Current purpose or original meaning: interpreting the US Constitution

Justices Breyer and Scalia debate Constitutional interpretation! Video clip available here.

Possession and internet files

The meaning of possession of electronic files has been established by the Supreme Court of Canada in R v Morelli [2010] SCC 8. This case concerned allegedly pornographic internet files. Central to the requirements for possession is the concept of control.

The Court split 4-3. The minority made much more use of case law than did the majority, and the majority relied more on fundamental principles. The majority held that knowledge is a requirement for control, and that control is not constituted by the mere viewing of an internet file. Control requires knowingly acquiring the underlying data file and storing it in a place within one's control. The mere automatic caching of an internet file does not of itself amount to storing it unless that caching occurred with knowledge that the file was retained.

The minority regarded control as existing when the accused willingly took or maintained the use or benefit of the material, so that it did not need to be on his computer's hard drive.

In this case a search warrant had been obtained without sufficient grounds (as held by the majority) and the evidence had been obtained improperly. Applying R v Grant [2009] SCC 32 the majority held the evidence to be inadmissible.

Evidence of fingerprint matches

For an interesting article on how fingerprint evidence should be given, see New Scientist, 22 March 2010 , "Fingerprint evidence to harden up at last" by Linda Geddes.

The Waihopai spy base case

In this site, which is aimed at the decisions of leading appellate courts, I do not usually comment on trials. However, today our little nation is abuzz with discussion of the implications of what the media call the Waihopai spy base case.

Some people damaged some big plastic domes that cover secret communications facilities. I am vague on this description, but for me the most interesting thing about this case is the revelation that the big white domes can be slashed with a knife to expose the underlying things. Aerials and whatnot. The people were put on trial and yesterday were acquitted by a jury of offences like burglary and wilful damage.

What was their defence? That is not really the point. What matters is that a jury decided the case, and acquitted when a judge almost certainly would have convicted.

The case illustrates the role of juries in bringing community standards to the law. The common law's origin is the customs of the realm, and those customs were based on what people thought was reasonable. If the community thought that what a person believed and what he did were reasonable, then he would not be held to be acting illegally. You can apply the same criteria today to the criminal law. Although offences are now statutory, their definitions will always - except for some minor offences of absolute liability - be such as to permit acquittal of people who have held reasonable beliefs and who have acted reasonably in pursuit of those beliefs. Sometimes the law is more generous, allowing a defence if the belief was unreasonably held as long as it was honestly held (for example, self defence).

The best arbiter of what a community believes to be reasonable is a jury. This is recognised by courts (see the discussion by Heydon J in AK v Western Australia [2008] HCA 8 at paras 90-98) and by law reform bodies (see the New Zealand Law Commission report "Juries in Criminal Trials" para 78). There are limits to the extent to which juries should be admired (as I have suggested). Even so, if you say the jury was wrong in this case, you have to show that community values are such that what the defendants did was, in the context of what they reasonably believed, unreasonable.

We disagree, but we won’t say why

The majority in Morgan v R [2010] NZSC 23 (16 March 2010) do not explain why they reach the opposite conclusion to that of the dissenting Chief Justice. All Justices agreed that the issue came down to whether there was unfairness in admitting the contested evidence. The Chief Justice explained in detail why she thought there was unfairness. In the absence of a detailed response by the majority we are left feeling some disquiet about the soundness of the majority's conclusion.

Here the contested evidence was a statement previously made by a witness who was now hostile to the extent that he claimed not to remember the events in issue, and the making of any previous statement about them.

In contrast to the earlier position, under the Evidence Act 2006[NZ], any statement that is admissible is admissible to prove the truth of what it asserts. Where a witness is declared hostile, a relevant previous statement by that witness can become admissible. It may be elicited in cross-examination by the party that called the witness: s 94, or the Judge may permit such cross-examination even if the witness is not hostile: s 89. If the witness is hostile to the extent of refusing to be cross-examined, it is arguable that he is not a "witness" within the definition of that term, and his prior statement is hearsay. But even if it is not hearsay, fairness should require reasonable assurance that the statement is reliable when the s 8 discretion to exclude it is being considered.

The matter comes down to this (as expressed in the majority judgment):

"[41] Parliament has legislated to make previous statements of a hostile witness admissible as proof of their contents without adoption, presumably on the basis that the witness will be subject to cross-examination. The reality of that premise may differ from case to case. Parliament's policy decision should not be undermined by too ready a resort to s 8. It certainly should not be undermined on any generic basis. The ultimate question will always be whether the evidence is unfairly prejudicial in all the particular circumstances of the case, of which opportunity for realistic cross-examination will always be important."

The majority considered that in this case the witness had implicitly adopted his previous statement when he was cross-examined by the prosecutor. But this was on the basis of the last two questions in the critical passage, whereas the Chief Justice put these in a larger context and concluded that the witness had consistently refused to acknowledge the previous statement. Because she gave more detailed reasons, she is more convincing on this point.

The majority held that difficulties that might have arisen if defence counsel had attempted to cross-examine the witness on the prior statement were not such as to give rise to unfairness. No elaboration of that was offered. So we don't know why it was fair to admit the statement. The Chief Justice explained her conclusion by pointing out that in this case there was no other evidence sufficient to provide a reasonable assurance that the prior statement was reliable. The majority alluded to "a number of circumstantial features pointing to Mr Morgan's involvement, established elsewhere in the Crown's evidence" (para 45).

Still, the case is authority for, or illustrates, the following points: statements are admissible for their truth; admissibility is subject to s 8; there is a need for particular care to avoid unfairness when there can be no cross-examination of a hostile witness; the judge should hear evidence in voir dire before ruling on admissibility and should include an exploration of the witness's willingness to be cross-examined.


A significant omission from the factual narrative is whether the witness, a cell-mate of the accused, knew what the accused was charged with at the time he reported to the police that the accused had confessed. The Court of Appeal judgment summarises the facts ([2008] NZCA 537):

"[27] Mr Roskam shared a cell with the appellant shortly after the appellant was remanded in custody. Mr Roskam said in a statement to the police that he and the appellant had been watching a programme called “Police 10-7” which featured the robbery at issue in the present case. The appellant became very excited, and subsequently (some days later) told Mr Roskam that he had committed the robbery."

In the absence of this important fact, I will assume that the cell-mate knew, at the time he reported the confession, what the accused was charged with.

