Abuse of process, stay of proceedings, and integrity

The inherent power of a court to stay criminal proceedings on grounds of abuse of process is a discretionary matter, not to be fettered by rigid classifications of kinds of official misconduct: Warren v Attorney General of the Bailiwick of Jersey (Court of Appeal of Jersey) [2011] UKPC 10 (28 March 2011).

There are, said Lord Dyson delivering the leading judgment, two categories of case in which a stay may be justified: (i) where a fair trial could not be held; (ii) where continuing the proceedings would offend the court's sense of justice and propriety [22, quoting R v Maxwell [2010] UKSC 48 at 13, a decision not yet published].

These should not be confused, and it is unhelpful to refer to fairness when discussing the second category (Lord Kerr at [84]).

The signal here [this is me now, not a Lord] is that what is often referred to as "public policy fairness" should now be called something like "public policy grounds" or "the public policy category".

The circumstances of each case are critical, and the classic cases - R v Looseley [2001] 1 WLR 2060; R v Latif [1996] 1 WLR 104; R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42 - must be read in this light. Lord Dyson added [26]:

"The Board recognises that, at any rate in abduction and entrapment cases, the court will generally conclude that the balance favours a stay. But rigid classifications are undesirable. It is clear from Latif and Mullen [[2000] QB 520] that the balance must always be struck between the public interest in ensuring that those who are accused of serious crimes should be tried and the competing public interest in ensuring that executive misconduct does not undermine public confidence in the criminal justice system and bring it into disrepute. It is true that in Bennett the need for a balancing exercise was not mentioned, but that is no doubt because the House of Lords considered that the balance obviously came down in favour of a stay on the facts of that case (the kidnapping of a New Zealand citizen to face trial in England)."

Any virtue that might have been thought to attach to Mr Bennett, through giving his name to a leading case on police misconduct, is dispelled in the present case by Lord Hope, who adds at [64-68] a detailed examination of the facts of that case.

Does the emphasis on the facts of each case erode the value of these cases as precedents? Does the balancing exercise leave the law unacceptably vague? On appeal the question will be whether the decision to refuse a stay was perverse or was one which no reasonable judge could have reached [51].

Judgments may tend to pull in two directions: to condemn the misconduct of officials while at the same time holding that a stay was not required. That was the position here. Looking at the misconduct from a (considerable) distance – the placing of audio surveillance equipment in a car without lawful authority and giving the impression that permission had been obtained – this was not a case of serious misconduct. But one would think it was, given the stern protestations of Lord Dyson [45-46], Lord Hope [61-62, 68], Lord Rodger [70-71], Lord Brown [78], and Lord Kerr [81-82]. There were circumstances that mitigated the wrongfulness, summarised by Lord Dyson at [47-50].

The Board found useful the summary of the balancing exercise appropriate to the second category of abuse of process cases (no balancing being appropriate where a trial would not be fair) given by Professor A L-T Choo in Abuse of Process and Judicial Stays of Criminal Proceedings, 2nd ed (2008), at p 132:

"The courts would appear to have left the matter at a general level, requiring a determination to be made in particular cases of whether the continuation of the proceedings would compromise the moral integrity of the criminal justice system to an unacceptable degree. Implicitly at least, this determination involves performing a 'balancing' test that takes into account such factors as the seriousness of any violation of the defendant's (or even a third party's) rights; whether the police have acted in bad faith or maliciously, or with an improper motive; whether the misconduct was committed in circumstances of urgency, emergency or necessity; the availability or otherwise of a direct sanction against the person(s) responsible for the misconduct; and the seriousness of the offence with which the defendant is charged."

Lord Kerr summarised [83] the principles that have emerged from recent jurisprudence. He emphasised that stays are not imposed to discipline the police, but instead are designed to protect the integrity of the criminal justice system.

The decision in this case may have been finely poised, but it is not surprising: given the extenuating circumstances and the relatively slight (compared to being kidnapped or entrapped) breach of the defendant's rights, and the fact that the offending was importation of cannabis (180 kg, worth over £1m), it is not unreasonable to conclude that the integrity of the justice system did not require a stay of proceedings.


No one likes to disagree with the Privy Council, but I have to doubt whether it is appropriate to address the need for a stay of proceedings as a balancing exercise. Either misconduct is sufficiently egregious to require a stay, or it is not. The balancing factors mentioned in this case are essentially those applicable to the discretion to exclude improperly obtained evidence. The balance is between factors relevant to the seriousness of the impropriety and factors relevant to the seriousness of the alleged offending. This similarity in reasoning raises the question of the relationship between exclusion and the stay of proceedings.

