Admissiblity issue or defence?

There is a difference between a procedural error in steps taken by an enforcement officer which provides a defence to a charge, and an error which results in evidence being improperly obtained: Birchler v Police [2010] NZSC 109 (30 August 2010). An officer had wrongly decided that a breath test could not be carried out at the roadside, and required the suspect to accompany her to the police station for the testing procedures. The accompanying was not voluntary (8). The District Court Judge dismissed the charge, instead of ruling that the improperly obtained evidence was admissible pursuant to the balancing exercise set out in s 30 of the Evidence Act 2006.

In the absence of reasonable compliance with the procedures the defendant had a defence (17). It would have been wrong for the Judge to have proceeded to the balancing exercise, because to do so was "quite inconsistent" with the statutory procedural scheme. The High Court, on an appeal on a question of law, held that the District Court could have undertaken the balancing exercise instead of dismissing the charge. The Supreme Court overruled that and set aside the High Court's order which remitted the case to the District Court for reconsideration.

The Supreme Court took the opportunity to correct a troublesome dictum in R v Gallichan [2009] NZCA 79 at 18, in which the Court of Appeal had indicated that failure to challenge the admissibility of evidence before the close of the prosecution case prevented the issue being raised. That was wrong (Birchler at 21).

Saved by sunken dreams

In Attorney-General v Tamil X [2010] NZSC 107 the New Zealand Supreme Court applied JS (Sri Lanka) v SSHD [2010] UKSC 15 (discussed here 16 April 2010). The case concerns whether X was disqualified from obtaining refugee status. Two grounds for disqualification were advanced: his participation in a crime against humanity, and his commission of a serious non-political offence.

Here, the sinking of a ship which carried weapons meant that no crime against humanity was committed as a result of any support that X may have given, as Chief Engineer onboard, to the Tamil Tigers during the vessel's last voyage bound for Sri Lanka. The Crown had acknowledged that no attempt was committed on the particular facts, which included findings that X was a loyal supporter of the Tamil Tigers, and he knew that he was helping to smuggle arms to Sri Lanka.

The Supreme Court held that all the necessary elements for X's personal responsibility for participating in a joint criminal enterprise to commit crimes against humanity were established on the facts (71), except that there was no proof of criminal acts of the Tamil Tigers in which it could be said that X was complicit, as the sinking of the ship resulted in no use of the weapons (72, 73, 75, 78). The point of joint enterprise liability is to make liable those who assist or contribute to crimes that are actually committed (79).

Another issue was whether X had committed, by other conduct, a "serious non-political crime". He had been convicted in India of being a party to the intentional destruction of a vessel carrying explosives in circumstances where danger to lives was likely (83). If this was accepted by the New Zealand authorities, that would establish X had committed a "serious crime", but was it "non-political"? That term is not defined (87). It is a question of the context, methods, motivation and proportionality of the crime to the offender's political motives (90), bearing in mind that (although it is not the norm in New Zealand) violence may be an incident of political action in many other countries (91, applying Kirby J's dictum in Minister for Immigration and Mulitcultural Affairs v Singh [2002] HCA 7 at para 106).

Here, X's conduct was political: there was not the "indiscriminate violence against civilians which would make the link between the criminal conduct and any overall political purpose too remote." (95)

There was thus no evidence of non-political crimes that would have disqualified X from obtaining refugee status. Nor was there evidence that he should be disqualified by reason of participation in a crime against humanity.

It seems that the Crown's concession that there was no attempt to commit a crime against humanity on these facts was important to the outcome. It was properly made, in view of decisions in domestic law about the difference between preparation to commit an offence and attempting to commit it. The distinction is sometimes difficult to draw, and can be controversial. The failure of a bomb to detonate would not save participants from liability for the attempt. But being interrupted in the process of assembling the ingredients for the bomb might. Generalisations are dangerous.

Doing the right thing

And now, on the actual date of the sixth anniversary of this site, here – as my 400^th posting - is a note on Petryszick v R [2010] NZSC 105 (24 August 2010).

The only grounds on which the Court of Appeal may dismiss an appeal against conviction are set out in s 385(1) Crimes Act 1961, and the substantive right to appeal (s 383) is not restricted - in the absence of express or implied authority in primary legislation - by authority to make procedural rules (32). Nor could the inherent right of the Court to control its own procedure be invoked to undermine the general standard of process required by s 25(h) New Zealand Bill of Rights Act 1990.

There will therefore be occasions when the Court must address grounds for appeal specified in preliminary documents without the assistance of a fully prepared argument for the appellant. Here the appellant had been in custody and correspondence from the court had been wrongly addressed, there were delays in approving a grant of full legal aid for his appeal, official correspondence did not refer to points he had raised, there were delays in giving the appellant information he needed to prepare his appeal. The Court of Appeal had dismissed the appeal without considering all the matters that had been raised.

The humorous side of this case is in the reaction of the Court of Appeal to the sort of quotidian frustrations that ordinary people can encounter in their efforts to obtain the service to which they are entitled from the bureaucracy. Consigning such a case to the wastepaper basket of dismissed appeals is not the right thing to do.

Rules of procedure should assist access to courts. The present Supreme Court case is reminiscent of the spirit of its earlier decision in Zaoui v Attorney-General, noted here on 25 November 2004. The lesson delivered by the Privy Council in Taito v R (New Zealand) [2002] UKPC 15 needs to be remembered. People who look for reasons to institute a criminal cases review tribunal will take the Court of Appeal's approach to Petryszick as an example.

Time

This week is the sixth anniversary of the start of this site.

Other milestones? Forty years ago I was dux of the same secondary school that Lord Rutherford was dux of in 1889. I smile at the bathos. Perhaps in some other dimension Rutherford's loud laughter echoes down the corridors of the Cavendish when he sees the result of searching this site for the word "smug".

I came to law after a science degree which left me fearless of mathematics, statistics and probability. This leads to the next anniversary.

Thirty years ago I had, as a spin-off from my PhD thesis, an article published in the Criminal Law Review. The publishers sent me copies of that month's edition.

This contained a fascinating exchange between Sir Richard Eggleston and, in the letters part of the journal, Jonathan Cohen over the forensic use of probability reasoning.

Consequently, I became familiar with Bayes' Theorem. The book by Bernard Robertson and GA Vignaux, "Interpreting Evidence" (1995) should make this subject accessible for most lawyers. So may my draft paper on the logic of propensity evidence [click here].

Bernard, incidentally, is mentioned on the innocent project page of Victoria University in Wellington. And, to complete a circle within a circle, Graham Zellick – mentioned in the edition of the Criminal Law Journal referred to above, is here in New Zealand now in connection with Victoria University's Innocence Project. Gasp.

So there we have it: milestones, coincidence, criss-crossing lives, earnest endeavours, and time always passing.

Bringing science to law

For more on DNA, see the second part of the article mentioned last time: New Scientist, 18 August 2010.

It confirms that the likelihood ratio is the best way of presenting conditional probability evidence. This will be familiar to anyone who uses Bayes' Theorem.

The simplicity of this approach is so stark that it can be mistaken for complexity. It asks, how much more is the evidence consistent with guilt than with innocence?

Difficulties with DNA evidence arise when scientists try to assign probabilities to each of these consistencies.