On that basis, the majority judgment contains a logical fallacy. It is fundamental but easily overlooked:

“[45]  One of the matters that will have significance in the s 8 assessment is the view that the Judge forms of the inherent reliability or otherwise of the statement in issue.  In this case Mr Roskam’s statement that Mr Morgan had confessed to him, in an apparently spontaneous manner, his involvement in the robbery was substantially supported by a number of circumstantial features pointing to Mr Morgan’s involvement, established elsewhere in the Crown’s evidence.”

This was not a case where the alleged confession contained details that only the offender could have known. It amounted simply to the accused, watching a news item about the robbery on television in a cell with Mr Roskam, allegedly yelling out “yeah, yeah!”, getting excited, and saying it was him (see para 8, the passage from the prosecutor’s cross-examination of Mr Roskam). Therefore, the “number of circumstantial features” that the majority say supported the reliability of the statement in issue (that is, Mr Roskam’s statement that the accused confessed) were not in the alleged confession but were indicative of the accused’s guilt. But here the majority confuse proof that the alleged confession had been made with proof that the alleged confession was true. The latter is not a substitute for the former. Just because a person may be guilty does not mean he is likely to have confessed.

The question is, "does this evidence, the confession, exist?" The majority say that if the confession existed it would fit with other evidence against the accused, therefore the confession existed. You can see the circularity. If the confession did exist, then the other evidence would indeed be useful in assessing whether it was true; but we have not got to that stage yet. To decide whether the confession existed, we would have to assess the credibility of the witness and that would include examining his honesty and whether there was any incentive for him to lie. He was endeavouring to retract his evidence, and that would be a relevant factor too. If the evidence of the existence of the confession was of sufficient value to have a tendency to prove that the confession existed, then it would be relevant evidence. Then its probative value would have to be assessed, and weighed against its unfairly prejudicial effect. The probative value could be assessed in Bayesean terms as a likelihood ratio: the probability of the witness saying that the confession existed, on the assumption that the accused was guilty, compared with the probability of him saying it existed, given that the accused was not guilty. If the witness had low credibility, he might have been almost equally likely to say that the confession existed, whether or not the accused was guilty. The likelihood ratio, or the probative value of his claim that the confession existed, would be very small. The risk of unfair prejudice would outweigh the probative value, because the jury would be likely to attach too much weight to the witness's claim that the confession existed.

After conscientiously advising care in the application of s 8, the majority misapply it to the probative value of the confession instead of to whether the confession existed. It is difficult to accept that a judgment flawed in this way can enhance the standing of the Court.

Of course, if Mr Roskam did not know what the accused was charged with, the other evidence of guilt would support his credibility. If that fact had existed, however, it would have been highlighted in the judgments.

 

People interested in the real politik of law will note the distancing between the Chief Justice and Wilson J, and the apparent collegiality between Wilson J and the other judges whose judgment he delivered (Blanchard, Tipping and McGrath JJ). Ho hum. And flash forward! "I think, but dare not speak."

Small, but perfectly formed – judicial acceptance of LCN DNA analysis

Updating the forensic use of LCN DNA analysis: R v Wallace [2010] NZCA 46 surveys developments and refers to R v Reed & Garmson (2009) EWCA Crim 2698. Brief mention of Bayes' Theorem, led the Court in Wallace to the following "insight" (para 87):

"As a matter of logic, what all this means for criminal trials is that with low level DNA profiling it is not so much a question of the particular technique or method. This can, if rather painfully, be explained to judges and jurors. It is the philosophy of the approach that is important: the uncertainty of the method of transfer does not diminish the fact of the matching DNA profile for the former does not invalidate the latter. The method of transfer however is of great moment for the court, whilst it does not necessarily concern the scientist."

That is to say, a match is a match is a match, but the court needs to know why there is a match.

The Reed & Garmson dicta were summarised in Wallace (para 97):

"Three points can be made about this decision. First, it is apparent that the Court of Appeal of England and Wales accepted that at least under defined conditions Low Template DNA can form admissible profiles, capable of reliable interpretation. Indeed, during the course of the Reed & Garmson appeals both appellants abandoned their general attack on the reliability of Low Template evidence using the LCN process. Second, the Court of Appeal of England and Wales prescribed what might be called a "safety" floor limit. Above the range described by that Court as being a stochastic threshold of 100 and 200 picograms results can be so produced which are capable of reliable interpretation. Third, in the view of that Court a challenge to the validity of the method of analysing DNA by the LCN process should no longer be permitted where the threshold limit is exceeded." [the Court's emphases]

There may be some circumstances in which whether there is a match can be an issue, but these are limited (on current understanding) to cases where the amount of DNA from the crime scene was so small – around 100 to 200 picograms (1 picogram = a millionth of a millionth of a gram) that random errors (called stochastic effects) could cast doubt on whether a match existed (applying Reed & Garmson).

In Wallace it was argued for the appellant that it was incorrect to regard the relevant sample of DNA from the scene as coming from a mixed source, and therefore it was wrong to conclude that it did not exclude the accused. This was an issue of interpretation and the evidence supporting the appellant's view was not in this case sufficient to cast doubt on the correctness of the verdict. The Court emphasised that DNA evidence must always be evaluated in the context of the other evidence in the case. In Wallace the DNA evidence which was the focus of this appeal was not significant in that context.

I should add that I have summarised the facts in Wallace a little inaccurately in the interests of simplicity. The DNA just referred to was actually alleged to have been from the victim, and was found on a metal bar, allegedly the murder weapon, which the prosecution claimed to link to the accused.

Another sample of DNA was from the victim’s shoelace, and was allegedly from the accused. However this latter DNA was (para 33, 38) thirteen times more likely to have come from the accused or a paternal relative as from any randomly chosen New Zealand male. The trial court, as emphasised by the Court of Appeal, made it clear to the jury that this evidence did not prove the identity of the accused as the murderer, but it was merely consistent with the prosecution case. In reality – and contrary to the prosecution’s disavowal at trial - this DNA evidence was highly probative of guilt.

To say that the DNA was thirteen times more likely to have come from the accused (or a paternal relative) than from a randomly selected male means that if the likelihood of a random match is x, the likelihood of a match with the accused or such relative is 13x. The Bayes likelihood ratio is 13. Despite the protestations to the contrary at trial, this evidence was highly probative of guilt.

The appellate court needed to be satisfied that the other evidence in the case proved beyond reasonable doubt that the accused was the murderer. This is because, in Baysean terms, if the prior probability of guilt was only 0.90 (let’s assume this is not proof beyond reasonable doubt), the DNA on the victim’s shoelace would have increased that to a probability of guilt of 0.99. That is, this DNA evidence would have removed a reasonable doubt if the other evidence only proved guilt to a probability of 0.90. It would have been highly probative and important to the prosecution case, and errors in its interpretation would have been significant.  

