts at his first trial was broken by the Privy Council on 10 May 2007.

It seems quite unlikely that without the availability of an appeal to the Privy Council the convictions would have been quashed. The Supreme Court of New Zealand, which now exercises that appellate jurisdiction, was created by promoting judges from the Court of Appeal. The Court of Appeal considered Mr Bain's case three times, and these are summarised by Lord Bingham ([2007] UKPC 33).

The faulty approach to determining whether a substantial miscarriage of justice had occurred because of the absence of the fresh evidence at the trial was so deeply ingrained in the way judges were thinking that even Sir Thomas Thorp, an advocate of protections against wrongful convictions, considered there had not been a miscarriage in Mr Bain's case.

I have noted the way the Privy Council corrected the Court of Appeal's approach (see second entry for 11 May 2007). In subsequent cases the Court tends to refer to the Privy Council decision – if at all – only to the extent that it approved the Court's statement of the law (a matter that was never in issue: it was the application of the law that was faulty). It cites its own judgment ([2004] 1 NZLR 638) for that statement of the law, without mentioning its error. See, for example, R v Morrice [2008] NZCA 261, R v Kingi [2008] NZCA 195, and R v F (CA300/08) [2009] NZCA 177. An obvious question for students is, has the Court's approach changed since the Privy Council's decision?

This is not to say that the Supreme Court is incapable of overturning any Court of Appeal decision in this case. In upholding an appeal against a pre-trial admissibility ruling, the Supreme Court has given itself the opportunity to clarify the law on s 8 Evidence Act 2006, which concerns the discretion to exclude evidence where its probative value is exceeded by the illegitimately prejudicial effect of admitting it. Judgment pending. [Update: see note for 12 June 2009]

Transposition of the conditional

Any sensible person will leave the decision on guilt or innocence to the jury. The only aspect of Mr Bain's recent trial that I mention here is an amusing example of a fallacy. A defence expert had given evidence about the death of David Bain's father, Robin Bain, who had died from a rifle shot to the left temple. Robin Bain was right-handed. The witness had said that this was not inconsistent with suicide. In cross-examination (according to the news media) the prosecutor had asserted that, as only about 3% of right-handed people who commit suicide by gunshot shoot themselves in the left temple, it was most unlikely that Robin Bain had committed suicide.

This error of logic is sometimes called the prosecutor's fallacy. But anyone can make it. It is a transposition of the conditional. The probability of suicide, given a wound to the left temple, is not the same as the probability of a wound to the left temple, given suicide. The former is about wounds to the left temple, and the latter is about suicides.

This is obvious from a simpler example (being a NZer, I take sheep ...): the probability of an animal having four legs, given that it is a sheep, is not the same as the probability of it being a sheep, given that it has four legs. The former is about sheep, the latter is about quadrupeds.

The prosecutor was using a statement about suicides as if it were a statement about left temple wounds. It was the latter that was relevant, not the former.


This is not to say that the evidence (3% of suicides by gunshot are to left temple) was not probative. Its value would be assessed in Bayesian terms by its likelihood ratio: the ratio of the probability of a left temple gunshot, given that this was murder, to the probability of a left temple gunshot, given that this was suicide. The missing information is the occurrence of murders by left temple gunshots.
A false start

According to reports, the judge started summing up the case by saying that the question was, "Was it Robin or was it David?"

That was the question for the police investigation, and for anyone playing detective, but the only question for the jury was, did David do it? Finding David not guilty was not the same as finding that Robin did it. But to find David guilty the jury would have had to exclude a reasonable possibility that Robin did it.

We do not know whether the jury acquitted David because they could not exclude a reasonable possibility that Robin did it, or because they thought it quite likely that Robin did it, or because they thought it more probable than not that Robin did it, or because they were sure Robin did it. Any of those is sufficient to acquit David.

Compensation

David can receive compensation for around 13 years in prison if he can establish on the balance of probabilities that he is innocent.

Another tribunal (probably a QC or SC appointed by the government) will have to decide that. It seems a terrible inefficiency to discard the jury and not to ask for their decision on this.