In my own humble little way I have offered lawyers an easy introduction to Bayesian reasoning.

It is a paper that has long been in draft form, so I can revise and update it as developments occur.

Interpreting DNA test results

See New Scientist for an article called "Fallible DNA evidence can mean prison or freedom" by Linda Geddes, dated 11 August 2010.

Interpretation of DNA analysis can be subjective and it is vulnerable to suggestion, so that scientists should know nothing of the circumstances in which samples were obtained or about the prosecution theory of the case.

The article points out that a defendant could be wrongly convicted because an analyst says that samples matched, when in fact peer opinions may differ over that and indeed may favour the contrary conclusion.

I suppose some defendants might wrongly be acquitted if an analyst thought there was no match, when peers might think there was a match. Could that happen?

Dismissing judges for misconduct

I imagine that all experienced barristers are familiar with bad judicial behaviour. But how bad does it have to be before a judge can be removed from office?

In Madam Justice Levers, Hearing on the Report of (The Cayman Islands) [2010] UKPC 24 (29 July 2010) the criterion for removal from office was set out [50]:

"The public rightly expects the highest standard of behaviour from a judge, but the protection of judicial independence demands that a judge shall not be removed for misbehaviour unless the judge has fallen so far short of that standard of behaviour as to demonstrate that he or she is not fit to remain in office. The test is whether the confidence in the justice system of those appearing before the judge or the public in general, with knowledge of the material circumstances, will be undermined if the judge continues to sit – see Therrien v Canada (Minister for Justice) [2001] 2 SCR 3. If a judge, by a course of conduct, demonstrates an inability to behave with due propriety misbehaviour can merge into incapacity."

An incident that of itself would have justified the judge's removal from office occurred during a sentencing hearing when the judge made disparaging comments about a complainant and people of her race. These comments [64]

"... showed bias, and indeed contempt, for Jamaicans which extended not merely to the defendant but to his victim, who happily was not in court. The comments about [her] ... were monstrous, suggesting that she should have been sent "home", describing her as "a woman like that" and accusing her of "spreading her goodwill around" – a clear allegation of promiscuity."

We all know that judicial behaviour tends to improve towards the appellate end of the hierarchy.

We are currently going through our own little trauma here, and it seems to be something that blew up out of a very minor error of judgement. Of course I would never read email messages that were not intended for my eyes, but if I did I would be fascinated by the glimpse they gave of the concerns of top ranking QCs. Private and professional lives, friendships and high legal principles, confidentiality and its limits, the individual and the integrity of the courts. The magnification of error by stress, the struggle for a proper perspective.

Reasonable, fair and not necessarily surprising

When is an unannounced forced entry into an occupied dwelling reasonable? In R v Cornell  [2010] SCC 31 the majority held there were sufficient circumstances to make such a search reasonable. These cases will usually be fact-specific, as here, and no new principles of law were established.

 The majority (McLachlin C.J. and Charron, Rothstein and Cromwell J, joint judgment delivered by Cromwell J) stated the general principles: 

"The only issue is whether the lawfully authorized search was conducted reasonably. Except in exigent circumstances, police officers must make an announcement before forcing entry into a dwelling house. Ordinarily, they should give: (1) notice of presence by knocking or ringing a door bell; (2) notice of authority, by identifying themselves as law enforcement officers; and (3) notice of purpose, by stating a lawful reason for entry. While the "knock and announce" principle is not absolute, where the police depart from it, there is an onus on them to explain why they thought it necessary to do so. If challenged, the Crown must lay an evidentiary framework to support the conclusion that the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants or about the destruction of evidence. The police must be allowed a certain amount of latitude in the manner in which they decide to enter premises and, in assessing that decision, the police must be judged by what was, or should reasonably have been, known to them at the time. On appellate review, the trial judge's assessment of the evidence and findings of fact must be accorded substantial deference."
 

In another fact-specific case decided the same day, the Court by the same majority (but here delivered by Charron J) held that the law may require a trial judge to put to the jury matters of law not covered by counsel (even by agreement between counsel), with the result that a basis for conviction which was not the subject of addresses to the jury by counsel may properly be considered and relied on in deliberation of the verdict: R v Pickton  [2010] SCC 32 This is really because the trial must be in accordance with the law, subject to fairness. Here the jury had been asked to acquit based on a factual doubt (as to his being a principal), but that doubt would not, on a wider view of routes to guilt (secondary liability), have exculpated him.

The position in Canada is that, even if the Crown has consistently advanced only one theory of guilt, its case is "a moving target": R v Rose, 1998 CanLII 768 (S.C.C.), [1998] 3 S.C.R. 262. The issue will be whether a change in stance gives rise to unfairness to the accused. It was significant here that "the defence theory itself put the participation of others at issue" (21, the majority's emphasis), and this meant that throughout the trial defence counsel were aware that secondary participation was in issue. The minority considered that the judge's instruction on secondary liability was inadequate.

Exculpatory statements ... and trials in the fullness of time

A brief note on two Privy Council decisions from last week:

Gordon v R (Belize) [2010] UKPC 18 (21 July 2010) is an interesting little reminder that there are times when the prosecution is, in the interests of fairness to the accused, obliged to lead evidence of his exculpatory statement, applying R v Sharp [1988] 1 WLR 7 and R v Aziz [1996] 1 AC 41.

The case also illustrates a misdirection on provocation.

In Maraj-Naraynsingh v Attorney-General of Trinidad and Tobago [2010] UKPC 19 (21 July 2010) we are given a glimpse of what seems to be a relaxed attitude to work in the tropics: the case highlights an absence in that jurisdiction of a constitutional right to a trial within a reasonable time; the right to be brought before a court "promptly" after arrest cannot be extended to include a right to be tried promptly after committal.

Res gestae lives again! And implied assertions are statements.

The majority in Rongonui v R [2010] NZSC 92 did not share the Chief Justice's view that "res gestae" is an outmoded term (see Hart v R [2010] NZSC 91 at 17, noted below).

In Rongonui, Blanchard, Tipping, McGrath and Wilson JJ held jointly that res gestae statements are not within the scope of s 35 Evidence Act 2006 (prior consistent statements) [46]. Terminology might be in doubt, as the judgment refers to "what used to be called" res gestae evidence [47], and at [46] the phrase "words spoken in the course of the events in issue" is used – but that could hardly have been intended to be a convenient substitute for the term "res gestae".

Res gestae statements therefore continue to be admissible in the same circumstances in which they were admissible at common law.

The joint judgment in Rongonui also tidied up what was becoming a needlessly contentious issue: a spurious exclusion of implied statements from the scope of "statements" (see the definition of "statement" in s 4 Evidence Act 2006), especially in relation to the statutory hearsay rule. A statement is an assertion, and an assertion may be express or implied [33]. The Crown in Rongonui could not argue that evidence that the complainant told someone "what had happened" was not an assertion that she had given the same account of events as she was giving in court. Those words carried the implication of consistency, and were accordingly an assertion of consistency, and in the circumstances of this case were an inadmissible prior consistent statement.

