Disclosure, fair trial, truth and justice

No progress in development of the idea of the accused's right to a fair trial was made in R v Bjelland [2009] SCC 38 (30 July 2009).    

The remedy for untimely disclosure was discussed, and the court divided 4 – 3 on whether the availability of exclusion should be approached in a restricted way. The majority (per Rothstein J, with McLachlin CJ, LeBel, and Deschamps JJ) held that exclusion is only appropriate if there is no other way of protecting the accused's right to a fair trial or of avoiding compromise to the integrity of the justice system. Here, the judge had wrongly ordered exclusion because the trial could have been delayed further. The minority (per Fish J, with Binnie and Abella JJ) would not have reviewed the judge's decision as there had been no error on an approach that would have permitted wide discretion as to remedy, following the established approach to s 24(1) Charter.

So, what is a "fair trial"? The majority quoted (22) McLachlin J (as she then was) in R v Harrer 1995 CanLII 70 (S.C.C.), [1995] 3 S.C.R. 562 at 45:

"At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused's point of view: R. v. Lyons, 1987 CanLII 25 (S.C.C.), [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused." [Emphasis added by the majority in Bjelland.]

So, fairness means "basic procedural fairness". Ho ho. Now we know.

This was linked to the idea of the trial as a search for truth. I thought the police investigation was a search for truth, and the trial a test of the strength of the evidence presented as a result of that search. The minority thought so too (65):

"The policy of the law in this regard was well put by Samuel Freedman, then Chief Justice of Manitoba, in this well-known passage:

"The objective of a criminal trial is justice. Is the quest of justice synonymous with the search for truth? In most cases, yes. Truth and justice will emerge in a happy coincidence. But not always. Nor should it be thought that the judicial process has necessarily failed if justice and truth do not end up in perfect harmony. . . . [T]he law makes its choice between competing values and declares it is better to close the case without all the available evidence being put on the record. We place a ceiling price on truth. It is glorious to possess, but not at unlimited cost. 'Truth, like all other good things, may be loved unwisely — may be pursued too keenly — may cost too much.' "

"(S. Freedman, "Admissions and Confessions", in R. E. Salhany and R. J. Carter, eds., Studies in Canadian Criminal Evidence (1972), 95, at p. 99, quoting Pearse v. Pearse (1846), 1 De G. & Sm. 11, 63 E.R. 950, at p. 957.)"

Nothing further was offered by the minority on what is a "fair trial".

The majority also held that the right to make full answer and defence does not include as a component the right to cross-examine at preliminary hearing (35). That is no doubt correct now that disclosure regimes have been formalised. No doubt there could be cases where the right to make a full answer requires an opportunity to cross-examine at preliminary hearing, but that opportunity would not amount to a general "right".

Choice

Capacity to make a choice requires understanding, weighing of information, and choosing:

"the case law on capacity has for some time recognised that, to be able to make a decision, the person concerned must not only be able to understand the information relevant to making it but also be able to "weigh [that information] in the balance to arrive at [a] choice": see Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290, 295, approved in Re MB (Medical Treatment) [1997] 2 FLR 426."

per Baroness Hale a para 24 of R v C [2009] UKHL 42 (30 July 2009). The choice must be autonomous (free) and must not be driven, for example by a compulsion, delusion, or phobia (25).

Inability to communicate a decision to refuse consent amounts to an inability to make a decision (29).

This was said in the context of the Sexual Offences Act 2003[UK], s 30(1) and (2), but its core is no doubt of wider relevance. It could apply wherever a "decision" is required (avoiding the words "consent" or "refuse"), as in Crimes Act 1961[NZ], s 138.

The two cultures

Answers to jury questions must be responsive and must not deter further questions: R v Layton [2009] SCC 36 (23 July 2009).

If the jury has a copy of the judge's summing up then mere repetition of the words used in it is not likely to be responsive. Here, a direction on the standard of proof led to a question seeking clarification. A difficulty arose because the law is reluctant to elaborate on what "beyond reasonable doubt" means, apart from the standard direction.