It is not unusual to have juries grapple with two standards of proof. They do this in drug trials, where possession of a given quantity of drug gives rise to a presumption of purpose of supply, rebuttable on the balance of probabilities.

Having two standards of proof under consideration may help the jury understand the difference between the balance of probabilities and proof beyond reasonable doubt. The first question the jury asked after retiring to consider its verdicts was for clarification of the meaning of reasonable doubt. In accordance with R v Wanhalla – see 25 August 2006 – the judge gave minimal assistance on that.

A juror's experience

For an intelligent description of a juror's experience in this trial, see the report in the New Zealand Herald online, Sunday, June 7 2009, "Bain juror: we were hounded".

Delay: the kinds of prejudice

Prejudice arising from delay was the Supreme Court of Canada's reason for restoring the stay of proceedings that had been entered by the trial judge in R v Godin [2009] SCC 26 (4 June 2009).

There is no discussion in this case of alternative remedies (contrast Williams v R [2009] NZSC 41, noted here 15 May 2009), but what is of interest is the analysis of prejudice:

"[30] Prejudice in this context is concerned with the three interests of the accused that s. 11(b)[Canadian Charter of Rights and Freedoms] protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin [1992 CanLII 89 (S.C.C.), [1992] 1 S.C.R. 771], at pp. 801-3."

As to prejudice to the right to make a full defence, this may not be easy to "quantify", but in any event this sort of prejudice is not essential:

"[38] Moreover, it does not follow from a conclusion that there is an unquantifiable risk of prejudice to the appellant's ability to make full answer and defence that the overall delay in this case was constitutionally reasonable. Proof of actual prejudice to the right to make full answer and defence is not invariably required to establish a s. 11(b) violation. This is only one of three varieties of prejudice, all of which must be considered together with the length of the delay and the explanations for why it occurred."

In this case the delay to trial exceeded the guidelines by over a year, and this was not the fault of the defence. The delay was attributable to the Crown and was unexplained. Defence counsel had sought early dates but his efforts were ignored. The charges were originally going to be prosecuted summarily, but they seem to have been reasonably serious: sexual assault, unlawful confinement, and threatening to kill.

Some delay in disclosure of scientific evidence had occurred:

"[11] ... There is no suggestion that Crown counsel delayed disclosure or was otherwise at fault for this delay. Nevertheless, the resulting delay is attributable to the Crown. It is responsible for bringing an accused person to trial and for the provision of facilities and staff to see that accused persons are tried in a reasonable time: R. v. Askov, 1990 CanLII 45 (S.C.C.), [1990] 2 S.C.R. 1199, at p. 1225. The Crown bears the burden of explaining unusual delays caused by the forensic investigators. It offers no explanation in this case."

This late disclosure led to additional delay as it was agreed that the prosecution should re-elect to proceed by indictment to give the defence time to investigate resulting inconsistencies with the complainant's statement. It was the delay in scheduling the preliminary hearing that defence counsel had endeavoured, without response, to avoid.

The availability of a stay of proceedings may vary between legal systems. It is easy to imagine a court saying, in a case like this, that the seriousness of the charges made the public interest in proceeding outweigh the breach of the accused's right to trial within a reasonable time, and his interests could be met by a reduction in sentence in the event of conviction, or by payment of compensation in the event of acquittal, especially because (although this point may not have applied in Godin) a fair trial was still possible.

Disobedient dissenters!

Again, final appellate judges refuse to obey the law and repeat their dissenting views in subsequent cases: R v Craig [2009] SCC 23, R v Ouellette [2009] SCC 24, and R v Nguyen [2009] SCC 25 (all 29 May 2009).

In the lead case, Craig, dissents were delivered by LeBel J, Fish J, and jointly by McLachlin CJ and Rothstein J. The same issues were addressed in Ouellette and Nguyen.

One would think (see notes for 19 January 2007, 16 January 2009 and 4 May 2009) that the dissenters would correctly identify the ratio of Craig and apply it in the subsequent cases. Instead, they repeated their reasoning by reference to what they had decided in Craig.

There was no suggestion that the decision in Craig was being considered with a view to its being overturned. If there had been such a suggestion, it would have been proper for the dissents to be raised again.