There is much overlap between Rongonui and the Court's other decision of today, Hart (see below), especially on the incorporation of what used to be called recent complaint evidence in sex cases into s 35 so that they no longer need to be "recent" in the common law sense, they are admissible as proof of the truth of their assertions, but they are only admissible when the conditions in s 35 are met. That is not a formidable obstacle, as usually the defence in such cases will be alleging recent invention.

It seems to me that if the defence specifies when it claims invention first occurred, consistent statements before that will have a relevance that is more likely to be obvious than consistent statements made after that date, although generalisation is dangerous and the circumstances of each case will need consideration in assessing the probative value of the challenged consistent statement. That there will be difficulties is signaled by the Chief Justice's dissent in Rongonui on the s 35 point.

Barlien got a drubbing today. It has up to now been cited by the Court of Appeal mainly for the point on which it was approved: that when the prior consistent statement is admissible it is admissible as proof of what it asserts. In two cases Barlien has been noted uncritically on other points now corrected by the Supreme Court: in Ringi v R [2008] NZCA 293 it was mentioned as showing the difficulties of s 35, and in a case which carried a suppression order so I only cite its number, CA529/2008, Barlien was mentioned as authority for the proposition that res gestae evidence is no longer admissible. Another aspect of Barlien - observations on potential difficulties concerning identification evidence - has been called into question by the Chief Justice in footnote 29 of Hart; the Court of Appeal cited Barlien uncritically on that point in CA108/2009.

All judges in Rongonui agreed that the trial had involved breaches of s 90(5) Evidence Act 2006, and the joint judgment, with which Elias CJ agreed, contains some comments on deciding when a record is capable of refreshing a witness's memory.

Prior consistent statements

Hart v R [2010] NZSC 91 (23 July 2010) addresses the law of the admissibility of prior consistent statements in the context of a claim of recent invention under s 35 Evidence Act 2006.

The Court was unanimous, and the reasoning in the two judgments is consistent. Blanchard, Tipping, McGrath and Wilson JJ jointly held that the essence of an admissible prior consistent statement is its tendency to respond to a challenge to the witness's veracity or accuracy based on a claim of recent invention [50]. An "invention" is a deliberately misleading statement [51]. It is not always possible to identify exactly when a motive to fabricate arose [52, and Elias CJ at 20]. Therefore it is not necessary that the prior consistent statement was made before the occasion or motive for the claimed invention [53, and Elias CJ at 20]. This is a departure from the position that had prevailed at common law.

The prior statement is admissible as proof of the truth of its assertion [54-57]. This too is a departure from the common law rule that prior statements were only admissible as proof of the witness's consistency.

Elias CJ held that prior statements admissible under s 35 can include what the common law called "recent complaint" allegations of sexual offending [14]. It is now not necessary that such complaints be "recent" in relation to the alleged incident, but their admission does need to be "necessary" to rebut the allegation of recent invention [15].

She also held that a recent invention in terms of s 35 is one that occurred after the events described [16].

Elias CJ disagreed with the Court of Appeal's judgment in R v Barlien [2008] NZCA 180 on several points (I have commented on this case on 8 July 2008): recent complaints are within s 35, and speech that is part of the events (formerly called res gestae – a term that is now to be avoided [17]) can also be admissible "in themselves" [17]. She also doubted that Barlien was correct to exclude from s 35 previous statements by identifying witnesses [footnote 29]. Nor did she consider the legislation would disrupt the course of evidence, as defence counsel would usually indicate the basis for a defence in opening remarks, or would agree that the Crown could lead evidence of the prior statement in examination in chief [19].

Barlien was therefore needlessly alarmist.

Of critical importance will be the necessity requirement: when is admission of evidence of the prior consistent statement "necessary" under s 35? [Elias CJ at 11, joint judgment at 51.] The joint judgment says that judicial experience with the common law will assist in judging the tendency of the statement to rebut the allegation of recent invention. Elias CJ refers to the requirements of relevance in s 7.

Much to rejoice about here, if clarity is what you want. I am a little uneasy about the joint judgment's apparent limitation of "recent invention" to statements that are deliberately misleading [51], because s 35 allows them to be admitted to respond to a challenge to the witnesses "accuracy", not just "veracity".

Collateral attack, witness immunity, and abuse of process

An orthodox application of Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL), prohibiting the use of civil proceedings to mount a collateral attack on a decision in a criminal case, is Hurnam v Bholah (Mauritius) [2010] UKPC 12 (12 July 2010).

Issues that have been decided to have reached the standard of beyond reasonable doubt cannot be taken to be capable of having a different outcome if they were to be decided on the balance of probabilities. The exception is where fresh evidence passes a "rigorous test" (per Lord Diplock in Hunter at 545).

In Hunter, the Birmingham Six case, the accused were held beyond reasonable doubt at voir dire not to have been subjected to violence before they made statements which were therefore admissible at trial, so subsequent civil proceedings by the accused against the officials for alleged assault were stayed as an abuse of process.

Ultimately the Birmingham Six were shown to have been wrongly convicted – even wrongly accused – and they received compensation.

An interesting aspect of Hurnam v Bholah is its reference (37-38) to French law on issue estoppel. In Mauritius the substantive law is based mainly on the French Napoleonic Code, whereas procedural law is mainly English. In English common law the position was that neither an acquittal nor a conviction was admissible on the same issue in civil proceedings: Hollington v F Hewthorn & Co Ltd [1943] KB 587. This was the applicable law in Mauritius. The position in the UK was changed by statute (s 11 Civil Evidence Act 1968) so that a conviction is prima facie evidence in civil proceedings that the person did commit the offence. But French law permits the results of criminal cases, whether convictions or acquittals, to be used in evidence in civil cases. However this has been held not to be part of the procedural law of Mauritius.

There is an obvious irony in Hunter being authority for preventing civil proceedings being used to undermine a criminal conviction, as the convictions there were unsound. But the point is that a conviction is a matter of criminal law and it can only be challenged on appeal or on prerogative review.

In the present case the Board held (31) that Mr Hurnam was seeking to use civil proceedings, not to obtain damages, but to restore his reputation by calling into question the guilty verdict in the criminal proceedings. He had been found guilty of conspiring to fabricate an alibi, and his civil proceedings claimed that the allegation that he had conspired to fabricate the alibi was false.

Lord Brown agreed with the judgment of the Board delivered by Lord Rodger, and added that witness immunity protected the witness whose evidence supported the allegation of conspiracy to fabricate the alibi from subsequent suit (Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435), the policy being that witnesses should not, for fear of being sued for something they say, be afraid to tell the truth (citing Lord Hoffman in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, 208). There was no issue of witness immunity in Hunter and Lord Brown considered that Hunter was a weaker case for striking out than was the present case.

Stubborn beliefs and the elusive truth

On how we let our beliefs get in the way of the facts, and on how contrary facts merely entrench our preconceived beliefs, see this article from the Boston Globe, 11 July 2010, "How facts backfire" by Joe Keohane. 

While that article is not concerned with forensic fact finding, it does have fundamental implications for trial procedure.

The article mentions research that indicates that persuasion requires an adjustment of the other person's (fact-finder's) belief about the issue, not by presenting facts that threaten the person by putting them in the position of being wrong, but by interactively presenting evidence that directly confronts preconceived beliefs. To lawyers this implies that jurors or fact-finding judges should be able to question witnesses directly. Another suggestion is that increasing the "reputational cost" of error could discourage people from adhering to false beliefs. This could be done by making jurors answerable for their decisions, for example by exposing them to media questioning after their verdicts.