It is easy to see why the phrase "beyond reasonable doubt" causes trouble to jurors. It is a description of the required level of proof, which may be thought of as going in one direction, yet at the same time it is expressed in terms of doubt, which tends in the other direction.

As lawyers we are so used to the expression "beyond reasonable doubt" that we take its meaning for granted, ignoring this contradiction in the composite concepts. Even though juries frequently ask for further assistance on the meaning of "beyond reasonable doubt" (see also R v Griffin [2009] SCC 28 noted here 19 June 2009), the law is not clear on what more should be said.

In Layton the standard R v Lifchus, 1997 CanLII 319 (S.C.C.), [1997] 3 S.C.R. 320 direction had been given. In the second day of its deliberation the jury returned with this question:

"Jury requests clarification on reasonable doubt section of charge to the Jury. Particularly difference between absolute certainty and balance of probabilities"

citing the relevant part of the standard direction.

In the terms I mentioned above, although the first sentence refers to doubt, the second is about proof.

The standard direction contained this phrase: "...the reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities."

Given that the jury had this in writing, why the question?

It's a mystery to lawyers, and it is not surprising that counsel in this trial had been unable to offer much by way of assistance to the judge in her preparation of the answer.

Perhaps the jury was really seeking clarification on doubt: how much difference is there between no doubt (absolute certainty) and the balance of probabilities? That is a sensible question, because proof on the balance of probabilities can be achieved by elimination of any of a range of doubts. To put it mathematically (as the law doesn't but as people do tend to: see note on R v Wanhalla 25 August 2006), proof on the balance of probabilities may leave no doubt, or up to 49% of doubt. It would be over-proof, but the result would be the same for leaving any level of doubt in that range. For example, if a doubt of 25% remained, it would still be correct to say that the plaintiff had proved his case on the balance of probabilities. So too if the doubt was 10% or 49%. But if the doubt was 51% or more the plaintiff would have failed to prove his case on the balance of probabilities.

The most helpful way of answering the question would be to say that the balance of probabilities is satisfied even though there may be 49% doubt, and absolute certainty is where there is zero doubt. The criminal standard of proof tolerates much less doubt than the balance of probabilities: much closer to zero doubt than to 49% doubt.

But the law doesn't approve of the use of approximate figures or mathematical analogies. The two cultures persist.

Aiming les brickbats at le top

A full eleven days after the decision in Matenga v R [2009] NZSC 18 (13 March 2009, mentioned in note of 9 July 2009) came to my attention, thanks to the Privy Council, I am still a bit grumpy.

Fact-finders: judges compared with juries

A pivotal part of the reasoning in that case is this sentence, beginning para 18:

"It is artificial to say that Judges, while holding one view themselves, may ascribe a different view to the hypothetical jury."

The assumption is that the appellate judges will hold a view of the appropriate verdict in the first place.

It is officially known that juries do not always reach the same verdict that trial judges would have. The New Zealand Law Commission has published a study on juries: "Juries in Criminal Trials – Part Two" Preliminary Paper 37 – Volume 2 (Wellington, November 1999). There, at para 9.3 – 9.4, the authors summarise results on jury agreement and disagreement with the judge in the trials studied:

"9.3 The judge and jury were essentially agreed on the appropriate verdict in 24 out of the 48 trials. These comprised: 17 verdicts of guilty on all or most counts; six verdicts of not guilty; and one verdict of not guilty by reason of insanity. In a further 11 trials, where there was disagreement between judge and jury as to the appropriate verdict on one or more of the counts in the indictment, the jury's view appeared to be reasonable and supportable on the evidence. In most of these cases, the disagreement simply resulted from differences in the assessment of the credibility of key witnesses, but in one case the jury based its verdict on features of the evidence, clearly establishing guilt on one of the counts, which the judge overlooked. Moreover, in many of these cases, judges were in fact hesitant about their view (sometimes making a point of stating that they did not think about it during the trial), and asserted that the jury could reasonably take a different view of the facts from that which they expressed to us. Overall, therefore, a verdict which was either fully supported by the judge or supportable on the evidence was given in 35 out of the 48 trials.