Criminal Procedure Simplification

For my comments on aspects of the New Zealand Law Commission's Criminal Procedure (Simplification) Project – Reforming Criminal Procedure discussion paper, click here.

When fallacies don’t matter

The United States Supreme Court has discussed the prosecutor's fallacy in McDaniel v Brown [2010] USSC No 08-559, 11 January 2010. After several different explanations of what this fallacy is, the Court held that in this particular case the probabilities were such that even on the numbers most favourable to the accused (Mr Brown) the jury had not been wrong to convict him. The case concerned DNA so of course – to put it in Bayesean (or, if you like, Bayesian) terms which are clearer than those used by the Court - in the absence of an innocent explanation for his DNA being at the scene the denominator of the likelihood ratio was small, the ratio large, and the probative value of the evidence large.

This illustrates the point that errors in reasoning do not always matter. Hopefully this will not encourage expert witnesses to avoid accurate thinking.

Overview (4) – Reasoning with uncertainty

We can be sure about very little.

"'We reason rashly and at random,' says Timaeus in Plato, 'because our judgements, like ourselves, have in them a large element of chance.'"

Montaigne, Essays, Book One: Chapter 50, above p 130.

Uncertainty can increase the closer something is scrutinised. Our quotidian lives would be impossibly disrupted if we indulged in a Plato-like thoughtfulness, so we normally come relatively untroubled to our settled beliefs. Forensic fact-finding is fraught with difficulties that it is necessary to ignore if decisions are to be reached. There are even studies that suggest that the demeanour of a witness is not a reliable guide to his truthfulness; you may as well toss a coin. Is the only instruction a judge can sensibly give a jury the familiar exhortation to "decide what evidence you accept and what you reject" and "use your common sense"?

Some efforts to increase the accuracy of judicial fact-finding have called in aid mathematics. This approach can be given a label of convenience, but the danger is that doing so will suggest that these efforts are just passing fads. Peter Tillers, an academic from the USA, calls them the New Evidence Scholarship, and identifies three generations of this:

"The first generation of the New Evidence Scholarship emphasized the heuristic uses of mathematical analysis of evidence; it emphasized that numbers (especially as used in probability theory) could illuminate the logic and structure of factual inference in general and of particular problems of factual inference.

"The second generation of the New Evidence Scholarship focused on mathematically-laden problems of scientific evidence (e.g., DNA evidence) and on problems of factual inference that seem tractable to statistical analysis.

"The third generation of the New Evidence Scholarship (NES) also uses mathematical argument and analysis. But this variant of NES does not require or expect consumers of mathematical analysis to do computations. Instead, NES-3rd uses mathematics and computations to develop tools for deliberation about inference, tools that do not require or expect the user of the tool to do computations."

The growing recognition of the pitfalls of ignoring the logic of mathematics, and particularly the logic of probabilities, coupled with appreciation of the impracticality of requiring judges and jurors to apply complex formulae in their deliberations, is the unifying theme of this scholarship.

Each of these applications of mathematical reasoning is exemplified by cases discussed here. Sometimes mathematics is ignored when it would have been of assistance, as in Brown v Attorney-General 6 March 2005 and also Wi v R mentioned in update to note for 4 July 2008. Refinement of DNA techniques has been accompanied by recognition of increased risks of contamination and of falsely positive results: R v Hoey 2 January 2008. Applications of Bayes' Theorem have pointed to the correct way for probabilistic evidence to be given, and also to how reasoning with conditional probabilities can be fallacious: R v Bain 8 June 2009. I have collected some observations on reasoning with probabilities in a draft paper available here.

Some criticism of the use of mathematical reasoning is advanced on the basis that, since the values of the variables are a matter for dispute, the equation containing them is of no use. More moderate criticism, of the same kind, acknowledges that the equations may have limited use, although it makes too much of claimed difficulties in calculating the probability values. The latest developments in this branch of evidence are directed at meeting the points made by such critics.

I give the last words to clever old Montaigne:

" The uncertainty of my judgement is so evenly balanced in most cases that I would willingly refer the decision to a throw of the dice; and, after giving much thought to our human weakness, I observe that even sacred history has left us examples of this custom of leaving chance and fortune to make the decision in matters of doubt: 'and the lot fell upon Matthias' [Acts I, 26]."

Montaigne, Essays, Book Two: Chapter 17, above p 216.

Overview (3) - Balancing

Application of rules is the least interesting part of judicial decision making. Vastly more intellectually absorbing is the process of reaching a decision by balancing of conflicting rights, values or interests.

"... balancing introduces order into legal thought. It requires the judge to identify the relevant values; it requires the judge to address the problem of the relative social importance; it requires judges to reveal their way of thinking to themselves, as well as to others. It facilitates self-criticism and criticism from the outside. As Judge Coffin wrote:

"Open balancing restrains the judge and minimises hidden or improper personal preference by revealing every step in the thought process; it maximises the possibility of attaining collegial consensus by responding to every relevant concern of disagreeing colleagues; and it offers a full account of the decision-making process for subsequent professional assessment and public appraisal. [See Frank M Coffin, "Judicial Balancing: The Protean Scales of Justice," 63 NYULRev 16, 25 (1988).]

" Indeed, balancing is a way of thinking; it is a conceptual mentality; it is a process that leads to decision. It requires dealing with how genuinely problematic is the situation created by conflicting values. [See Frank Michelman, "The Supreme Court 1985 Term – Foreward: Traces of Self Government," 100 Harv L Rev 4, 34 (1986).]"

Aharon Barak, The Judge in a Democracy (2006), p 173.

Relatively simple balancing can occur where one person's interest is weighed against another's. An example is the determination of whether the actus reus of disorderly behaviour includes the act of singing outside the complainant's house, on the street, in daytime, and intentionally causing the complainant, a night shift worker, to lose sleep: Brooker v R 4 May 2007. Balancing here was controversial: two judges applied balancing and two applied rights limitation; see further my note dated 4 May 2007. Balancing also occurs where the issue is media access to court proceedings: Rogers v TVNZ 19 November 2007.

A more orthodox environment for balancing is the decision whether evidence should be ruled inadmissible because it was obtained improperly. A case may require two balancing exercises: one to determine whether there had been an impropriety in the obtaining of the evidence, and, if there had, the other to determine whether that evidence is admissible: R v Singh 2 November 2007.

The exercise of anticipating the result of an admissibility decision can be approached by lawyers in different ways: by studying how judges have arrived at such decisions, or by studying the results of those decisions and identifying the pattern of precedents. A statute may tell judges what factors to take into account, and what the criterion for decision is (for example, whether exclusion of the evidence is proportionate to the impropriety (s 30(2)(b) Evidence Act 2006[NZ]). Anticipating the weight that will be given to each factor and where the balance will rest is not easy without reference to precedent, and for this reason lawyers may more easily focus on the results in similar cases.