Current practice could hardly be more different. Our trial procedure may discourage accurate fact finding.

It takes all sorts ...

I have previously noted Lord Rodger's dark humour. Unless he is one of those chaps who seems funnier the further away one gets from him, here he goes again:

" ... just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates. ...".

HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (7 July 2010), at para 78. I suspect he was assisted in writing that passage by what Lady Hale has called "the extremely bright young Judicial Assistants in the Supreme Court": opening address in 'Ten years on': A Multi-perspective Evaluation of the Human Rights Act – Salford Human Rights Conference 2010 (4-5 June 2010).

HJ isn't a criminal case, so I don't need to comment on it here.

I was surprised to hear, when she was interviewed on a radio programme during her recent visit to New Zealand, that Lady Hale sounds much different from what her somewhat tousled ra-ra-hockey-sticks appearance might suggest. She was incredibly patient with some rather mundane questions.

For discussion of HJ, see Aidan O'Neill QC, "Some Reflections on Religion, Sexuality and the Possible Transatlantic Implications of the HJ (Iran) v. Home Secretary [2010] UKSC 31" at UKSC blog 12 July 2010.

Free speech and foolishness

Once again our passionate little nation is in thrall to the Bain case (see my comments posted 8 June 2009). Last night a television documentary tried to persuade us that the acquitted David Bain should not receive compensation. At least that was its import; ostensibly it merely suggested that there was no case to be made against one of the five murdered victims, Robin Bain. At trial the defence had suggested that Robin was the killer.

There will always be differences of opinion over who was the murderer. People who were not at the trial and who did not hear all the witnesses and see all the evidence cannot possibly have worthwhile opinions on that issue. Even people who sat through the whole case disagree on its outcome. If people can't agree on whether there was a reasonable doubt, how can they agree on whether on the balance of probabilities the acquitted David Bain should receive compensation?

The case has almost left the law behind. It is now a form of entertainment, as is the expression of all ill-informed opinion. My own views are just as likely to be silly as those of anyone else who was not at the trial. I can argue either side, and in fact do, depending on who I wish to irritate. The tragedy has become a farce.

Multiple judgment cases: an illusory paradox

Sometimes multi-judgment cases challenge the analytical powers of readers. Especially when there is no headnote, and also when they seem to be of only marginal interest.

Thanks to David Cohen's interesting comments on McDonald v Chicago [2010] USSC No 08-1521 (28 June 2010) I can mention that state and local anti-gun laws might be unconstitutional. A headnote is provided for this case, but it is so complex that only students of US constitutional law would be motivated to study it.

What I do find interesting is Professor Cohen's point that this case is an example of a paradox. It seems (I rely on his analysis) that the reasons for holding the relevant law constitutional were accepted by more judges than those who found reasons to hold it unconstitutional, yet the outcome of the case was that the law was unconstitutional.

The "paradox" of there being an excess of judges supporting some of the reasons for what turns out to be the minority conclusion is illusory because the total judicial support for those reasons consists of dissenting judges who regard them as adequate, and majority judges who do not. The decision in the case is supported by reasons held to be adequate by the majority of judges. If any of the majority judges indicate support for reasons relied on by the minority, those judges are not thereby lending support to the dissenters' conclusion.

Was the relevant law in McDonald unconstitutional? Four justices held yes, because it infringed the due process part of the Fourteenth Amendment, and one justice held yes, because it infringed the privileges and immunities clause of that Amendment. So, five justices held the relevant law unconstitutional. That being the majority, that was the decision.

It is true, but irrelevant, that in some respects these majority justices recognised reasons that would have been insufficient to support their conclusion. Their partial agreement with reasons relied on by minority justices does not add to the tally of dissenting justices.

What matters for the result is how many justices found at least one reason to hold the relevant law unconstitutional. Five. The number of justices who found no reason to hold the law unconstitutional was four. It is a fallacy to say that a justice who finds only one reason to hold the law constitutional should vote constitutional.

The reasons for the decision of the Court are not the same as the reasons for the individual judgments. When asking what the case is authority for, one looks at the reasons for the decision of the Court: McDonald is (again, relying on Professor Cohen's summary) authority for the proposition that the due process requirements of the Fourteenth Amendment render unconstitutional the laws considered in that case.

Professor Cohen's "paradox" is not really a paradox. It is a mundane result of what is sufficient reason for a decision.

Now that you are in the mood for analysing multi-judge cases, have a look at R(Smith) v Secretary of State for Defence [2010] UKSC 29 (helpfully discussed by Alex Bailin QC and also by Aidan O'Neill QC). It deals with the extra-territorial effect of the European Convention on Human Rights, and American readers who see the big picture might compare it to Boumedeine v Bush, noted here 13 June 2008.

Drug discovery in liquor ban searches

One of the knotty little problems that crops up in the lower courts is whether a police search for alcohol in a person's possession in a liquor ban area can properly extend to a search for drugs, even if the initial search had been carried out illegally. I was reminded of this on reading R v Nolet [2010] SCC 24 (25 June 2010). This involved initial vehicle stoppage for transport regulation compliance, the discovery of a large amount of money, arrest for possession of proceeds of crime, a further search of the vehicle revealing a large quantity of cannabis, impounding of the vehicle and a later inventory search yielding evidence of transport licencing infringements.

What is of interest in the wider context is the treatment, by Binnie J delivering the judgment of the Supreme Court, of so-called mixed-purpose searches. One approach to this sort of problem is to argue that the regulatory search was really a sham and that the real purpose was to search for evidence of the more serious offending even though there were no grounds for such a search. At para 39 Binnie J rejects the predominant purpose inquiry and prefers a focus on whether the defendant's Charter rights have been breached.

Nolet also illustrates the proper approach to these problems which is to proceed by a step-by-step analysis of the facts.

As I began by mentioning liquor searches, I should say a bit more about them. Section 169 of the Local Government Act 2002 provides for police powers to search for liquor in the possession of a person in a liquor ban area. Important limitations on that search power are in s 170. The s 169 power does not contain a requirement that an officer must have reasonable grounds to believe that liquor will be found. Local bylaws, for example those enacted by Auckland City, do not restrict these searches to occasions where such reasonable grounds exist. But s 21 New Zealand Bill of Rights Act 1990 gives everyone the right to be secure against unreasonable search and seizure. On the Nolet approach, the question in any given case would be whether the particular search was a breach of s 21. The argument would be that lawful powers must be exercised reasonably.

If sufficient grounds for a liquor search existed, the search might be unlawful because of breach of s 170. For example, because of failure to give the person an opportunity to remove the liquor from the ban area. What would be the relevance of that illegality if the police had discovered drugs after completion of the search for liquor and after the illegality arose?

In deciding whether a search that yielded drugs was unreasonable, the grounds for the search would be assessed but by ignoring unlawfully obtained information. In the absence of any reason to believe that drugs would be found, the search that discovered them would be unreasonable. Whether evidence of the finding of the drugs would be admissible would then have to be determined by a balancing exercise (analogous to, but not the same as, that carried out in Nolet pursuant to Grant in relation to the evidence of licencing breach discovered during the final inventory search), pursuant to s 30 Evidence Act 2006. I would expect, in the light of case law, that if the drug offending was of such seriousness as to attract a starting point for sentencing of under four years' imprisonment, and if the improper search involved search of the defendant, a bag he carried, or the vehicle he was in, that the court would exclude the evidence.