It must be confusing for law students to see appellate judges doing this. In Ouellette and Nguyen the dissenting reasons have absolutely no legal value: no lower court can follow them without misapplying Craig.

The cases concern the Controlled Drugs and Substances Act, S.C. 1996, c.19, particularly ss 16 and 19.1. Craig holds that forfeiture and sentencing are exercises independent of each other, but where forfeiture of real property is being considered, injustice may be avoided if partial forfeiture is ordered, although other options are no forfeiture of full forfeiture.

McLachlin CJ and Rothstein J dissented on the issue of partial forfeiture, holding that it was never available as an option. LeBel J and Fish J each dissented on whether the exercises were separate, holding that a sentencing judge may take into account a punitive forfeiture order.

So, any court that considers partial forfeiture of real property is not available would be contravening Craig. As would a court that thought a sentence should be influenced by the extent of a forfeiture order.

Economy overwhelms the need for a fair trial

Here is another illustration of a divergence of opinion between appellate judges over whether to apply the proviso: R v Van [2009] SCC 22 (28 May 2009).

The proviso permits the court to dismiss an appeal if it considers that an error at trial was not substantial. The meaning of substantial is at the root of the difficulties.

The Supreme Court of Canada split 5 – 4. The minority, in a judgment delivered by newbie Cromwell J, did not discuss the law on the proviso. For the majority, LeBel J (with McLachlin CJ, Deschamps, Abella and Rothstein JJ) summarised the law (34 – 36) as requiring the Crown to establish that the error was of one of two kinds:

1. An error that is harmless on its face or in its effect, in the sense of being trivial, peripheral, or actually favouring the defence. The idea here is that a jury need not be "perfectly" directed, as long as it is "properly" directed (citing Lamer CJ in R v Jacquard [1997] 1 SCR 314 at para 2). These errors are such that if they had not been made any reasonable judge or jury could not possibly have rendered a different verdict.
   
2. An error that, although not minor or not without prejudice to the defence, occurred in a context where depriving the accused of a proper trial is justified (citing Sopinka J in R v S (PL) [1991] 1 SCR 909) and the cost and delay involved in a retrial is avoided (citing Binnie J in R v Jolivet [2000] 1 SCR 751 at para 46). This requires that the Crown case is so strong as to be overwhelming, and in assessing this any possible measure of doubt as to the strength of the prosecution case favours the appellant.
   

 Well, permitting that second type of error is contrary to the widely accepted dictum of Lord Bingham in Randall v R [2002] 1 WLR 2237 at para 28 – mentioned in these notes as recently as 28 May 2009. The Supreme Court of Canada made no reference to fair trial requirements, and its approach is consistent with the view – repulsive to a civilised person - that a guilty accused need not be tried fairly.

Failure of the Supreme Court of Canada to update its jurisprudence on the proviso is important in this appeal because the type of error at trial was of the second kind, as is indicated by the Crown's concession (noted by Cromwell J at 97) that the error was serious.

The better approach to the proviso is to ask whether the error deprived the accused of a fair trial, that is, a trial where the law was correctly applied to facts determined impartially. If the trial was not fair, the appeal must be allowed. If the error did not prevent a fair trial, is there a real risk that it deprived the accused of a more favourable verdict? If there is such a risk, again the proviso cannot be applied.

However, even under this suggested approach, the Court in Van would probably have split on whether the trial had been fair. The minority would still say that the error may have affected the jury's assessment of credibility so that it is impossible to say whether they would have convicted in the absence of the error. The majority would still say that the error would not have affected the jury because they would have thought the witness was referring to his earlier evidence and not to inadmissible hearsay. In reasoning this way the majority sidestep the Crown's concession and treat the error as being of the first kind.

The possibility is that even the best approach to the proviso yet devised will not prevent appellate judges from coming to different conclusions when evaluating the significance of errors. But when they approach their task without a focus on trial fairness they are likely to consider errors insubstantial when the prosecution evidence is strong.

Is a buyer party to the sale?

Abuelhawa v United States [2009] USSC No 08-192, 26 May 2009 deals with whether a buyer of a drug is a party to its sale in a statutory context where the buyer commits a minor offence (or, as they spell it, offense) and the seller a serious offence as indicated by the penalty regime.