The Supreme Court of Canada has offered an explanation of the way judges should reach their decisions in balancing cases involving improperly obtained evidence: R v Grant 18 July 2009, and has illustrated it in R v Harrison 19 July 2009. The conceptual model of the decision was described by the Chief Justice as a "decision tree". It has difficulties which are reflected in its three-dimensional structure. In New Zealand there has been a transition from the pre-Bill of Rights Act 1990 spectrum model to a period of rule application during the early days of the Bill of Rights, to a discretionary approach now enacted as the abovementioned s 30 Evidence Act 2006. The current balancing is two dimensional and precedents can easily be placed on a diagram which makes predictions of results a relatively simple task. At least, it's a simple task for people who are not afraid of diagrams.

Another form of judicial balancing occurs where a decision has to be made about whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on the proceeding. This balancing is familiar throughout the jurisdictions that have laws of evidence (not including, for example, the civil law countries of continental Europe, although a similar balancing is seen in Germany: Gafgen v Germany 3 July 2008). It is not an easy weighing exercise on which to construct a conceptual model as in each case the judge's perception of the risk of prejudice is very much a personal matter. There was unanimity that certain evidence should be excluded under this weighing exercise in the New Zealand Supreme Court in Bain v R 12 June 2009, but, before the case got to the five judges of that court, four judges had held the disputed evidence admissible. It is arguable that this weighing exercise is misconceived because it leaves room for significant risk of prejudice if the probative value is assessed as high. The decision could better be put as whether admission of the evidence would create an unacceptable risk of unfairness. That would avoid weighing altogether.

Overview (2) – Standards of proof

[I have seen that this is an oft-visited posting. For revision and updates, check the link to the introductory essay. Other entries this month are compiled there. Where a case is named with an associated date, that date refers to another posting on this site.]

The expression "standard" of proof refers to the level of proof required, and is not to be confused with the expression "burden" of proof, which refers to which side has to prove an issue. The usage is, who has the burden, and to what standard?

There are at least two standards of proof in criminal law: proof beyond reasonable doubt, and proof on the balance of probabilities. Sometimes more standards are recognised: the standard of a reasonable doubt, as where a presumption applies, rebuttable by proof to the contrary (this is sometimes called, confusingly in the light of the usage I have set out above, the evidential "burden"); and a flexible approach to the balance of probabilities, where many standards or levels of proof might be recognised as appropriate depending on the seriousness of the issue. As to proof of a reasonable doubt, this is not recognised as a standard in New Zealand (R v Hansen, 19 September 2005 and 20 February 2007) but it is in the United Kingdom (R v Lambert 19 September 2005, 12 December 2008, and s 2 Drugs Act 2005[UK] which is yet to be brought into force by a Commencement Order). Other standards are sometimes referred to on appeals, where the appellant must satisfy the court that in the absence of an error at trial there was a "real chance" of a more favourable verdict. This "real chance" is less than on the balance of probabilities (Chamberlains v Lai 11 September 2006).

How do we know when a standard has been reached? At this point Montaigne again intrudes his mischievous little pen:

"'As the scale of the balance must necessarily sink when weights are placed upon it, so must the mind yield to clear proof' [Cicero, Academica, II, 12]. The emptier a mind is, and the less counterpoise it has, the more easily it sinks under the weight of the first argument. That is why children, the common people, women, and the sick are particularly apt to be led by the ears."

Montaigne, Essays, Book One: Chapter 27, above pp 86 – 87.

Naughty Michel.

Courts are notoriously unwilling to assist juries by elaborating on the meaning of "beyond reasonable doubt". This is shameful. It is one of the law's little dishonesties that favour the prosecution. It is said that it is no use likening the standard to a given probability of proof, because people disagree on what the probabilities are. This is daft. The variation in what people think proof beyond reasonable doubt equates to in probabilities is astonishing (R v Wanhalla 25 August 2006). If people have not even a general idea of what beyond reasonable doubt means, how can they decide whether proof meets that standard?

Aversion to mathematical analogies is one of the law's shameful inadequacies. It reflects the stage in school when pupils, at age about 14, are divided into "arts" and "science" streams. Lawyers and judges are usually from an arts background, and have been brought up to think they cannot achieve an understanding of mathematics or science. At the same time, and ironically, lawyers and judges pride themselves on their logical reasoning. It will be interesting to see what moves are made in this area by the High Court of Australia now that it has a Chief Justice (Bob French) who has a science background. (Naturally Australian counsel are alert to the need for change: my thanks to Jeremy Gans for drawing my attention to Clarke v R [2009] HCA Trans 336 (11 December 2009) in which special leave to appeal was refused by Crennan and Bell JJ.)

Areas of uncertainty exist. There is some doubt as to whether a standard of proof applies to a "risk", such as the risk of danger to the public if a person is released on bail (O v Crown Court at Harrow 31 July 2006) or on parole (Re McClean 19 July 2005). There is also doubt as to what, if any, standard of proof applies to proof of similar facts (R v Perrier and R v Holtz 14 October 2004; HML v R 26 April 2008). Sometimes the choice of standard appears inappropriate, such as the application of only the balance of probabilities to proof that evidence tendered to the court was not obtained by torture in another country (A v Secretary of State for the Home Department 9 December 2005), and there is still work to be done on what if any standard applies to the likelihood of unfair trial or of inhumane treatment in a foreign jurisdiction if the person is extradited (Gomes v Trinidad and Tobago 1 May 2009).

It seems intuitive that serious issues should require proof to a higher standard than issues that are less serious. This leads to difficulties where the law insists that a standard, usually the balance of probabilities, is fixed. The Supreme Court of Canada does not acknowledge that the standard is flexible, and it maintains that the degree of caution with which proof is assessed is the same whether the issue is serious or less so: FH v McDougall 19 October 2008. The opposite position is taken in the Strasbourg court: Saadi v Italy 11 December 2006, and this is probably the same as that taken in New Zealand: Z v Dental Complaints Assessment Committee 25 July 2008.