"9.4 In the remaining 13 trials, five were classified as "compromise" verdicts in multiple count cases; three were classified as either perverse or questionable verdicts; and five involved fully hung juries... ." [emphasis in para 9.3 added]

There was no need for Matenga to decide that an appellate court should take on the fact finding role of a jury. But the Court thought this was required by the existence of the proviso:

"[29] Following conviction, after a fair trial by jury, Parliament has given the appeal courts an ability to uphold the conviction despite there being a miscarriage of justice in some respect. While the jury is in general terms the arbiter of guilt in our system of criminal justice, the very existence of the proviso demonstrates that Parliament intended the Judges sitting on the appeal to be the ultimate arbiters of guilt in circumstances in which the proviso applies."

The other view – the one that I suggest is traditional - is that the proviso requires the appellate court to be the ultimate arbiter of the fairness of the trial. That would involve determining whether the law was properly applied to facts determined impartially. Did the error, the miscarriage of justice, give rise to a real risk that the tribunal of fact was rendered partial? Many appeals, where the proviso could not be applied, would be concerned with trials that had not been fair. In deciding fairness, the appellate court does not have to reach its own verdict.

What is a "fair trial"?

Unfortunately, in Matenga the Court seems to have removed much of the content of the concept of a fair trial. This occurred by treating the requirement for a fair trial as something that could be satisfied notwithstanding that further issues of the substantiveness of the miscarriage needed to be decided. The risk is that this reduced concept of a fair trial will be nothing more than a trial by a lawfully constituted tribunal exercising lawful jurisdiction. That is a requirement for a "trial" but it doesn't establish that the trial was "fair".

The idea of a fair trial is important because if the trial was unfair Matenga does not require the appellate court to embark on deciding its own verdict. Yet Matenga, while acknowledging that the accused's right to a fair trial is an absolute right, does not say what a fair trial is. In cases where the trial transcript is a bulky document, appellate judges will be grateful for the opportunity to avoid its close study by deciding the appeal on fairness grounds. But how?

The good bits

It must be acknowledged that Matenga anticipates that wherever there is a credibility contest the proviso will be unlikely to be applied. That was the position in Matenga itself, and there was no detailed discussion of the contentious evidence.

"29 ... considerable caution is necessary before resorting to the proviso when the ultimate issues depend, as they frequently will, on the assessment of witnesses."

Many cases are of that nature. Many others consist of incriminating circumstances and an explanation tendered by the accused; in those the "assessment of witnesses" may focus only on the accused. Even so, Matenga suggests that there also the appellate court would exercise "considerable caution" before dismissing the appeal. So Matenga may be reserved for cases where the prosecution case is circumstantial, where the accused does not give evidence, and where the error at trial would not have prevented a fair trial. Barlow (noted here 9 July 2009) was treated by the Privy Council as an example, although it is open to question on trial fairness grounds: was the jury made partial by being given evidence which may not have been as reliable as it then appeared to be?

Final jette un brickbat

Dissatisfaction with an appellate court's conclusion that a guilty verdict was correct can arise from below (we, the people) or above (the court of second appeal, as in Matenga). Jury trials were invented to place responsibility for the verdict in the best hands. It is better that criticism should be directed at juries than at the judiciary. The jury study shows that the reasonableness of judges as fact-finders is not a given. Judges should stick to their knitting.

Decision tree or impenetrable thicket?

A difficulty with the balancing exercise described in R v Grant (noted here 18 July 2009) is that there is no indication of when an offence is sufficiently serious to make admission of the improperly obtained evidence a likely outcome.

This difficulty is illustrated in another decision delivered the same day as Grant and applying that case: R v Harrison [2009] SCC 34 (17 July 2009).

The appellant had been driving a hired car which was stopped on a highway by a police officer. The officer did not have sufficient grounds to carry out the search of the car which revealed two cardboard boxes. These contained a total of 35 kg (yes, kilograms) of cocaine.

Again, the Court split. This time the only dissenter was Deschamps J. She would have ruled the evidence admissible.