But I may be wrong. Don't rely on my views.

Outsmarting the smart

With my 3 July 2008 comments on Gafgen v Germany still at the forefront of your consciousness, you will be surprised that I have let a few days slip by before referring to the Grand Chamber's decision in the same case: Gafgen v Germany [2010] ECHR 759 (1 June 2010). The Court held 11 to 6 that although there had been a breach of Mr Gafgen's article 3 right not to be subjected to inhumane treatment (para 131), there was no breach of his fair trial rights under article 6 (para 187-188). Mr Gafgen had not sought a monetary award for the breach of article 3, merely a retrial, but this was not awarded as he had received a fair trial (190-191).

The Grand Chamber reiterated the law on article 3 (para 87-93), and applied it to this case (107):

"In this connection, the Court accepts the motivation for the police officers' conduct and that they acted in an attempt to save a child's life. However, it is necessary to underline that, having regard to the provision of Article 3 and to its long-established case-law (see paragraph 87 above), the prohibition on ill-treatment of a person applies irrespective of the conduct of the victim or the motivation of the authorities. Torture, inhuman or degrading treatment cannot be inflicted even in circumstances where the life of an individual is at risk. No derogation is allowed even in the event of a public emergency threatening the life of the nation. Article 3, which has been framed in unambiguous terms, recognises that every human being has an absolute, inalienable right not to be subjected to torture or to inhuman or degrading treatment under any circumstances, even the most difficult. The philosophical basis underpinning the absolute nature of the right under Article 3 does not allow for any exceptions or justifying factors or balancing of interests, irrespective of the conduct of the person concerned and the nature of the offence at issue."

And, a remedy for breach of article 3 cannot be confined merely to compensation (119):

"In cases of wilful ill-treatment the breach of Article 3 cannot be remedied only by an award of compensation to the victim. This is so because, if the authorities could confine their reaction to incidents of wilful ill-treatment by State agents to the mere payment of compensation, while not doing enough to prosecute and punish those responsible, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity, and the general legal prohibition of torture and inhuman and degrading treatment, despite its fundamental importance, would be ineffective in practice (see, among many other authorities, Krastanov, cited above, § 60; Çamdereli, cited above, § 29; and Vladimir Romanov, cited above, § 78)."

This means that the fairness of the trial must be examined, because Mr Gafgen had exhausted his domestic remedies (146). It is a quirk of Strasbourg jurisdiction that the Court assesses fairness without reference to the admissibility of evidence, which is a matter for domestic courts (162-163), although this limitation is obscured by the importance of article 3 (165):

" ... However, particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3. The use of such evidence, secured as a result of a violation of one of the core and absolute rights guaranteed by the Convention, always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction ... ."

For example, confessions obtained in breach of article 3 have led to trials being held to be unfair irrespective of the role of such confessions in prosecution cases (166), and violence in the nature of torture leading to the discovery of real evidence will also result in trial unfairness (167). Similarly, breach of the right to silence and the privilege against self-incrimination also lie at the heart of the right to a fair trial (168). The article 3 rights are absolute (176):

"While having regard to the above interests at stake in the context of Article 6, the Court cannot but take note of the fact that Article 3 of the Convention enshrines an absolute right. Being absolute, there can be no weighing of other interests against it, such as the seriousness of the offence under investigation or the public interest in effective criminal prosecution, for to do so would undermine its absolute nature (compare also, mutatis mutandis, Saadi v. Italy, cited above, §§ 138-39). In the Court's view, neither the protection of human life nor the securing of a criminal conviction may be obtained at the cost of compromising the protection of the absolute right not to be subjected to ill-treatment proscribed by Article 3, as this would sacrifice those values and discredit the administration of justice."

The Court then noted that the article 6 right is not absolute (178):

"However, contrary to Article 3, Article 6 does not enshrine an absolute right. The Court must therefore determine what measures are to be considered both necessary and sufficient in criminal proceedings concerning evidence secured as the result of a breach of Article 3 in order to secure effective protection of the rights guaranteed by Article 6. As established in its case-law (see paragraphs 165-167 above), the use of such evidence raises serious issues as to the fairness of the proceedings. Admittedly, in the context of Article 6, the admission of evidence obtained by conduct absolutely prohibited by Article 3 might be an incentive for law-enforcement officers to use such methods notwithstanding such absolute prohibition. The repression of, and the effective protection of individuals from, the use of investigation methods that breach Article 3 may therefore also require, as a rule, the exclusion from use at trial of real evidence which has been obtained as the result of any violation of Article 3, even though that evidence is more remote from the breach of Article 3 than evidence extracted immediately as a consequence of a violation of that Article. Otherwise, the trial as a whole is rendered unfair. However, the Court considers that both a criminal trial's fairness and the effective protection of the absolute prohibition under Article 3 in that context are only at stake if it has been shown that the breach of Article 3 had a bearing on the outcome of the proceedings against the defendant, that is, had an impact on his or her conviction or sentence."

I pause here to comment that treating the article 6 right as "not absolute" must be done with care. Article 6 does not contain one right only. The right to a "fair and public hearing" is not subject to limitations, but it is "derogable" in times of "war or other public emergency threatening the life of the nation" (article 15). That is the sense in which the right to a fair hearing is not an absolute right. The first sentence of para 178 did not need to refer to the non-absolute nature of the right to a fair hearing, as the second sentence makes it plain that effective protection of this right must be secured.

As noted in my earlier comment on this case, events at trial eclipsed the breach of article 3, and the admission at trial of the challenged evidence did not affect the fairness of the hearing.

Here, Mr Gafgen had made two confessions at trial, the second of which was crucial to his conviction (34-35,184). There is a little judicial sleight of hand on this (183):

"Moreover, the applicant, who was represented by defence counsel, stressed in his statements on the second day and at the end of the trial that he was confessing freely out of remorse and in order to take responsibility for his offence despite the events of 1 October 2002 (see paragraph 32 above). He did so notwithstanding the fact that he had previously failed in his attempt to have the impugned real evidence excluded. There is no reason, therefore, for the Court to assume that the applicant did not tell the truth and would not have confessed if the Regional Court had decided at the outset of the trial to exclude the impugned real evidence and that his confession should thus be regarded as a consequence of measures which extinguished the essence of his defence rights." [emphasis added]

The non sequitur in the italicised passage is obvious. A "free" and "remorseful" confession after a ruling that real evidence is admissible is not really "free" and "remorseful" – to be such it would need to have been given before the admissibility ruling.

Gafgen illustrates how an accused person's legal manoeuvring at trial can ultimately produce a result that he didn't want. The final appellate court makes the final legal manoeuvre.