Another area where discussion of standard of proof has occurred is the fundamental requirement for evidence to be "relevant" before it can be admissible. Relevance usually means having a tendency to prove a matter of consequence to the determination of the proceedings. Variations on that formula occur, but the essence is "a tendency to prove". Serious discussions occur in the academic literature about what this means. What if an item of evidence has a small tendency to prove one thing, but a greater tendency to prove another? Is it relevant as evidence of the first thing? What if the item of evidence has only a very slight tendency to prove a matter in issue? In Bain v R 12 June 2009 the Supreme Court of New Zealand split on whether indistinct sounds were relevant on a recorded telephone call, the majority holding that to establish relevance it is necessary that the interpretation of the evidence advanced by its proponent be "reasonably" open or available. Further thought was given to relevance in Wi v R (see update to note for 4 July 2008) where the accused sought to adduce evidence that he had no previous convictions. This sort of problem calls for statistical analysis, but the New Zealand Supreme Court did not take that opportunity.

Overview (1) – Interpreting the proviso

This introductory part continues with my overview of important topics that are often addressed by the appellate courts in criminal cases. Where I refer to cases with accompanying dates, those are dates of blog postings on the Blogger site; on the WordPress site the dates may be a day out due to clock settings on the servers.

First overview topic ...

Interpreting the proviso – what is a "substantial miscarriage of justice"?

For around 100 years courts have dealt with criminal appeals by determining whether an error in the trial court amounted to a "substantial miscarriage of justice", but very little of that time has been spent examining what that phrase means. It has been found to be a difficult concept. Some courts have tried to achieve clarity on a case-by-case basis, but the alternatives of legislative change (in the UK since 1995 the criterion has been whether the conviction is "unsafe"), and of ignoring the recent judicial efforts by going back to fundamental statutory interpretation, have also been taken.

Courts that continue to address the meaning of substantial miscarriage of justice identify one characteristic as whether the error could have affected the outcome of the trial in a way adverse to the accused. This leads to the further question: does the appellate court ask whether the jury at trial could have reached a different conclusion, or does it ask whether it – the appellate court – would have reached that different conclusion? There is a split between courts according to which answer they give to that question.

The Privy Council has remained faithful to the traditional view that the answer is that the appellate court asks whether the jury could have reached a different conclusion. The High Court of Australia has changed its approach (Weiss, noted 16 January 2006) and, scrapping the case law and returning to principles of statutory interpretation, it decided that the appellate court asks whether it itself could have reached a different conclusion. The Supreme Court of New Zealand has reacted against the Privy Council's traditional treatment of Bain (see, for example, note for 9 July 2009) by adopting (in Matenga 20 July 2009) much of the High Court of Australia's new approach. In turn, on a subsequent appeal from New Zealand (Barlow 9 July 2009), the Privy Council has felt itself obliged to follow the new line but has emphasised that under this new approach the result in Bain would have been the same. The lingering problem for subsequent would-be appellants is how to get the Supreme Court to hear an appeal if it is based only on advocating a different interpretation of the evidence from that taken by the Court of Appeal.

Independent of the effect on the outcome of the trial, another characteristic of a substantial miscarriage of justice is that the error at trial deprived the accused of a fair hearing. The Privy Council made the right to a fair hearing absolute, and that is uncontroversial now, although before then another approach, in which the accused's right to a fair hearing could have been balanced against the rights of victims and of society, was possible. It is one thing to hold that the right to a fair hearing is absolute, but what is a "fair" hearing?

The meaning of fair hearing will need to be consistent with the place of that concept in the "substantial miscarriage of justice" model. The model that has emerged – and which may well be unintended – in Matenga is that the first question is whether the hearing was fair; if it was, the second question is whether the result of the hearing may have been different in the absence of the error. At first glance this Matenga model sounds fine: it places fairness of hearing as the primary requirement, and that looks like being an appropriate reflection of its quality of absoluteness. It requires the appeal to be allowed if the trial may have been unfair. But the difficulty is, what does fair trial mean if the trial may have been fair but also may have contained an error that amounted to a substantial miscarriage of justice? Logically, it seems odd to make the set of fair trials intersect with the set of trials involving a substantial miscarriage of justice.

A clearer concept of a fair hearing would require a different relationship between fairness and substantial miscarriage of justice. Under this model, a fair trial would be one in which there was no substantial miscarriage of justice, and that means one in which the law was properly applied to facts that had been determined impartially. Here, an impartial determination of facts presupposes an unbiased tribunal and also a tribunal that is not deflected from impartiality by errors of law. There is thus room for some errors of law, and it is usual to recognise that perfection is not always attained, but errors of law that affect the impartial determination of facts are not permitted. Nor are errors of law in applying the substantive law to properly determined facts, if such errors may have affected the result in a way adverse to the appellant. A trial may seem to have been fair but afterwards fresh evidence may cast doubt on the correctness of the verdict; in such cases there would be a substantial miscarriage of justice, albeit with the trial only having been retrospectively unfair, and the appeal would have to be allowed.

Introduction (4) – the quest for clarity

How wonderful it would be if laws could be simple. The quest for simplicity struggles against the head wind of reality: life is complicated. Laws have to be applied in individual cases, often to facts that were never anticipated by legislators. It is inevitable that even simple laws will accrue complex shades of meaning as judges adapt them to meet the requirements of justice in particular cases in accordance with an imagined legislative intent.

"The truth is that a close knowledge of the facts is essential, not because of the precedent system, but as a prerequisite to doing justice in the particular case. The facts are the fount of individual justice."

EW Thomas, The Judicial Process (2005) p 321.

If simplicity is an impossible goal, clarity is not. Clear laws are essential, no matter how complicated they may have to be. There has to be a lot of law, so at least it should be clear law. Otherwise,

"As we once suffered from crimes, so now we are suffering from laws."

Tacitus, Annals, III, XXV, quoted by Montaigne, Essays, Book Three, Chapter 13.

There is a risk that

"Anything that is divided into minute grains becomes confused."

Seneca, Letters, LXXXIX, quoted by Montaigne, ibid.

The counter-measure is the quest for clarity.

Montaigne's opinion of laws could have been written, not in the sixteenth century, but today:

"Now the laws maintain their credit, not because they are just, but because they are laws. This is the mystical basis of their authority; they have no other. And this serves them well. They are often made by fools, and more often by men who, out of hatred for equality, are lacking in equity, but always by men: vain and unstable creators. There is nothing so grossly and widely, nor so ordinarily faulty as the laws."

Montaigne, ibid.

Schopenhauer's advice to writers needs to be borne in mind by law makers – legislators and judges - as well as by law teachers, students and law commentators:

"Obscurity and vagueness of expression is always and everywhere a very bad sign: for in ninety-nine cases out of a hundred it derives from vagueness of thought, which in turn comes from an original incongruity and inconsistency in the thought itself, and thus from its falsity. If a true thought arises in a head it will immediately strive after clarity and will soon achieve it: what is clearly thought, however, easily finds the expression appropriate to it. The thoughts a man is capable of always express themselves in clear, comprehensible and unambiguous words. Those who put together difficult, obscure, involved, ambiguous discourses do not really know what they want to say: they have no more than a vague consciousness of it which is only struggling towards a thought: often, however, they also want to conceal from themselves and others that they actually have nothing to say."