Souter J, delivering the opinion of the unanimous Court, said

"Where a transaction like a sale necessarily presupposes two parties with specific roles, it would be odd to speak of one party as facilitating the conduct of the other. A buyer does not just make a sale easier; he makes the sale possible. No buyer, no sale; the buyer's part is already implied by the term "sale," and the word "facilitate" adds nothing. We would not say that the borrower facilitates the bank loan. ...

" ... The traditional law is that where a statute treats one side of a bilateral transaction more leniently, adding to the penalty of the party on that side for facilitating the action by the other would upend the calibration of punishment set by the legislature ..."

He noted that "facilitate" has a similar meaning to aid, abet, and assist.

There has been a diversity of opinion as to whether a buyer is a party to a sale. In R v Meston (1975) 34 CRNS 323 the Supreme Court of Canada held that a buyer who encourages the vendor is abetting the sale.

In the UK the offence is defined as "supply ... to another" and "to be concerned in the supplying ... to another" (s 4 Misuse of Drugs Act 1971[UK]), and it seems to be regarded as "a matter of common sense" that that other person cannot be a person charged: Connelly [1992] Crim LR 296 (CA), although in his commentary to that case Professor Smith said that holding the recipient liable as a secondary party to the principal's offence "might perhaps be thought a devious way to proceed; but it seems right in principle."

In Australia a person can be liable for supply of a drug to himself: Maroney v R [2003] HCA 63.

In New Zealand we seem to say that there is nothing inherently wrong with the idea that a buyer may be a party to the sale to himself: R v Ngamoki 7/11/97, Heron J, HC Palmerston North T5/97, although the better approach may be to classify the buyer as a procurer (who commits the lesser offence): R v Lang (1998) 16 CRNZ 68 (CA).

Breach of prosecutor’s duties

Breach of the prosecutor's duties made the trial unfair in Stewart v R [2009] NZSC 53 (28 May 2009). That meant that the proviso could not be applied. But even if the trial had been fair the convictions would have been quashed because the trial outcome may have been different without the errors.

There is no new law in this decision, just a reminder of the duties of prosecutors and illustrations of their breach. Cases applied are R v Roulston [1976] 2 NZLR 644 (CA), R v Hodges CA535/02, 19 August 2003, R v Cook [1997] 1 SCR 1113, R v Mallory (2007) 217 CCC(3d) 266 (Ontario CA), R v E CA308/06, 11 September 2007, and Lord Bingham's well known dictum in Randall v R [2002] 1 WLR 2237 at para 28 (noted here 30 June 2008). There is also a quotation from Matenga v R [2009] NZCS 18 (13 March 2009) – a case that has been withheld from publication until completion of a retrial: does this breach the Court's own suppression order? (Of course not, don't be silly.)

Here the prosecutor had created substantial prejudice to the accused's right to a fair hearing by his criticism, in closing, of a defence expert witness. This was a senior psychiatrist, who the prosecutor, without evidential foundation, said had accepted money in an attempt to establish a defence, had spoken "psychobabble", and had "[bent] things around to suit the accused". This was an appeal to prejudice through the use of emotive and inflammatory language, which was made all the worse because the witness was in general agreement with the Crown's expert. The Judge may not have been able to remedy this prejudice, but in any event he had increased it by referring to the witness's evidence as crucial and mentioned without disapproval the Crown's submission that the witness's conclusion was "patently ridiculous".

Another important breach by the prosecutor was alleging, without an evidential foundation, that the accused and his witnesses were lying in order to avoid his being convicted. This required an assumption of guilt as the motive for lying, and so subverted the presumption of innocence.

This point was not affected by the accused having alleged that prosecution witnesses had their own reasons for lying, because no presumption of innocence applies to them.

The Crown did not seek a retrial, as the appellant had served his sentence. This does not always prevent a retrial, as is illustrated by a high-profile (well, world famous in New Zealand) retrial currently under way. I say no more ... hush ma mouf.