The stay is clearly the more extreme response, and factors justifying it can be put at the end of an imaginary continuum of impropriety, most of which could be a basis for exclusion of evidence unless the offending is too serious. The seriousness of the offence is properly part of the balancing exercise used to determine the admissibility of improperly obtained evidence. But when the level of impropriety is sufficiently high to take the potential remedy beyond exclusion of evidence to a stay of proceedings, is there a level of offending that would make a stay inappropriate? If there were, it would also have to make exclusion of the improperly obtained evidence inappropriate, otherwise where that evidence was central to the prosecution case the proceedings would terminate. Once evidence is ruled admissible after the balancing exercise, because the alleged offending outweighed the impropriety, an application for a stay would be futile. If, on the other hand, the evidence was excluded because the impropriety outweighed the seriousness of the offending, an application for a stay might in extreme cases be successful and if so, that would be because of the seriousness of the impropriety. 

There would be some cases where the impropriety, although sufficient to require exclusion of the improperly obtained evidence, was insufficiently serious to warrant the response of a stay. That would be because of the nature of the impropriety, not because of the seriousness of the alleged offending. But where the impropriety was sufficiently serious to justify a stay, it would be sufficient for that purpose no matter how serious the offending. The assessment of the seriousness of the impropriety would be an exercise of judgment, taking into account matters relevant to the impropriety. The judgment would be about whether in those circumstances a stay was necessary to uphold public confidence in the integrity of the judicial process. It would be wrong to say that a prosecution should proceed (because of the seriousness of the alleged offending) even though proceeding would compromise the integrity of the judicial process.

For a glance into the future, see Wilson v R [2015] NZSC 189 (14 December 2015), where the Court described the decision as to whether a stay was warranted in circumstances of investigatory impropriety as a balancing exercise, where the seriousness of the impropriety was balanced against the need to uphold public confidence in the integrity of the judicial process (at [60], Elias CJ dissenting on this point at [149]). I side with the Chief Justice on this.

The stay of proceedings can be used in wider contexts than improperly obtained evidence, and in those the seriousness of the alleged offending may well be a relevant factor. Delay, multiplicity of charges, re-litigation of decided issues, improper motive in charging or prosecutorial reneging on an agreement as to charge can all give rise to issues of the appropriateness of a stay, and the seriousness of the alleged offending could properly be a factor in the decision. 

Disobedient fact-finders

For an interesting article on the adverse effects of a rule (as opposed to a discretion) excluding improperly obtained evidence, and the ways in which fact-finders can be biased by knowledge of excluded evidence or by suspicion that evidence has been excluded, see Tonja Jacobi, "The Law and Economics of the Exclusionary Rule", available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1783863

The author cites studies that suggest juries do not obey judicial directions, and even go to the extent of counter-intuitively reasoning that "if I am innocent I may as well commit offences because if tried I would be likely to be convicted even if innocent." We need to know how valid are the studies that are cited in this paper.

Using relevance to prevent unfairness

Today's decision of the High Court of Australia in Stubley v Western Australia
[2011] HCA 7 is noteworthy on three points.

The amazing legislation in Western Australia governing the admissibility of propensity evidence.

Section 31A(2) of the Evidence Act 1906 (WA) provides:

"(2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers —

(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial."

It is para (b) that makes sensible people sit up and wonder. It posits a situation where fair minded people might think that something can be more important than the risk of an unfair trial. Normal people would think that when a risk of trial unfairness becomes unacceptably high, the risk must be avoided (by exclusion of the challenged evidence), regardless of what public interest there might be in adducing evidence of the defendant's guilt. That is, even people who appear to be guilty of the most hideous crimes are entitled to be tried fairly. But not, apparently, in Western Australia.

Differing analyses of relevance

The facts of the case on appeal require attention to illustrate this point, but more generally the case illustrates how senior judges can differ on what is in issue in a case. The majority (Gummow, Crennan, Kiefel and Bell JJ) held that the evidence in contention was not relevant to any issue, and a retrial was ordered, whereas Heydon J dissented, holding that there were live issues on which the evidence had probative value.

Stratagems and spoils (smile, Bard)

Heydon J draws attention to the significance of concessions by the defence on the scope of admissible prosecution evidence. The majority did not consider that the case required examination of this.

A clever defence tactic is to spoil the prejudicial effect of detailed prosecution evidence by conceding that aspects of it are not in issue. Where there is no issue, the theory goes, the point is not a matter on which proof is needed, or indeed permitted. Evidence must be relevant to a matter in issue.

Heydon J recognised that this was not an appropriate case to explore these stratagems, as no such techniques were used here.