I do not think that the issue of trial fairness should come down to the glib bluff-calling that occurred here. The Strasbourg Court needs to decide whether trial fairness means the same thing for all member states. It needs to define what trial fairness means, and to avoid irrelevant references to derogation. It needs to decide whether admissibility of improperly obtained evidence is a question that is relevant to the determination of trial fairness, and whether deference to local decisions on admissibility is necessarily appropriate. The Court needs to sort out the relationship between exclusion of evidence for reasons of public policy and exclusion of evidence to protect trial fairness. A ruling on trial fairness requires detailed consideration of the critical decisions made at trial in order to determine when they are a product of impropriety.

My suggestions: If all people are equally deserving of the protection of rights then the right to a fair trial must mean the same thing for everyone. Recognising that laws differ does not mean that trial fairness differs. A fair trial is one in which the law, whatever it may be, is applied correctly to facts that are determined impartially. Impartially means without bias and without an error that affects the proper assessment of what is admissible evidence and what is the true probative value of the admissible evidence. The admissibility of improperly obtained evidence is governed by judgment involving a balancing of policy values. If that balancing judgment is done incorrectly, there can be an impact on trial fairness through the creation of partiality in the determination of the facts. Deference to local decisions is not appropriate because a decision about trial fairness requires assessment of the correctness of admissibility decisions. An admissibility decision can affect the tactical decisions made by an accused in the course of conducting a defence, so if evidence has been wrongly admitted it is necessary to ask whether that could have affected the proper determination of the facts.

The trial fairness question in this case comes down to whether the trial court was correct to admit the real evidence. This is an issue of whether the real evidence is "fruit of the poisoned tree", and that, in the German court, was decided by a balancing of values: see the passage quoted in para 27 of the Chamber judgment Gafgen v Germany [2008] ECHR 565. In other jurisdictions this issue may be treated as a question of causation: whether there remains a causal link between the improper official conduct and the finding of the real evidence. Sometimes it is treated as a question of time and context. Notwithstanding the varied approaches to the admissibility of downstream evidence, the question here is whether the German approach is wrong. It would be difficult to show that it is. The Grand Chamber avoided dealing with this interesting problem; vile facts do not present a good opportunity for development of the law on trial fairness.

Expert opinions going too far

Experts should not express opinions about whether sexual activity was by consent without sufficient foundation: Tuhura v R [2010] NZCA 246 (10 June 2010).

The accused had been convicted of vaginal and anal sexual violation. His defence was consent. Of central importance was his claim that the complainant had invited him to return to her residence later that night. There was contested medical evidence, to the effect that injuries to the complainant were unlikely to be the result of consensual intercourse.

The Court of Appeal took the opportunity to review cases where expert opinion of this nature had been regarded as being without foundation, and concluded that this was such a case. The Court asked that its judgment be distributed to prosecutors, defence counsel and relevant doctors.

The kinds of injuries that have been held not to support an opinion that they were unlikely to be the result of consensual intercourse are (and here you may want a map):

• Three fresh lacerations in the area of the fossa navicularis
  
• Lacerations in the region of the anus, no injuries to the hymen or posterior forchette
  
• Tenderness and abrasions in the vaginal area, thickish brown discharge with pieces of traumatised tissue, some bruising
  
• Split in vaginal area of triangular shape in surface skin, 1 cm base and 2 cm on sides, quite red
  
• Three minor tears in vaginal area, longest 5 mm at mouth of vagina, tender areas at vaginal entrance and deep in vagina
  
• Superficial graze about 5 mm long on hymen
  

The problem is that there are no studies of injuries sustained during consensual sexual activity with which to compare those alleged to have been incurred without consent.

"56. ... In cases where the injuries suffered by the complainant are not such that a doctor can properly express a view as to whether the sexual contact prior to the injuries being incurred was consensual or not, the doctor should not be asked to express a view. If the question is asked, the response should indicate that he or she cannot properly express a view one way or the other. The issue of consent will be at the forefront of the jury's mind. There is a real risk that if an expert suggests that injuries are indicative of non-consensual sexual activity, jurors may decide the case on the false understanding that the fact that the complainant suffered injuries makes it more likely that the associated sexual contact was non-consensual."

The Court added (60) that in cases of more serious injury an opinion as to consent might be warranted.

Admission of the opinion evidence of non-consent here was a miscarriage of justice. This required the Court to consider the proviso, in particular to apply Matenga v R [2009] NZSC 18 (commented on here, 20 July 2009, and see also 1 January 2010).

There is a small error in the judgment in the present case, Tuhura:

"89. We are satisfied that, apart from the admission of the contested medical evidence, the trial was fair. ..."

This seems to say, the trial was not fair because of the admission of the contested medical evidence.

Contrast that with the point made in Matenga, footnote 20:

"In R v Condon [2007] 1 NZLR 300 (SC) at paras [77] and [79] this Court equated breach of the right to a fair trial with a substantial miscarriage of justice."

That means the proviso cannot apply where the trial is unfair. In Matenga the Supreme Court continued (31), in a passage included in a quotation from that case in Turuha at 67:

"Before applying the proviso the Court must also be satisfied that the trial was fair [footnote: The assessment of fairness is to be made in relation to the trial overall: Condon at para [78]] and thus that there was no breach of the right guaranteed to the accused by s 25(a) of the Bill of Rights."

Plainly, the Court in Tuhura meant, in para 89, to say "notwithstanding" instead of "apart from", so that the passage quoted should have read:

"89. We are satisfied that, notwithstanding the admission of the contested medical evidence, the trial was fair. ..."

I emphasise this point because to some readers this case might open the door for submissions that a conviction at an unfair trial can be upheld on appeal. Matenga does not address in detail the relationship between a substantial miscarriage of justice and a fair trial, other than to say that an unfair trial is a substantial miscarriage of justice. It seems that, once an appellate court decides that a conviction was inevitable, being properly based on admissible evidence, the trial could only be called unfair if there had been a reasonable apprehension of bias, or if there had been an inequality of arms disadvantaging the defence, or if fresh evidence raised a reasonable doubt as to the safety of the conviction in the mind of the appellate court. My view is that "trial fairness" deserves its own heading in judgments in this area, because it addresses these distinct concerns.

The Tuhura Court concluded that there was no support in the evidence for the accused's contention that the complainant had invited him to her residence, and that in the absence of such an invitation the defence of consent could not raise a reasonable doubt. The appeal was dismissed.

Update: The Supreme Court refused leave to appeal: Tuhura v R [2010] NZSC 128 (2 November 2010).

Weighing: fact or law?

Where a judge has to balance one consideration against another, is the determination of the weight to be given to each consideration a question of fact or of law?

Yesterday the United Kingdom Supreme Court held that weight is a question of fact: Secretary of State for the Home Department v AP [2010] UKSC 24 (16 June 2010), at para 12:

"The weight to be given to a relevant consideration is, of course, always a question of fact and entirely a matter for the decision-maker – subject only to a challenge for irrationality which neither has nor could have been advanced here. All this is trite law and indeed the contrary was not argued before us."

The context here was whether the conditions of a control order made under the Prevention of Terrorism Act 2005[UK] breached article 5 of the European Convention on Human Rights, the right to liberty. The Court held that restrictions on liberty that might otherwise have been justified might be rendered unjustifiable when a breach of the right to respect for private and family life (article 8) is taken into account. Because article 8 is relevant it is capable of tipping the balance.