Unstilted voluntariness

"When a defendant is not in custody, he is in control, and need only shut his door or walk away to avoid police badgering. And noninterrogative interactions with the State do not involve the "inherently compelling pressures," Miranda [v Arizona 384 U.S. 436 (1966)], ..., at 467, that one might reasonably fear could lead to involuntary waivers."

The assumption that a suspect who is not in custody does not experience objectionable pressure to consent to official investigatory measures (interrogation, search) is not one that would be made by many counsel experienced in criminal law. Yet it is an important part of the reasoning of the Court (Scalia J, joined by Roberts CJ, Kennedy, Thomas and Alito JJ) in Montejo v Louisiana [2009] USSC No 07-1529 (26 May 2009), slip op. p 16.

The Court overruled its decision in Michigan v Jackson, 475 U.S. 625 (1986), finding it to be "superfluous" (ibid, p 15). Its objectionable aspect was its presumption that waiver of the right to counsel is invalid if the police have initiated interrogation after the defendant has invoked his right to counsel at arraignment or similar proceeding.

There is no need for that presumption, held the Court in Montejo, because a line of cases that have hitherto been concerned with Fifth Amendment rights is applicable to these Sixth Amendment rights too. These cases are not in question, and are Miranda v Arizona, 384 U.S. 436 (1966), Edwards v Arizona, 451 U.S. 477 (1981), and Minnick v Mississippi, 498 U.S. 146 (1990). They require respectively (1) that a suspect in custody being interrogated must be advised of his right to have a lawyer present, (2) that such interrogation must stop once the Miranda right is invoked and any subsequent purported waiver is invalid, and (3) that there be no subsequent interrogation until counsel is present.

So, without the Jackson rule, it is possible for the police to interrogate the defendant after arraignment if he is given his Miranda right but he does not invoke it. There is, in other words, no need for the police to seek the prior consent of counsel before interrogating the defendant after commencement of proceedings.

The Court's approach to overruling its own decisions is of interest. It asks whether the previous decision proved unworkable, how old it is, what reliance interests are at stake, and whether it was well reasoned. The reliance interests are its costs and benefits. The benefits were put this way (slip op, p 15):

"A bright-line rule like that adopted in Jackson ensures that no fruits of interrogations made possible by badgering-induced involuntary waivers are ever erroneously admitted at trial.

"But without Jackson, how many would be? The answer is few if any. The principal reason is that the Court has already taken substantial other, overlapping measures toward the same end [ie Miranda, Edwards and Minnick, above]."

So, the Court has done away with the need for the police (or any enforcement authority) to advise counsel in advance of an effort to interrogate the defendant, at the same time as it has retained the application of the Miranda, Edwards and Minnick line of cases to only custodial interrogation. Is it realistic to suppose that coercion only exists in custody?

Short in trumps

There are times when it's a struggle to say anything interesting about the final resolution of a disputed point of law.

"How sour sweet music is, when time is broke and no proportion kept ..."

isn't quite it, yet it almost is.

Overall, five judges decided against the appellant (six if you count the first instance court where the point was taken for granted without argument), and four decided it for the appellant. These four, being the majority of the highest court, determined the result.

The Supreme Court decision is Davies v Police [2009] NZSC 47 (25 May 2009). The point is narrow and peculiar to New Zealand statutory law. It is about whether an order for payment of reparation at sentencing can include an award to cover a top up to the amount of compensation to which the victim is entitled under legislation which provides a scheme for that but only to the extent of 80% of the actual loss.

But enough of that. Anyone keen enough to read the decision will note an error in para 21: the sentence

"It [the Court of Appeal] thought that the legislative history made it clear that s 32(5) [of the Sentencing Act 2002] was concerned only to exclude losses not compensated under the Injury Prevention, Rehabilitation, and Compensation Act, and there was no basis for excluding reparation for losses not able to be compensated."

is obviously wrong (delete the first "not"). Stop the presses, alert the Court! Yawn.

A night mission

Judicial decisions must be based on adequate grounds, and a decision to stay proceedings is no different. In R v Edwards [2009] HCA 20 (21 May 2009) the High Court overturned the Supreme Court of Tasmania's decision to enter a stay. That Court (SlicerJ) had, held the High Court in a unanimous judgment, acted on a wrong principle and taken into account irrelevant considerations relating to the suggested complexity of the trial.