All judges agreed that the offence was very serious. How could they not? Deschamps J said the offence was at practically the highest point in the spectrum of importance of the public interest in adjudication on the merits (68). McLachlin CJ for the majority said (34) "While the charged offence is serious, this factor must not take on disproportionate significance."

This highlights the underlying forward-looking approach to protecting the repute of the administration of justice, encapsulated in Grant at (84):

" ... The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high."

Critics (and I am one) will say this undervalues the public interest in prevention of the harm caused by criminal activity. Does the breach of Charter-protected interests in Harrison really outweigh the harm to society that 35 kg of cocaine could cause?

The majority in Grant described the evaluation of interests as a "decision tree" (Grant, 86). Unfortunately they did not draw the tree for us. Had someone stolen their crayons?

To be fair, I think the appropriate model is not a decision tree but rather a list of quantities of each of the three items. The decision depends on the total of the quantities. Score for the seriousness of the official misconduct, add a score for the impact of that misconduct on the defendant's rights, and then add (or subtract, if it goes against the trend of the others) another score for society's interests in adjudication of the case on the merits. If the end result is a total that supports admissibility, then that is the decision. The problem becomes - or is revealed to be - one of anticipating total scores that will be required for admission of the evidence.

Update: The approach to the model just mentioned, a move away from a decision tree, is consistent with the Court's summary of the way Grant is to be applied in R v Lafrance, 2022 SCC 32 (22 July, 2022) at [90] (majority judgment; the minority did not need to address this point). The first two factors are to be assessed cumulatively, and then against the third.

Detention: will R v Grant work?

Having just stated a test for detention (R v Grant, last note today's date), the Supreme Court of Canada has disagreed on its application: R v Suberu [2009] SCC 33 (17 July 2009).

The 5 – 2 split decision suggests the test will be misapplied nearly 29% of the time. And the facts couldn't have been simpler. They are summarised in the headnote as follows:

"Constable R responded to a call about a person attempting to use a stolen credit card at a store. He was advised that there were two male suspects. R entered the store and saw a police officer talking to an employee and a male customer. S[uberu] walked past R and said "He did this, not me, so I guess I can go." R followed S outside and said "Wait a minute. I need to talk to you before you go anywhere", while S was getting into the driver's seat of a minivan. After a brief exchange, R received further information by radio, including the description and licence plate number of the van driven by the men who had used a stolen credit card at another store earlier that day. The description and the licence plate number both matched that of the van in which S was sitting. R also saw shopping bags between and behind the front seats. At this point, R decided that he had reasonable and probable grounds to arrest S for fraud. He advised S of the reason for his arrest and cautioned him as to his right to counsel."

Was the accused detained when R said "Wait a minute. I need to talk to you before you go anywhere"?

The definition of detention in R v Grant is purposive; it is summarised in Grant at 44, and is quoted at para 25 of the majority judgment in Suberu (delivered by McLachlin CJ and Charron J, with LeBel, Deschamps and Abella JJ):

"1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

"2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication."

Applying this, the majority held that Mr Suberu had not been detained (32 – 35). On factor (a):

"32 ... As a whole, the circumstances of the encounter support a reasonable perception that Constable Roughley was orienting himself to the situation rather than intending to deprive Mr. Suberu of his liberty. Further, as noted, Mr. Suberu did not testify or call evidence on that matter. In summary, the circumstances, as revealed by the evidence, do not suggest detention."

And factor (b):

"33 ... it is relevant to note that Constable Roughley made no move to obstruct Mr. Suberu's movement. He simply spoke to him as he sat in his van... Taken as a whole, the conduct of the officer viewed objectively supports the trial judge's view that what was happening at this point was preliminary questioning to find out whether to proceed further."

And factor (c):

"34 ... Mr. Suberu did not testify on the application, and there was no evidence as to whether he subjectively believed that he could not leave. Nor was there evidence of his personal circumstances, feelings or knowledge. ... The Officer testified that Mr. Suberu never told him that he did not wish to speak with him, and that the conversation was not 'strained'."

The dissenters, Binnie J and Fish J, did not agree with that assessment. Binnie J delivered the substantive dissent. He accepted that the test laid down by the majority (of which he was not a part) in Grant applied. The trial judge had found there was a "momentary investigative detention", and the majority should apply the deference that they had indicated was appropriate to the fact-finding court in Grant (Suberu at 57).