Schopenhauer, "On books and writing" in Essays and Aphorisms, above pp 204-205.

Much of legal discourse requires clarity about things that are not absolute. The exercise of discretion, judgment, requires a relinquishing of faith in absolutes. Petulant old (at 42 years) Nietzsche reminds us:

"Really, why should we be forced to assume that there is an essential difference between 'true' and 'false' in the first place? Isn't it enough to assume that there are degrees of apparency and, so to speak, lighter and darker shadows and hues of appearance – different valeurs
[values], to use the language of painters?"

Nietzsche, Beyond Good and Evil, above p 35.

So, don't be afraid of complexity, but strive for clarity.

"Everything that can be thought at all can be thought clearly. Everything that can be put into words can be put clearly."

Ludwig Wittgenstein, Tractatus Logico-Philosophicus, para 4.116.

Introduction (3) – The law teachers

Having described appellate judges as being happily regressed to studious habits, I should turn to consider the law teachers. Academic life has changed, probably rather a lot, since Benson, who was in 1906 a Fellow of Magdalene College at Cambridge, described his day:

"My own occupations, such as they are, fill the hours from breakfast to luncheon and from tea to dinner; men of sedentary lives, who do a good deal of brain-work, find an hour or two of exercise and fresh air a necessity in the afternoon."

AC Benson, From a College Window (1906), p 72.

I first read those bewitching words as an 18 year old undergraduate. A little impractical though they may be, they reflect the romantic ideal of the scholarly life. The reality is hugely different. Nietzsche was, as one would expect, scornful of scholars:

"Every age has invented its own divine type of naivete, which other periods may find enviable – and how much naivete, how much admirable, childlike, and endlessly foolish naivete lies in the scholar's faith in his own superiority, in his good conscience for being tolerant, in the simple clueless confidence with which he instinctively treats the religious person as an inferior and lower type, one that he himself has grown away from, grown beyond, grown above – he, the presumptuous little dwarf and vulgarian, the diligent darting headworker and handworker of 'ideas', of 'modern ideas'!"

F Nietzsche, Beyond Good and Evil (1886), Trans. M Faber, Oxford World's Classics 1998, pp 52-53.

Well, Benson was certainly not that sort of scholar. Nietzsche did try to say some good things about scholars ...

"... what is a man of learning? A common sort of man, first of all, with a common man's virtues, that is to say, neither masterful nor authoritative nor even self-sufficient. He is industrious, patiently joining the rank and file, conforming and moderate in his abilities and needs."

Ibid, p 96.

But those good sentiments didn't last the whole paragraph:

"... he is rich in petty envy and has a lynx-eye for what is base in those other natures whose heights he is unable to reach. ... The worst and most dangerous things that a scholar is capable of come from the instinct of his type to mediocrity ... ."

Ibid, pp 96-97.

Montaigne too thought that scholars sink beneath the load that they have taken up:

" ... That is why we see so many inadequate minds among scholars; more, in fact, than of the other kind. They would have made good farmers, good tradesmen, good craftsmen; their natural strength was cut to that measure.

" Learning is a thing of great weight, and they collapse under it; their understanding is not powerful or adroit enough to display and distribute that rich and potent material, to make use of it and get help from it."

Montaigne, Essays, Book Three, Chapter 8, above p 297.

I suppose things have improved a bit, due to the commercialisation of tertiary education and the beneficial effects of competition among universities for status, among students for grades, and among graduates for employment. High educational standards are in high demand. Students, especially those paying high fees, demand excellence in their teachers. The grades awarded to students can be seen as a reflection of the teachers' ability to teach, as one of Dershowitz's teachers admitted (above, p 70). Dershowitz also notes (pp 105-106) that if law teachers lack experience in practice they cannot adequately teach the practical skills sought by employers.

Is scholarly writing by law teachers only of use to students and appellate judges?

Posner observes that legal scholarship in general has as a marked characteristic a weak sense of fact (Overcoming Law, 1995, p 172). Also,

"The academic usually does not attend oral argument or even read the briefs in the cases that he writes about or teaches. Naturally, therefore, he tends to ascribe more importance to the opinion, to its reasoning, its rhetoric, and so forth, than to the decision itself. Yet these are the secondary factors for most judges."

Richard Posner, Overcoming Law, above, pp 129-130.

Academics, it seems, fail to appreciate the judicial point of view:

"Many judges think that academics do not understand the aims and pressures of judicial work and that as a result much academic criticism of judicial performance is captious, obtuse, and unconstructive. This sense is shared even by appellate judges, engaged in the quasi-scholarly work of opinion writing, including appellate judges appointed from the professoriat."

Richard Posner, How Judges Think (2008), p 205.

He notes that "law schools still have a long way to go to overcome the shameful aversion of most law students to math, statistics, science, and technology" (ibid, p 209). Constructive legal scholarship would get to grips with tidying up the "messy work product of judges and legislators" by "synthesis, analysis, restatement, and critique" (p 210).

"It falls to the law professors to clean up after the judges by making explicit in treatises, articles, and restatements the rules implicit in the various lines of cases, identifying outliers, explicating policy grounds, and charting the path of future development. This type of scholarship resembles appellate judging because it is the kind of thing one could imagine the judges themselves doing had they the time and the specialised knowledge."

Richard Posner, How Judges Think (2008), p 211.

I have relied heavily on Posner's views, as he is an appellate judge, and as a practitioner I only rarely look at academic writing. My impression is that it would be very unusual for counsel to cite academic writing (other than statute-commentary text books) in written submissions. Judges sometimes cite academic articles, but I - perhaps unfairly - perceive an element of cronyism in that.

Be that as it may, the conclusion I draw from these various thoughts is that law would best be taught by retired appellate judges.

Introduction (2) On judges

It is not unusual for a lawyer whose case on appeal is rejected to think that the judges have twisted the facts to suit that result. Montaigne, although not talking specifically about judges, suggested this sort of twisting is a product of intelligence:

"Men of intelligence notice more things and view them more carefully, but they comment on them; and to establish and substantiate their interpretation, they cannot refrain from altering the facts a little. They never present things just as they are but twist and disguise them to conform to the point of view from which they have seen them; and to gain credence for their opinion and make it attractive, they do not mind adding something of their own, or extending and amplifying."