The charge was reckless operation of an aircraft. The recklessness was alleged to be taking off in darkness without the necessary runway illumination. Five people outside the aircraft saw that the takeoff was done without this lighting. Through delay in the proceedings electronic records of the operation of the lights was lost.

The respondents, the two pilots of this Boeing 737-400, sought a stay because of this loss of evidence. Slicer J put the test as "whether on the material before this Court continuation of the indictment to trial by jury could constitute an unacceptable injustice or unfairness" (emphasis added by the High Court at para 22)

The test, however, is not "could", but "would": "whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness", or whether the "continuation of the proceedings would be 'so unfairly and unjustifiably oppressive' as to constitute an abuse of process": Walton v Gardiner (1993) 177 CLR 378 at 392 per Mason CJ, Deane and Dawson JJ.

The High Court summarised Slicer J's errors as

" ... [his] ultimate conclusion was based upon the loss of the primary evidence and "overall" delay. It was not explained how the overall delay operated in combination with the lost evidence to create irremediable prejudice to the respondents, nor did his Honour address the circumstance that at least some of the delay was attributable to the conduct of the defence" [Footnote: See Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 33 per Mason CJ; [1989] HCA 46 as to the significance of the reasons for delay as a factor in the exercise of the balancing process in determining whether to grant a stay.]

On appeal, the "overall delay" point was not relied on by the respondents, but their argument was that "the loss here is of the independent record of the event giving rise to the charge. This is ... productive of unfairness of the kind that informs the power to stay since the trial will necessarily involve an incomplete reconstruction of the event."

Not so, said the High Court. There is nothing unusual in a court having to consider an incomplete account of events:

"31. The distinction between an independent record forming a constituent part of an event and an independent record of an event is without substance. Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair [Footnote: Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 34 per Mason CJ, 47 per Brennan J; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 519 per Mason CJ, Dawson, Toohey and McHugh JJ; [1992] HCA 34.]"

And,

"33. It is well established that the circumstances in which proceedings may be found to be an abuse of process are not susceptible of exhaustive definition [Footnote: Ridgeway v The Queen (1995) 184 CLR 19 at 74-75 per Gaudron J; [1995] HCA 66; R v Carroll [2002] HCA 55; (2002) 213 CLR 635 at 657 [73] per Gaudron and Gummow JJ; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 at 265-267 [9]- [15] per Gleeson CJ, Gummow, Hayne and Crennan JJ; [2006] HCA 27.] It is not necessary to consider whether there may be circumstances in which the loss of admissible evidence occasions injustice of a character that would make the continuation of proceedings on indictment an abuse of the process of the court. This is not such a case. The content of the ... [missing evidence] is unknown. In these circumstances it is not correct to characterise ... [its] loss as occasioning prejudice to the respondents. The lost evidence serves neither to undermine nor to support the Crown case. It is to be observed that if the Crown is unable to exclude the hypothesis, that the runway lighting was illuminated as the aircraft moved along it and that it ceased operating coincidentally at the time of take-off, it would fail to establish an element of the principal and the alternative offence."

It could not be established that any prejudice arising from the delay could not be addressed by a direction (para 34, citing Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 34 per Mason CJ, 60 per Deane J, 77-78 per Gaudron J; R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 605 per Mason CJ and Toohey J; [1992] HCA 16; see also Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60).

This case illustrates that more is required for a stay than merely a complaint that evidence that might have assisted the defence is lost. It is not sufficient simply that the evidence would have been relevant to an issue in the case, it needs to be shown that the missing evidence would have tended to establish a proposition that would assist the defence. Loss of the evidence may mean that prosecution evidence is uncorroborated, and the court may properly be cautious for that reason, but that goes to weight. A stay is a drastic remedy and is not given on a whim. As I have noted in relation to risk of unfairness (see, for example, entries for 19 July 2005, 1 May 2006) it is appropriate to look at this as a question of fact rather than as an "evaluation". Is there a real risk that the lost evidence would have had probative value for the defence? In the present case, some evidence that the takeoff had been illuminated by the runway lights would have been needed: the respondents had not given evidence at this pre-trial application. Whether evidence from them would have been enough to give rise to a risk that could not be dealt with by a direction cannot be ascertained from this judgment: the High Court ordered that the application for a stay be dismissed. Could a fresh application based on further evidence be made, or would that be an abuse of process as the applicants have had their opportunity? You decide.