"56 The verbal exchange between Constable Roughley and Mr. Suberu clearly established an unambiguous police order. When Mr. Suberu walked past Constable Roughley, saying, 'He did this, not me, so I guess I can go', and Constable Roughley replied, 'Wait a minute. I need to talk to you before you go anywhere', it was a command to stay put. Constable Roughley's words were only ambiguous if one ignores the preceding remark from Mr. Suberu. Constable Roughley was replying to Mr. Suberu, who had essentially said, 'Can I leave?', by essentially saying, 'No'. It was clear to Mr. Suberu that he was not free to go "anywhere" and any reasonable person in that position would have come to the same conclusion. At that point there was, within the meaning of the test in Grant, a detention, in my view, which was unsupported at that stage by any grounds of reasonable suspicion as required by R v Mann, 2004 SCC 52 (CanLII), 2004 SCC 52, 2004 SCC 52 (CanLII), [2004] 3 S.C.R. 59. My colleagues point out correctly that Constable Roughley did not try physically to obstruct Mr. Suberu's movement but that is why this is a case of psychological, not physical, detention." [Binnie J's emphasis on the word psychological]

There is no suggestion of smugness in Binnie J's observation (61) that on his dissenting approach in Grant, which attached more importance to the police perspective, detention might not have been established here.

"61 ... It is the perspective and information of the police, not the claimant, that will often determine whether the liberty interest of the person stopped was truly engaged."

Obviously both perspectives should be considered. A person can be under detention without knowing it, or he can reasonably think he is under detention when he isn't. The former requires compliance with the person's rights because of the police purpose of collecting incriminating information, and the latter requires compliance because of the coercive nature of reasonably apprehended detention.

A new look at s 24(2) Canadian Charter

Some people can engage in three-dimensional balancing without mentioning the electrodynamics of moving bodies. They are the Supreme Court of Canada in R v Grant [2009] SCC 32 (17 July 2009).

My sarcasm should not be seen as radical disagreement. The Supreme Court has tidied up the reference to trial fairness that had clouded the decision on whether to exclude evidence that had been obtained in breach of a Charter right. This clouding arose from common law elaboration of s 24(2):

"(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute."

The Court declined to follow its decisions in R v Collins, 1987 CanLII 84 (S.C.C.), [1987] 1 S.C.R. 265; and R v Stillman, 1997 CanLII 384 (S.C.C.), [1997] 1 S.C.R. 607.

There is now to be a three-armed balancing exercise (gulp). These are: (1) the seriousness of the Charter-infringing State conduct, (2) the impact of that on the Charter-protected interests of the accused, and (3) society's interests in the adjudication of the case on its merits.

All members of the Court agreed in the result of the appeal. Deschamps J did, I suggest, propose a more rational balancing exercise. This requires two things to be balanced against each other. Doing that is at least a more manageable two-dimensional exercise. The two dimensions are: (1) the public interest in protecting Charter rights, and (2) the public interest in an adjudication on the merits.

The majority's arms (1) and (2) are able to be accommodated on one arm of the balance. That is what we do in New Zealand. The Grant factors amount to the same considerations treated in what will probably be recognised as the same way.

Few would dispute the result in Grant. The accused had been in possession of a firearm (a revolver, carried in a waist pouch) near a school. He also had some marijuana. It seems that he was only charged with five firearms offences. The most serious of those involved the element of trafficking, which was also discussed in this appeal. It was held, unanimously, that the circumstances did not amount to possession of the firearm for trafficking (transfer to another person), and the appeal against conviction for that offence was allowed. The other convictions were upheld.

The decisive factor is the proximity of the armed accused, at the relevant time, to a school. That made the public interest in adjudication on the merits outweigh the factors on which the accused relied: his arbitrary detention, breach of his right to counsel, and unreasonable bodily search. Those breaches arose from absence of adequate grounds, but the police had acted in good faith, and the accused was not subjected to gratuitous unpleasantness.