Montaigne, "On Cannibals", Essays Book One Chapter 31, above p 108.

The style that Montaigne thought appropriate for advocates compliments this judicial twisting of the facts. It gives the judge as much as possible to work with. It is the style he attributed to Cicero: long drawn-out preliminaries including preambles, definitions, classifications and etymologies, time-wasting dissections and beatings about the bush,

"Cicero's way is right for addressing a judge whom one wishes to convince by fair means or foul, or for using on children, and the common people, with whom nothing must be left unsaid, in the hope that something will hit the mark."

Montaigne, "On Books" Essays Book Two, Chapter 10, above p 166.

Today this technique extends to the filing of overly prolix written submissions. It is as if the more that is said, the more likely it is that the judge will agree with something that is said.

Modern commentators can be even less charitable about judicial fact finding. Alan Dershowitz asserts that the political nature of judicial appointments in the United States means that judges who wish to be promoted should side against criminals:

"The heavy thumb of careerism is on the scale of justice in nearly every criminal case, certainly in high-profile cases involving unpopular defendants."

Dershowitz, Letters to a Young Lawyer, 2001, p 120.

Richard Posner complains that

"Too many of our judicial opinions contain unexamined assumptions, conventional and perhaps shallow pieties, and confident assertions bottomed on prejudice and folklore."

Posner, The Problems of Jurisprudence, 1990, p 97.

He also observes that

"Appellate judges in our system often can conceal the role of personal preferences in their decisions by stating the facts selectively, so that the outcome seems to follow from them inevitably, or by taking liberties with precedents."

Posner, How Judges Think 2008, p 144.

Montaigne's observation on the way intelligent people tend to think could have been made, not 500 years ago, but today. Human nature can lead judges to find the facts to be as they want them to be. The appellate judges, who do not usually hear oral evidence, have, despite their protestations to the contrary, as much power to evaluate the evidence and to criticise a lower court's reasoning as the fact-finding courts have power in the guise of assessment of credibility.

The deference that appellate judges profess for the factual determinations of lower courts may be as sham as the deference given to judges by counsel. Deference attaches to the power exercised by judges, and is just as transient.

"Like that accorded to wealthy people, this deference is of the shallowest kind: as soon as the judge loses office, as soon as the wealthy person loses money, the deference ceases. Sensitive people realize this, but it does not eliminate the pleasure of being treated in a respectful manner. The republican simplicity of manners – the "I'm no better than the next guy" deportment – that most American judges affect is intended to be admired rather than to be taken seriously. Judges receive deference because they have power, and the power resides in their votes. They don't have much power (Supreme Court Justices are an important exception, and the petty tyranny of the trial judge is well known) and they are not much deferred to (with the same exceptions). But such deference as they do receive comes from their being, like wealthy people, more powerful than most people, not from being – like athletes, popular entertainers, war heroes, saints, and scientists – admired. Most judges are quickly forgotten after they leave office."

Richard Posner, Overcoming Law (1995) pp 120-121.

The difference in manners between the friendly informality of the superior court judges and the petty tyranny that is sometimes seen in the lower courts is probably universal. Working conditions vary, and the highly pressured muddle of lower court proceedings may contribute to a judge's bad manners. So too may inability to cope:

"A man who overestimates his capacities is apt to grow impatient, and even tyrannical, in the presence of difficulties."

AC Benson, From a College Window (1906), p 276.

The kind of judge who is suited to appellate work may have a personality that is not naturally given to unpleasantness, or that is not inclined to react to high pressure and disorder by unpleasantness:

" ... judging, especially at the appellate level, is an introvert's profession ..."

Richard Posner, How Judges Think (2008), p 137.

It may be that the pleasantness of high level judges is due, apart from their indulgence in the hypocrisy of a "republican simplicity of manners" or their relatively orderly and unpressured working conditions, to their having regressed to the kind of work they did at law school. Judgment writing is a scholarly activity, and the level of scholarship is often higher than that attained by the law teachers. This brings me to my point of view on these judges: they are scholars. Sometimes they are overeager to show their cleverness, especially when promotion may be a possibility. Usually they are like ambitious honours students.

Judges at the appellate levels have an educative function. Their judgments are often like extracts from text books or specialist treatises, and as such they are designed to be studied. Some of us do study them.

Introduction (1) – the point of view

"To find a congenial subject, and to express that subject as lucidly, as sincerely, as frankly as possible, appears to me to be the most delightful occupation in the world."

AC Benson, "From a College Window" (1906) p 208

Benson's subject was human nature, and this book is required reading for any educated person. My congenial subject is criminal law, and my highly technical approach to it will be of interest to only a few. I have tried here to describe its recent developments lucidly and sincerely, but not necessarily as frankly as I could have. This is not the occasion for absolute frankness, for the law of contempt must be borne in mind, and it is more sensible to confine myself to the "delightful occupation" of attaining mastery of the subject. But first things first. What do some of western civilisation's really wise guys have to say about tackling a subject? Schopenhauer described the process of attaining mastery:

"... only through ordering what you know by comparing every truth with every other truth can you take complete possession of your knowledge and get it into your power. You can think about only what you know, so you ought to learn something; on the other hand, you can only know what you have thought about."

A Schopenhauer, "On thinking for yourself" in Essays and Aphorisms (trans.RJ Hollingdale, Penguin Classics 1970) p 89

My aim is to learn what judges have said about the law, to think about those dicta, and to compare the emergent "truths" in order to make the subject mine. In considering the opinions of judges it is more important to be sincere – that is, honest - and respectful than it is to be frank.

"One of the many excellent customs of our ancestors was their invariably respectful treatment of experts in the interpretation of our excellent law."

Cicero, "On Duties (II)", in Cicero: On the Good Life (trans. Michael Grant, Penguin Classics 1971) p 156.

Cicero also said, controversially, that it is more honourable for a lawyer to defend than to prosecute (ibid, p 145). My opinion is that when they are done properly both prosecuting and defending are equally honourable. Neither role necessarily requires frankness but both involve respect. It is apt to consider Montaigne's observation:

"It suits our imagination better to think of a craftsman on the close-stool or on top of his wife, than of a Chief Justice, venerable for his bearing and his talents, in the same position."

Michel de Montaigne, "On Repentance", in Essays (trans. JM Cohen, Penguin Books 1958) p 241.

Yes, judges defecate and copulate, some perhaps not as much as they should, but I am not here concerned with judges as people. I do not aim to inquire into whatever intrigues and stratagems may be found between the lines of their decisions. At the same time, I am not a naive toady. Like Schopenhauer (above, p 218), I concede a superior judgment to nobody. And the application of that judgment to the work of judges is an intense intellectual exercise, and like all such exercises is "the most wonderful spiritual nourishment in the world" (Cicero, "Discussions at Tusculum V", above p 87).