Sentencing the reformed offender

The theme of maximum flexibility for a judge in fixing a sentence that fits both the crime and the offender, recently discussed here in relation to guideline judgments, is also present in Pepper v United States, USSC No 09-6822, 2 March 2011.

Pepper illustrates the relevance of post-sentencing rehabilitation when a sentence is reconsidered on appeal. The advisory guidelines (United States v Booker, 543 U.S. 220 (2005), discussed here on various occasions from 13 December 2007) could be departed from to recognise rehabilitation, and legislation to the contrary effect was declare invalid.

Possession of the fullest information possible on the offender's life and characteristics has long been held to be essential to selection of an appropriate sentence: Sotomayor J delivering the opinion of the Court in Pepper, citing Williams v New York, 337 U.S. 241, 246-247. Thomas J dissented in Pepper, on the grounds that the guidelines should be mandatory. He has held to this line previously, apparently not thinking that he should revise his views to conform to the law which he has no chance of changing.

Confronting imaginary emergencies

Michigan v Bryant, USSC No 109-150, 28 February 2011, continues the line of cases which purports to bring the reliability exception to the rule excluding hearsay into interpretation of the Confrontation Clause of the Sixth Amendment. See my 27 June 2008 comments on Giles v California, 554 U.S. 353 (2008). Bryant is a rather questionable decision on its facts, as Scalia J vigorously points out in his dissent.

To achieve admission of the evidence - the mortally wounded victim told the police who had shot him - the majority (Sotomayor J, joined by Roberts CJ and Kennedy, Breyer and Alito JJ, with Thomas J separately concurring) assessed the facts "objectively" from the points of view of the victim (the "declarant") and of the police who questioned him. Perhaps they were pushed to this curious approach because there was no evidence that the emergency which was necessary to escape the exclusion of the evidence actually existed: see Scalia J, slip op., pp 9–10; the majority said that the declarant and the police should have thought it did. That is, the majority held that there was an objective emergency and the declarant's objective purpose (not his actual purpose, but the purpose he should have had) was to help the police meet this emergency, so what he said was not testimonial and the confrontation clause did not apply.

The Confrontation Clause states:

"In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."

Witnesses are those who bear testimony, and testimony means "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact": Crawford v. Washington, 541 U. S. 36, at 51.

Those of us who do not have to worry about the Confrontation Clause can still take an interest in the majority's strange reasoning. I exempt Thomas J from this criticism, as he simply focused on whether the declarant's statement was "testimonial" within the meaning of that term in the Sixth Amendment and held that it was not because the interrogation here did not have the characteristics of a formalised dialogue with indicia of solemnity. He thus avoided trying to reconstruct the primary purpose of the participants. But the reasoning that constitutes the opinion of the Court is very odd.

The Court addresses the purpose component of testimony objectively (slip op., p 13):

"... the relevant inquiry into the parties' statements and actions is not the subjective or actual purpose of the particular parties, but the purpose that reasonable participants would have had, as ascertained from the parties' statements and actions and the circumstances in which the encounter occurred."

This undermines the basis for the reliability exception, which is that the circumstances as perceived by the speaker who is no longer available as a witness were such as to make fabrication unlikely. But the Court would say that even if the declarant did not realise that he needed to speak urgently, he should have realised that urgency existed and accuracy was required.

Further, as Scalia J points out, the Court is giving judges the power to do what they like:

"If the dastardly police trick a declarant into giving an incriminating statement against a sympathetic defendant, a court can focus on the police's intent and declare the statement testimonial. If the defendant "deserves" to go to jail, then a court can focus on whatever perspective is necessary to declare damning hearsay nontestimonial. And when all else fails, a court can mix-and-match perspectives to reach its desired outcome. Unfortunately, under this malleable approach "the guarantee of confrontation is no guarantee at all." Giles v. California, 554 U. S. 353, 375 (2008) (plurality)."

The Court recognised that the existence of an emergency was relevant, but in relation to the interrogators' primary purpose, calling this a "context-dependent inquiry". At slip op., p 22 it held:

"The inquiry still focuses on the understanding and purpose of a reasonable victim in the actual victim's circumstances, which prominently include the victim's physical state." [emphasis added]

The alarming thing here is that the actual victim here did not seem to appreciate any urgency. After being shot he fled some six blocks and at a gas station 25 minutes later a 911 call was made and the police quickly arrived. Then five officers in turn questioned him about the shooting.