The meaning of "bring the the administration of justice into disrepute" was elaborated (68):

"The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute."

The approach to derivative evidence was also clarified. Difficulties with this sort of evidence arise when there is some attenuation of the breach of the accused's rights: when does the breach no longer outweigh public interests in admission of the evidence?

Inevitability of discovery of the evidence is no longer determinative (121).

"[122] Discoverability retains a useful role, however, in assessing the actual impact of the breach on the protected interests of the accused. It allows the court to assess the strength of the causal connection between the Charter-infringing self-incrimination and the resultant evidence. The more likely it is that the evidence would have been obtained even without the statement, the lesser the impact of the breach on the accused's underlying interest against self-incrimination. The converse, of course, is also true. On the other hand, in cases where it cannot be determined with any confidence whether evidence would have been discovered in absence of the statement, discoverability will have no impact on the s. 24(2) inquiry."

That analysis overlooks the temporal and contextual approach in R v Wittwer [2008] SCC 33 (noted here 6 June 2008), a case not cited in Grant.

The treatment of the right to a fair trial is rather superficial: no attempt is made to develop its meaning. Instead (65):

" ...It is difficult to reconcile trial fairness as a multifaceted and contextual concept with a near-automatic presumption that admission of a broad class of evidence will render a trial unfair, regardless of the circumstances in which it was obtained. In our view, trial fairness is better conceived as an overarching systemic goal than as a distinct stage of the s. 24(2) analysis."

Grant, in rejecting the relevance of trial fairness as a balancing factor, is consistent with the recognition of the right to a fair trial as an absolute right. However, given its absolute nature, something more precise could have been said about it. (Here is my effort to draw a tree based on the Grant approach.)

From leaf to long knife

Another glimpse into the picturesque life of Jamaicans: Jackson v R (Jamaica) [2009] UKPC 28 (07 July 2009).

Lord Rodger delivered the judgment of the Judicial Committee, in a tone that strikes me as darkly humorous. I might be quite wrong about that, as, after all, this was a tragic murder and a long delayed meritorious appeal.

The events started with the falling of a ripe leaf from an ackee tree.

Image from ackee-tree.com

The resulting struggle involved machetes or cutlasses, a shovel, an axe and probably a lead pipe. Shortly after that, someone was "juked" (stabbed) in the back with a cutlass – but this was not particularly serious. The final events, in another incident soon afterwards, involved beatings with cutlasses, and iron pipe, and a fatal stab with a long knife.

The stabber joined in during the attack by two others; three people – the appellants - were charged and convicted of the murder. The only apparent injury to the victim – apart from some blood on his leg (a witness had said "It look like he get a lick … I saw, like when you lick somebody – like when a person get a hearty lick and a settling of blood here") - was the stab wound, so it was obvious that the beatings had not been intended to cause significant injury. This, then, was a case of extended secondary liability as far as two of the appellants were concerned, and of identity for the alleged stabber.

The law had been settled in R v Rahman [2009] 1 AC 129, 165, para 68 (noted here 3 July 2008). The trial judge did not have the advantage of reading that decision. His direction to the jury was defective; Lord Rodger at 15 cites this example:

"Is Dane Miller talking the truth when he said that these men and some others draw out himself and his father, his father ran and fell, one of them stabbed him in the chest: that is the case? If you believe that it happened that way, then all three of them will be guilty of murder, all three."

The Board applied Rahman:

"14. The facts that they were using the flat of the blades and that so little by the way of injury to the deceased was actually inflicted by those blows make it difficult to draw the inference that the attackers (apart from the one who carried out the stabbing) intended to cause serious bodily harm or that any individual attacker would have realised that any other participant might kill or intentionally inflict serious injury on the deceased. While it is therefore unnecessary for the Board to reach a conclusion on the point, their Lordships incline to the view that, given the way that only the flat of the machete blades was being used, the long knife was indeed a "more lethal weapon" and the stabbing was "fundamentally different" from anything foreseen by the other participants."

In the absence of any evidence that the two assailants (not the stabber) intended serious injury or knew that the third person intended serious injury, there was no occasion for a retrial: the convictions of those two appellants were quashed. They had spent at least five years in prison.