And now for something completely different ...

Posts to this site will continue. There will be a new approach. Instead of a commentary on new cases as they are decided, I will post occasional observations on topics which should be of interest to advanced students and practitioners.

Now we are five

Five years of blogging!

That concludes my ongoing commentary, but I may occasionally add updates to particular entries. To locate these, search this site for "Update"; if the search function isn't working, try the alternative site (link on right).

Disclosure of warnings and diversions

It may be necessary for the prosecution to disclose to the defence information about prosecution witnesses concerning warnings that they have received from the police about their conduct, and about measures alternative to prosecution (eg diversion) that such witnesses have undergone: HM Advocate v Murtagh [2009] UKPC 36 (3 August 2009), para 40(iv).

Such disclosure would be required if, as with any criminal convictions, that information would be material in the sense that it would either undermine the case for the prosecution or assist the case for the defence.

The decision on disclosure is, in current Scottish law, governed by the common law and is a matter for the prosecutor. Cases noted here and mentioned in Murtagh are Holland v HM Advocate (25.5.05), Sinclair v HM Advocate (24.5.07) and McDonald v HM Advocate (21.10.08).

The leading judgment in Murtagh was delivered by Lord Hope, and the only real point of some divergence was on whether it would be preferable for the prosecutor to disclose all the convictions of prosecution witnesses unless those convictions would be both embarrassing and immaterial (Lord Scott 43, Lord Brown 73).

While the common law does not require the prosecution to disclose information about the convictions of witnesses it knows the defence will or may call, Lord Rodger noted (70) that such disclosure would be consistent with equality of arms.

The accused's fair trial right is absolute and is not a matter for balancing against the privacy interests of a third party: Lord Scott (43; there was no disagreement on this). Criminal records held by the authorities can attract privacy interests, especially if they are old, so full disclosure is not an absolute right (Lord Hope at 18, 28). So, although the right to a fair trial is absolute, the right to disclosure is qualified (29).

Material convictions go to the witness's credibility or character (Lord Hope, 30) and a generous interpretation of what might be relevant should be taken, although a threshold applies (31). There are practical problems with the full disclosure approach favoured by Lord Scott and Lord Brown, such as the potential for harassment and other misuse of them by unrepresented defendants (33). There is no requirement of disclosure of the records of defence witnesses (39).

Lord Rodger emphasised the undesirability of redacting lists given to the defence, as that process can be time consuming (59) and can lead to disputes (69). Where disputes do arise, the judge should resolve them (69, and Lord Brown at 73), although Lord Hope saw no need for the disclosure decision to be transferred to some other party (15).

Disclosure of warnings and incidents of diversion from prosecution is not specified in recent legislation in New Zealand, the Criminal Disclosure Act 2008, although it would probably come within s 13(2)(a) which requires disclosure of "any relevant information", and the specified matters do not limit that expression.

On being informed about decisions to prosecute

There is a right to be told of how decisions about whether or not to prosecute are made: R (Purdy) v Director of Public Prosecutions [2009] UKHL 45 (30 July 2009).

Article 8 of the ECHR provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The Appellate Committee ordered the Director to publish a specific policy on decisions to prosecute allegations of assistance in suicide. Here there was a possibility that assistance might be given to a person who wanted to commit suicide lawfully in Switzerland, by helping them leave the United Kingdom for that purpose. The potential assister wanted to know about the likelihood of being prosecuted.

The common law on liability for assisting what would be an offence in the jurisdiction where the assistance is given, but not an offence where the full offence is committed is reasonably clear, although Lord Phillips did not think it was necessarily as settled as did Lord Hope who delivered the leading opinion. Whether that jurisdictional issue was settled or not, the real issue in this case was access to information about decisions to prosecute.

Baroness Hale noted (57 – 58) the recent Parliamentary debates on the issue of assisted suicide, which did not result in legislation. There were drafting difficulties, and indications of a preference to leave the matter to prosecutorial discretion. Since a major objective of the criminal law is to warn people of when they might be punished (59), article 8(2) was engaged (62). Lord Brown said article 8(2) required accessability and foreseeability in assessing how prosecutorial decisions are likely to be exercised (85). Lord Neuberger said the applicant was entitled to guidance on that (106).

Lord Hope pointed to the crucial circumstances that a Code guiding prosecutorial decisions should address (53):

"...There could be [... cases] unsuitable for prosecution where, for example, it could be said that those who offered assistance stood to gain an advantage, financial or otherwise, by the death. An assistant who was not a relative or a family friend might have to be paid, for example, and a relative might derive some benefit under the deceased's will or on intestacy. The issue whether the acts of assistance were undertaken for an improper motive will, of course, be highly relevant. But the mere fact that some benefit might accrue is unlikely, on its own, to be significant."

He concluded:

"54. The Code will normally provide sufficient guidance to Crown Prosecutors and to the public as to how decisions should or are likely to be taken whether or not, in a given case, it will be in the public interest to prosecute. This is a valuable safeguard for the vulnerable, as it enables the prosecutor to take into account the whole background of the case. In most cases its application will ensure predictability and consistency of decision-taking, and people will know where they stand. But that cannot be said of cases where the offence in contemplation is aiding or abetting the suicide of a person who is terminally ill or severely and incurably disabled, who wishes to be helped to travel to a country where assisted suicide is lawful and who, having the capacity to take such a decision, does so freely and with a full understanding of the consequences. There is already an obvious gulf between what section 2(1) [of the Suicide Act 1961[UK]] says ["A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years"] and the way that the subsection is being applied in practice in compassionate cases of that kind.

"55. The cases that have been referred to the Director are few, but they will undoubtedly grow in number. Decisions in this area of the law are, of course, highly sensitive to the facts of each case. They are also likely to be controversial. But I would not regard these as reasons for excusing the Director from the obligation to clarify what his position is as to the factors that he regards as relevant for and against prosecution in this very special and carefully defined class of case. How he goes about this task must be a matter for him, as also must be the ultimate decision as to whether or not to prosecute. But, as the definition which I have given may show, it ought to be possible to confine the class that requires special treatment to a very narrow band of cases with the result that the Code will continue to apply to all those cases that fall outside it.

"56. I would therefore allow the appeal and require the Director to promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdy's case exemplifies, whether or not to consent to a prosecution under section 2(1) of the 1961 Act."

This is an interesting example of the common law going where Parliament fears to tread.

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.