That sort of balancing has wider application than just control orders. Bail conditions must be reasonable. Evidence improperly obtained may or may not be admissible, depending on a balancing of public and private interests. Are these balancing exercises always questions of fact unless they are done irrationally?

The question is significant where there are limitations on rights of appeal to questions of law.

As I noted earlier (18 May 2010) in R v Gwaze [2010] NZSC 52 the New Zealand Supreme Court held that decisions on the admissibility of evidence are decisions on questions of law. Such decisions can involve balancing of competing rights, particularly under s 30 Evidence Act 2006. If these were questions of law, the weight given to relevant considerations would not be entirely for the decision-maker. What seemed "trite" to the UKSC in the context it was addressing in AP is certainly not trite in the Gwaze context.

Free speech and fair trials

Prospective jurors can safely be told anything about an accused's past. That radical proposition receives some support from the High Court of Australia in today's decision in Dupas v R [2010] HCA 20 (16 June 2010).

The fact that the accused had been previously convicted of two murders that happened in 1997 and 1999 was widely publicised in the Australian media, so that on his present trial for a third murder it was submitted on his behalf that the proceedings should be stayed because he could not get a fair trial.

Untenable as a general proposition though that may be, the question of whether a stay is required must be addressed in the circumstances of each case. When this is looked at from the post-trial appeal perspective, the appellate court can examine the measures that were taken to give effect to the accused's right to a fair hearing.

A general proposition about stays that is usually advanced is that they are only given in extreme cases. The High Court held (18) that the following should be regarded as an authoritative statement of principle:

"[A] permanent stay will only be ordered in an extreme case [citing
Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 34] and there must be a fundamental defect 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences' [citing Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 111 per Wilson J; [1980] HCA 48]. And a court of criminal appeal, before it will set aside a conviction on the ground of a miscarriage of justice, requires to be satisfied that there is a serious risk that the pre-trial publicity has deprived the accused of a fair trial. It will determine that question in the light of the evidence as it stands at the time of the trial and in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial." R v Glennon (1992) 173 CLR 592; [1992] HCA 16 at pp 605-606 per Mason CJ and Toohey J.

The power to stay proceedings, described as an "inherent power" by Lord Blackburn in Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 at 220-221, has what is broadly called a constitutional dimension, which makes the courts reluctant to interfere with decisions whether to prosecute or to continue with prosecutions: Moevao v Department of Labour [1980] 1 NZLR 464 at 481, and Fox v Attorney-General [2002] 3 NZLR 62 at para 28.

Thus the obvious common-sense objections to allowing stays to recidivists whose records are publicised are supported by these strains of legal principle.

The law must assume that juries will obey instructions given to them by trial judges. The High Court noted this important point as a counter to the denial of the "social imperative" that requires that an accused be brought to trial, that would occur if the media were able to render an accused unable to be tried. The Court referred (26) to the remarks of Hughes J, endorsed by the Court of Appeal, in R v Abu Hamza [2007] QB 659 at 685-686:

"Extensive publicity and campaigns against potential defendants are by no means unknown in cases of notoriety. Whilst the law of contempt operates to minimise it, it is not always avoidable, especially where intense public concern arises about a particular crime and a particular defendant before any charge is brought. Jurors are in such cases capable of understanding that comment in the media might or might not be justified and that it is to find out whether it is that is one of their tasks. They are capable of understanding that allegations which have been made may be true or may not be and that they, the jury, are to have the opportunity and responsibility of hearing all the evidence which commentators in the media have not and of deciding whether in fact the allegations are true or not. They are not surprised to be warned not to take at face value what appears in the media, nor are they these days so deferential to politicians as to be incapable of understanding that they should make no assumptions about whether any statements made by such people are justified or not. They are also capable of understanding and habitually apply the direction that they are given about the standard of proof."

True, there may sometimes be perverse verdicts favouring the accused (27):

" ... in Gammage v The Queen [[1969] HCA 68; (1969) 122 CLR 444 at 463; [1969] HCA 68] Windeyer J expressed the governing principle in terms which acknowledged that the jury room might not be a place of undeviating intellectual and logical rigour (a point made by Callinan J in Gilbert v The Queen [[2000] HCA 15; (2000) 201 CLR 414 at 440 [96]; [2000] HCA 15]) by saying:

"A jury in a criminal case may sometimes, from compassion or prejudice or other ulterior motive, fail to perform their sworn duty to determine the case before them according to the evidence. If they do so in favour of the prisoner, and not of the Crown, the law is powerless to correct their dereliction. They must be assumed to have been faithful to their duty. Their verdict must be accepted."

See also my comments on perverse verdicts (R v Wang 14 February 2005, R v Wanhalla 25 August 2006; R v Krieger 27 October 2006).

It comes down to this (29):

"What, however, is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations. That capacity is critical to ensuring that criminal proceedings are fair to an accused."

And the point is not so much the extreme or rare nature of the circumstances needed to support a stay, as the assurance of trial fairness (35):

"Characterising a case as extreme or singular is to recognise the rarity of a situation in which the unfair consequences of an apprehended defect in a trial cannot be relieved against by the trial judge during the course of a trial. There is no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered. In seeking to apply the relevant principle in Glennon, the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences."

There is a risk of misinterpretation of the last sentence in para 37 of the High Court's judgment. The para reads:

"A further consideration is the need to take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial [footnote: R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 598 per Mason CJ and Toohey J], the "social imperative" as Nettle JA called it, as a permanent stay is tantamount to a continuing immunity from prosecution [footnote: R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 599 per Mason CJ and Toohey J]. Because of this public interest, fairness to the accused is not the only consideration bearing on a court's decision as to whether a trial should proceed [footnote: Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 33 per Mason CJ]."

The dicta on this in Jago precede the common law's recognition of the accused's right to a fair trial as an absolute right which is not to be reduced by being balanced against other rights (see my comments on R(Ullah) v Special Adjudicator 3 September 2004; Grant v R (Jamaica) 20 January 2006; Williams v R (Jamaica) 26 April 2006; Condon v R 24 August 2006; R v Davis 19 June 2008; Al-Khawaja and Tahery v United Kingdom 27 January 2009; R v Grant 18 July 2009). It seems likely that what the High Court means here is that the "social imperative" will be given as full effect as is possible, consistent with the absolute right of the accused to a fair trial.

In the present case there was held to have been no unacceptable risk of trial unfairness and the appeal was dismissed. This case did not require examination of the full extent of the inherent power to stay proceedings.

This case illustrates that jury trials can be sufficiently robust to function correctly in the context of vigorously exercised freedom of speech.

The significance of silence

Hush! My silence means I might speak! My silence has a Beckettian significance.

"Today's decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded. Today's broad new rules are all the more unfortunate because they are unnecessary to the disposition of the case before us. I respectfully dissent."

Sotomayor J (joined by Stevens, Ginsburg and Breyer JJ) in Berghuis v Thompkins [2010] USSC No 08-1470, 1 June 2010, criticised the majority's undermining of the "heavy burden" on the prosecution to show that a suspect waived his Miranda right to silence, and the majority's acceptance of silence in the face of police questioning as not being an assertion of the right to remain silent.