The third appellant denied that he was the stabber, and the Board decided that the judge had not differentiated sufficiently between the three accused, all of whom had been represented by the same counsel. The jury might have convicted him on the basis that all three were together, without properly assessing the probative value of the eyewitness who identified him as the stabber. His conviction was quashed and his case remitted to the Court of Appeal for a decision on whether there should be a retrial.

The appellate jury

New Zealand's new approach to the proviso has been revealed by the Privy Council. The Board fearlessly disclosed parts of the Supreme Court's decision in Matenga v R [2009] NZSC 18 which has been embargoed pending a retrial. The new approach is set out for us in R v Barlow [2009] UKPC 30 (8 July 2009).

The Supreme Court of New Zealand has adopted, with some modifications, the approach to the proviso taken by the High Court of Australia in Weiss v R (2005) 224 CLR 300 (noted here 16 January 2006). For reaction to Weiss in Australia, see “The Problematic Proviso: the vice of Weiss” (2007) 140 (Autumn) Victorian Bar News 32 by Phillip Priest QC, who comments “Weiss caused a shockwave to sweep through the ranks of criminal appellate lawyers and judges. The High Court radically altered the ambit of the proviso, sweeping away decades of accepted wisdom.”

Two departures from the Weiss approach are established in Matenga (according to Barlow).

The first departure from Weiss

This has several aspects. Not all errors at trial qualify to be called miscarriages of justice. Errors that "plainly" could not have affected the result of the trial don't count as miscarriages in the relevant sense. "A miscarriage is more than an inconsequential or immaterial mistake or irregularity." (para 30 Matenga, quoted in Barlow at 19)

If the error counts as a miscarriage in the required sense, namely that it was capable of affecting the outcome of the trial, the next question is whether it actually did have that effect "in reality": (Matenga 31)

"The court may exercise its discretion to dismiss the appeal only if, having reviewed all the admissible evidence, it considers that, notwithstanding there has been a miscarriage, the guilty verdict was inevitable, in the sense of being the only reasonable possible verdict, on that evidence. Importantly, the Court should not apply the proviso simply because it considers there was enough evidence to enable a reasonable jury to convict. In order to come to the view that the verdict of guilty was inevitable the Court must itself feel sure of the guilt of the accused. Before applying the proviso the Court must also be satisfied that the trial was fair and thus there was no breach of the right guaranteed to the accused by s 25(a) of the Bill of Rights".

The second departure from Weiss

This is quoted in para 20 of Barlow, from para 33 of Matenga:

"The High Court [of Australia in Weiss] said that the appellate court's task under the proviso was to be undertaken on the whole of the record. That is correct. However, it expressly included in the record the fact that the jury has returned a guilty verdict. Whilst the verdict may indicate the jury's view on some question unrelated to the miscarriage, the appeal court must form its own view on whether a finding of guilt was, notwithstanding the miscarriage, the only reasonably possible verdict."

 What about R v Bain?

In R v Bain (New Zealand) [2007] UKPC 33 (noted here 11 May 2007) the Board declined to apply the proviso, emphasising (para 25) that the appellate court "is not the ultimate arbiter of guilt, save in the practical sense that this is the effect of applying the proviso, or ruling that the new evidence could not reasonably have affected the result."

In Barlow (21) the Board was coy about the whether the Matenga approach was different, but it thought the result in Bain would have been the same under Matenga:

"Not having been addressed by counsel on the point, their Lordships express no view as to whether and, if so, to what extent, there is a conflict between the approach prescribed by the Supreme Court in Matenga and the approach adopted by the Board in Bain. But they are satisfied that, even if the approach in Matenga had been applied, having regard to the new evidence in that case, there would have been no room for the application of the proviso and the result of the appeal would have been the same. However that may be, in the absence of any submissions to the contrary, and without reconsidering the point for itself, the Board considers it appropriate to apply the approach of the Supreme Court in Matenga to the interpretation and application of section 385(1)(c) and the proviso."

The Board showed no sign of eagerness to apply Matenga in all the legal systems it serves.