Also decide whether the High Court has inappropriately merged the reluctance of the court to grant a stay with the receptiveness of the court to the risk of unfairness.

Remedies for undue delay

The remedy for undue delay before trial was the subject of Williams v R [2009] NZSC 41.

As would be expected, the Court applied dicta in Attorney-General's Reference (No 2 of 2001) [2004] 2 AC 71 at para 24, and Elaheebocus v The State of Mauritius [2009] UKPC 7 (noted here 2 March 2009).

"Undue" delay means unjustifiable (para 12), and

" ... there is no obligation on any accused to progress matters towards trial, or to protest about delay; the obligation is on the prosecution to ensure trial without undue delay. Whether delay is attributable to the Courts or to the prosecution is irrelevant to the determination of the question of excessive delay, but may be relevant in assessing the validity of any explanation for the delay and (if necessary) what remedy should be granted."

The Court observed that the right to a fair trial and the right to a trial without undue delay are distinct rights but they can overlap. There may be undue delay, requiring a remedy, even though the delay did not affect trial fairness. Therefore, a stay of proceedings is not the automatic remedy for undue delay. It is not even a usual remedy (para 18):

"Staying the proceedings is likely to be the correct remedy only if the delay has been egregious, or there has been prosecutorial misconduct or a sanction is required against a prosecutor who does not proceed promptly to trial after being directed by a Court to do so. If an accused is convicted after being on bail pending trial, a reduction in the term of imprisonment is likely to be the appropriate remedy. If the accused has been in custody, that time will count towards service of the term of imprisonment. In an extreme case, [Footnote: As for example in Darmalingum v The State [2000] 1 WLR 2303 (PC)] the conviction may be set aside. Upon acquittal, monetary compensation may be justified.
The seriousness of the offending will usually not be relevant to the nature of the remedy. If however the offending is well towards the lower end of the scale, that may be sufficient to tip the balance in favour of a stay."

Obviously, where delay (or anything else) leads to an unfair trial a stay (or on appeal the quashing of a conviction) would be necessary.

In Williams the reduction of sentence was the appropriate remedy for the undue delay.

Knowledge of circumstances

Knowledge of circumstances was required as a matter of statutory interpretation in Flores-Figueroa v United States [2009] USSC No 08-108, 4 May 2009. It was necessary that a person who used false identification numbers knew that they identified another person. The statutory language contained the phrase "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person": 18 U. S. C. §1028A(a)(1).

The Court was unanimous in the result, although Scalia J and Alito J in separate judgments were concerned that Breyer J (joined by the others) was making a new rule of interpretation involving the application of adverbs. However, Breyer J acknowledged Alito J's concern and recognised the importance of context. Even so, there were no examples that the Government could cite in support of its approach. This was a case of normal English usage being applied.

There is no discussion here of what "knowledge" means. Does it include suspicion, wilful blindness, belief, doubt? Usually mens rea includes recklessness, but does it here? Some recognition of the difficulties is apparent from the Government's argument, noted at p 10 slip op., mentioning the possibility that the defendant might not care whether the identification he presented belonged to another person, but the Court felt this was not a sufficient argument in this case:

"... in the classic case of identity theft, intent is generally not difficult to prove. For example, where a defendant has used another person's identification information to get access to that person's bank account, the Government can prove knowledge with little difficulty. The same is true when the defendant has gone through someone else's trash to find discarded credit card and bank statements, or pretends to be from the victim's bank and requests personal identifying information. Indeed, the examples of identity theft in the legislative history (dumpster diving, computer hacking, and the like) are all examples of the types of classic identity theft where intent should be relatively easy to prove, and there will be no practical enforcement problem. For another thing, to the extent that Congress may have been concerned about criminalizing the conduct of a broader class of individuals, the concerns about practical enforceability are insufficient to outweigh the clarity of the text."