She pointed out that the question of waiver has been treated as entirely different from the question of invocation of the right to silence. It was not for the accused to prove that he invoked the right, it was for the prosecution to prove that he waived it, citing Smith v. Illinois, 469 U. S. 91, 98 (1984) (per curiam). This burden was characterised as heavy in Arizona v. Roberson, 486 U. S. 675, 680 (1988).

In Berghuis v Thompkins the suspect had remained silent (except for an occasional single word non-committal response, and commenting that his chair was hard, and that he did not want a peppermint) throughout two and three quarter hours of police interrogation, until he was asked if he had prayed to God for forgiveness for the shooting, to which he replied with only one word, "Yes".

The opinion of the Court was delivered by Kennedy J. The majority denied that a custodial interrogation was inherently coercive. The Miranda right to silence is to be treated in the same way as the Miranda right to counsel: it must be invoked unambiguously and once invoked the interrogation must stop. Thus here it was for Mr Thompkins to say that he did not want to speak. Waiver occurred when he answered the question. There was, said the majority, no evidence that Mr Thompkins did not understand what he was giving up when he spoke, or that his answer was in any sense involuntary.

The police do not, held the majority, need to establish a waiver at the outset before embarking on an interrogation. If the suspect understands his rights he can review his position as the questioning proceeds, if he wishes. By saying he will remain silent he can terminate the interrogation.

"The prosecution therefore does not need to show that a waiver of Miranda rights was express. An "implicit waiver" of the "right to remain silent" is sufficient to admit a suspect's statement into evidence. Butler, [441 U. S.] at 376. Butler made clear that a waiver of Miranda rights may be implied through "the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver." 441 U. S., at 373. The Court in Butler therefore "retreated" from the "language and tenor of the Miranda opinion," which "suggested that the Court would require that a waiver be 'specifically made.' " Connecticut v. Barrett, 479 U. S. 523, 531–532 (1987) (Brennan, J., concurring in judgment)."

So here, in the absence of an express invoking of the right to silence, once the prosecution established that the suspect understood the rights, waiver of the right was established by what the majority regarded as a course of conduct: prolonged silence in the face of interrogation, and then an incriminating one-word response.

"In sum, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Thompkins did not invoke his right to remain silent and stop the questioning. Understanding his rights in full, he waived his right to remain silent by making a voluntary statement to the police. The police, moreover, were not required to obtain a waiver of Thompkins's right to remain silent before interrogating him."

Would the same result have occurred in Canada? See R v Turcotte, discussed here 5 October 2005.

One of the law's little dishonesties (to add to the one I mentioned on 13 January 2010 and in continuation of the theme noted on 3 March 2005) found in many jurisdictions, is the giving of rights in a constrained way, without clear explanation of how they can be exercised. Here is the advice Mr Thompkins was given pursuant to Miranda:

"NOTIFICATION OF CONSTITUTIONAL RIGHTS AND STATEMENT

"1. You have the right to remain silent.

"2. Anything you say can and will be used against you in a court of law.

"3. You have a right to talk to a lawyer before answering any questions and you have the right to have a lawyer present with you while you are answering any questions.

"4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one.

"5. You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned."

I would have thought, on the basis of what he had been told in para 5 of this notification, that in not answering questions Mr Thompkins was exercising the right in para 1. But given that silence in the face of questioning is not in law an assertion (or "invocation") of the right to remain silent, and that silence does not preclude some future waiver of the right, the Court should have taken the opportunity to make the statement of rights clearer. It should have added to para 5 a statement that questioning will stop when the person asks the police to stop questioning.

The durability of inducements

R v SGT [2010] SCC 20 (27 May 2010) gives us a reminder of some fundamentals about life and law.

• A person who would, if charged with a particular offence, plead not guilty, should not confess guilt to the police.
  
• Nor should he rely on any suggestion from the police that if he confesses he will not be charged.
  
• Nor should he confess guilt to any person who could be called as a witness against him.
  
• 
  

These self-evidently sensible stratagems seem often to be overlooked, and when they are it is difficult for defence counsel to get such blithe confessions excluded. The second sort of confession listed above should, if there is evidence that it occurred as a result of an improper inducement by a person in authority, be excluded, but confessions to people who do not exercise a relevant authority are almost impossible to exclude. There would need to be shown to be some unfairness in using the evidence, if there was no operative improper inducement.

There are some distinctions in terminology that can make discussion more precise. As Charron J, delivering the majority judgment in SGT, held at 20, the term "admission" is apposite for a confession made to someone who is not in authority, and "confession" is a confession made to a person in authority. The different usage is just a reminder that the confession rules apply to the latter but not to the former. Any statement, whether an admission or a confession, must always be voluntary. Charron J set out (21-23) the relevant aspects of the "person in authority" requirement which had been addressed in R v Hodgson, 1998 CanLII 798 (S.C.C.), [1998] 2 S.C.R. 449. After explaining why that didn't apply in SGT, she then considered the "derived confessions rule", the leading case on which is R v I (LR) and T (E), 1993 CanLII 51 (S.C.C.), [1993] 4 S.C.R. 504.

This rule can be thought of as embracing at least some of the fairness considerations that could be relevant. Essentially it recognises that there can be situations where an earlier inducement by a person in authority continues to operate on the accused's mind and to influence his decision to make a subsequent confession to someone else. The latter confession is not then the free and voluntary product of the accused's will. Was the factor that tainted the original confession a substantial cause of the second? Relevant considerations can be the time between the statements, whether the second was made by reference to the first, whether there were other similarities in the circumstances in which the two statements were made, whether the second could have been prompted by new evidence (Charron J at 29).

This derived confessions rule has applied, as the terminology indicates, to confessions, and the question now was whether it also applied to admissions (30).

Here the Court split:

"[32] I respectfully disagree with Fish J. that "as a matter of principle and logic" it is clear that "derived confessions need not be made to a person in authority in order to be found inadmissible" (para. 44). As a matter of principle, this broad assertion ignores the distinction between confessions and admissions discussed earlier. As for logic, much will depend on the facts of the particular case. Logic may have compelled the conclusion reached in G. (B.)
[1999 CanLII 690 (S.C.C.), [1999] 2 S.C.R. 475] where the later statement, which actually contained the earlier tainted confession given to the police, was made to a psychiatrist during the course of a court‑ordered examination into his mental condition. It may not be so compelling in a case where, for example, the accused repeats the contents of the tainted confession to a personal friend who has no connection to the prosecution."

It was not necessary for the majority to decide the point, it being sufficient for the purposes of this case to assume that it was arguable that the second statement could be excluded if there were to be a sufficient evidentiary basis connecting the earlier inducement to the second statement. This could be, if not on a common law derived confessions basis, "perhaps on a Charter basis" (33):

"The distinction between the two possible bases for exclusion remains important as the application of the common law "derived confessions rule" would result in the automatic exclusion of the tainted statement, whereas under the Canadian Charter of Rights and Freedoms the question of exclusion would fall to be determined under s. 24(2)."

It was significant here that the defence had consented to the admission of the second statement, and that the trial judge was entitled to rely on counsel making responsible tactical decisions (36-37). The record of the evidence did not suggest that such an objection would have succeeded: there was not the required evidentiary link between the inducement and the second statement.

This ground of appeal having failed, the case was remitted to the Saskatchewan Court of Appeal for determination of other appeal grounds.