The trial fairness requirement

Upon identification of qualifying error or errors, the application of the proviso is addressed by first asking whether the trial had been made unfair (Barlow 58). Fairness is judged in the light of the proceedings as a whole. The test is whether the departure was such as to go to the root of the proceedings, in the sense used in Wilde v The Queen (1988) 164 CLR 365, 372, per Brennan, Dawson and Toohey JJ and approved in Howse v The Queen [2005] UKPC 31, [2006] 1 NZLR 433 (PC).

If the court is satisfied that there was no such unfairness, it proceeds to the next question, whether the error may have actually affected the result of the trial.

A potential inconsistency with the new role of judicial fact finding is the inquiry into fairness, which necessarily requires determining whether the miscarriage could have caused the jury to misapply the law or to reason wrongly or to give improper weight to items of evidence. This goes back to the former approach of asking how the jury, not the judges, would have decided the issue.

Appellate judges as jurors

So, on appeal the judges do not try to guess what a jury would have decided. They have to assess the whole of the admissible evidence and decide whether they are satisfied beyond reasonable doubt that the conviction is correct.

Barlow illustrates the way the Board embarks on this task. It used the judge's summing up to the jury as a convenient summary (this was a fresh evidence appeal, not a case where the summing up was alleged to be defective), plus obvious circumstances that the defence relied on. The approach was not a minute and detailed examination (in the judgment) of the arguments for and against every possible inference (that was the approach that the Court of Appeal had wrongly taken in Bain), but instead the Board noted four "very obvious aspects" of the prosecution case with which it was "particularly struck" (67 – 71).

The new approach to the proviso will expose appellate judges to criticism by people who disagree with their evaluation of the evidence. It can be seen as a qualification on the right to trial by jury: you have the right to jury trial, but if that trial is not conducted according to law in a material way, your guilt or innocence will be determined by judges on appeal. There need be no second attempt to give you a lawful trial.

So when will retrials be ordered? Given that they are now fact finders, if the appellate judges have a reasonable doubt about the appellant's guilt, why don't they order an acquittal? Ordering a retrial looks like double jeopardy. In Barlow that issue did not arise.

Friends at law

For reasons not to be suspicious of barristers and judges, see Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72 (3 July 2009).

The case is about how to decide when apparent judicial bias exists. Although a civil case, it is relevant to criminal law and the accused's right to a fair trial.

It is a reminder of what the independent bar is all about. Barristers are independent of their clients, as well as from anything that could deter them from their task of ensuring that the judicial process is correct in law.

Judges share that objective, so bench and bar are engaged in the same task. This means that judges couldn't care less which barrister wins or loses, and barristers couldn't care less (surprising though this may seem) whether their clients win or lose. It is the process that matters.

Inevitably, there will be times when judges know barristers in cases before them quite well. They may even share business interests. That is completely irrelevant in the courtroom. But does it look OK?

The impression gained by the fair minded observer is the touchstone. She (for she is apparently woman: Helow v Secretary of State for the Home Department [2008] UKHL 62, noted here 23 October 2008) will be aware of these characteristics of the judicial process: Saxmere para 6 per Blanchard J. These are the points made in Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 135 ALR 753, 767 (Fed CA), quoted by Blanchard J at para 7 of Saxmere.

She will be aware of the judicial oath and the obligation of judges to hear the case that has been allocated to them and not to pick and choose which case they will hear. She will remember that the party seeking to overturn a decision for reasons of apparent bias may well be the least objective observer of all. At the same time, she will realise that judicial protestations of absence of influence are not decisive, as unconscious bias may have operated. Before she perceives apparent judicial bias, she will need to identify what it is that might lead a judge to decide a case on other than its legal and factual merits, and she must be able to point to a logical connection between that thing and the feared deviation from deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at para 8.

[Update: this judgment has been recalled and the orders made in it set aside, and the case was remitted to the Court of Appeal for rehearing: [2009] NZSC 122 (27 November 2009). This was because the Supreme Court had not been made aware of all the matters relevant to apparent bias, and if the Court had known of them it would have concluded that apparent bias was established.]

“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.