This seems to support knowledge meaning actual knowledge.

Scalia J disliked Breyer J's use of what we usually call Parliamentary materials (legislative materials in the USA) or legislative history:

"Relying on the statement of a single Member of Congress or an unvoted-upon (and for all we know unread) Committee Report to expand a statute beyond the limits its text suggests is always a dubious enterprise. And consulting those incunabula with an eye to making criminal what the text would otherwise permit is even more suspect. See United States v. R. L. C., 503 U. S. 291, 307–309 (1992) (Scalia, J., concurring in part and concurring in judgment). Indeed, it is not unlike the practice of Caligula, who reportedly "wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people," 1 W. Blackstone, Commentaries on the Laws of England 46 (1765)."

However Breyer J had found the legislative history inconclusive.

Contradicting the snitch

If improperly obtained evidence is inadmissible in chief, is it necessarily inadmissible in cross-examination?

In Kansas v Ventris [2009] USSC No 07-1356, 29 April 2009, the Court held (7 – 2) that an improperly obtained statement, from a jailhouse informant where the breach was of the Sixth Amendment right to counsel, which the prosecution conceded was inadmissible in chief, could be used in cross-examination to impeach the accused's inconsistent testimony.

This was on the basis, as Scalia J delivering the opinion of the Court (joined by Roberts CJ, Kennedy, Souter, Thomas, Breyer and Alito JJ) put it, that

"Our precedents make clear that the game of excluding tainted evidence for impeachment purposes is not worth the candle. The interests safeguarded by such exclusion are "outweighed by the need to prevent perjury and to assure the integrity of the trial process." Stone v. Powell, 428 U. S. 465, 488 (1976). "It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can provide himself with a shield against contradiction of his untruths." Walder, supra, [Walder v. United States, 347 U. S. 62, 65 (1954)] at 65. Once the defendant testifies in a way that contradicts prior statements, denying the prosecution use of "the traditional truth-testing devices of the adversary process," Harris, supra,[Harris v. New York, 401 U. S. 222, 225–226 (1971)] at 225, is a high price to pay for vindication of the right to counsel at the prior stage."

So, that's the rule. Scalia J, perhaps a little inconsistently, disavowed any rule-making function for the Court in his final footnote:

"Respondent's amicus insists that jailhouse snitches are so inherently unreliable that this Court should craft a broader exclusionary rule for uncorroborated statements obtained by that means. Brief for National Association of Criminal Defense Lawyers 25–26. Our legal system, however, is built on the premise that it is the province of the jury to weigh the credibility of competing witnesses, and we have long purported to avoid "establish[ing] this Court as a rule-making organ for the promulgation of state rules of criminal procedure." Spencer v. Texas, 385 U. S. 554, 564 (1967). It would be especially inappropriate to fabricate such a rule in this case, where it appears the jury took to heart the trial judge's cautionary instruction on the unreliability of rewarded informant testimony by acquitting Ventris of felony murder.[ He was convicted of aggravated burglary and aggravated robbery.]"

Stevens J (joined by Ginsburg J) dissented. He repeated his reasons for dissent in Michigan v Harvey, 494 U.S. 344 (1990).

On the topic of whether judges should adhere to earlier dissents, see blogs for 19 January 2007 and 16 January 2009.

He reasoned that the state's use of the improperly obtained evidence compounded the violation and promoted "shabby" police tactics.

This case is a reminder that an application to have evidence admitted may be renewed. The interests in using improperly obtained evidence in chief might not be the same as the interests in using it in cross-examination.

In New Zealand, our Evidence Act 2006 is silent on this point, but it does allow the use of voir dire evidence in cross-examination if the witness gives evidence that is inconsistent with evidence he gave at voir dire: s 15. Note s 90(1) and (2) which prohibit the use of inadmissible documents in questioning witnesses. At common law, use of an inadmissible statement in cross-examination was not permitted: Wong Kam-Ming v The Queen [1980] AC 247. In R v Ryland 17/4/02, CA389/01 the Court referred to such a confession being "inherently inadmissible", contrasting it to evidence which had earlier in the trial lacked an evidential foundation for its relevance but which subsequently became relevant.