"[the victim's] pressing medical needs do not suggest that he was responding to an emergency, but to the contrary reinforce the testimonial character of his statements. He understood the police were focused on investigating a past crime, not his medical needs. None of the officers asked [him] how he was doing, attempted more than superficially to assess the severity of his wounds, or attempted to administer first aid." [Scalia J's opinion, p 7]

Justice Ginsburg agreed with Scalia J that the declarant's intent is what counts. She noted that the issue of whether this case was one of a dying declaration was not before the Supreme Court because it had been abandoned by the prosecution in the Michigan Supreme Court. So although the Court had recognised that the dying declaration exception to the hearsay rule was an exception to the confrontation requirement in the common law inherited from England (Crawford v Washington, above), it was not necessary here to decide whether it survived the Court's recent confrontation decisions.

Bryant is a case where, as the prosecution recognised, the easy answer - that the declarant was making a dying declaration - was not available on the true facts, so the plurality had to uphold the admission of the evidence on these inconvenient facts by creating law that escapes the Confrontation Clause by pretending the statements were in response to an emergency and so were not testimonial. With the "facts" being what judges think they should have been, judges can do as they wish.

Aiding or standing by?

Aiding an offence requires a positive act of assistance in its commission. This is not new law, but it is usefully illustrated in Robinson v R (Bermuda) [2011] UKPC 3 (9 February 2011).

One of the ways in which the appellant had been alleged to have been guilty of the murders of twins was that he

"intentionally conveyed to … Burgess [the principal] by his presence and behaviour that he was assenting to and concurring in the commission of the offence"

Sir Anthony Hughes, for the Board, recognised the danger in this form of allegation [14]:

"The Board is disposed to agree that to frame an allegation of aiding in [this way] does carry danger and is best avoided unless carefully qualified and explained. It courts the risk that insufficient attention is paid to the undoubted requirement that aiding imports a positive act of assistance. Of course that positive act of assistance may sometimes be constituted by D2 being present, and communicating to D1 not merely that he concurs in what D1 is doing, but that he is ready and willing to help in any way required. ... If D2's presence can properly be held to amount to communicating to D1 (whether expressly or by implication) that he is there to help in any way he can if the opportunity or need arises, that is perfectly capable of amounting to aiding ... . It is, however, important to make clear to juries that mere approval of (ie "assent" to, or "concurrence" in) the offence by a bystander who gives no assistance, does not without more amount to aiding. It is potentially misleading to formulate aiding [in the way mentioned above] without that qualification and without explaining that the communication of willingness to give active assistance is a minimum requirement."

The prosecution may prefer to allege aiding rather than the more complicated form of extended secondary liability. An opportunity to do this can occur where although a common plan may have been departed from, the aider continues to assist [18]:

"... an aider (D2) is guilty in respect of acts which he assists the principal offender (D1) to commit, knowing what D1 is about, so that if D1 steps right outside what was contemplated by D2, the latter will not be guilty. That, however, assumes that D2's assistance ceases upon the fundamental departure by D1. It is clearly otherwise if D2 continues to render assistance after a change of direction by D1."

So, just a reminder of some fundamentals here.

Thinking for the jury

One of the requirements for a fair trial is the correct application of the law. When a jury has doubts about what the relevant law is, it may ask the judge for guidance. In R v Miljevic, 2011 SCC 8 (16 February 2011) the Supreme Court of Canada split 4-3 on whether the judge had correctly responded to questions from the jury.

In this case there was no need for the court to decide new law. There was no doubt about what the applicable law was. The jury had to choose between murder and manslaughter, depending on what it found the accused's state of mind to be. The law on this is settled, but the jury wanted clarification.

The jury had asked: "In 'layman terms' what is the difference between murder 2 and manslaughter? Examples? … A specific definition of manslaughter?"

The judge answered not by giving examples or by giving a definition of manslaughter, but instead by repeating the definition of murder. He did not address manslaughter because he did not want to confuse the jury, and because he did not want the jury to disobey his instruction to convict on one charge by acquitting on both.

The minority (Fish J, with McLaughlin CJ and Deschamps J concurring) held [8]:

"...no 12 jurors should be required by a trial judge to convict the accused placed in their charge of one or the other of two offences without understanding how the elements of both might relate to the evidence before them (see R. v. MacKay, 2005 SCC 75 (CanLII), 2005 SCC 75, [2005] 3 S.C.R. 607, at para. 1, citing Azoulay v. The Queen, 1952 CanLII 4 (S.C.C.), [1952] 2 S.C.R. 495, at p. 503). Yet that is what happened here."

There may be occasions where only one of the two available alternatives needs to be decided, but was this a case where the mens rea for murder could be determined without comparing it to the mens rea for manslaughter? The jury had to assess foreseeability of serious bodily harm (and it seems the judge misdirected on this: [22]) in the context of the accused's impairment through intoxication. Given that intoxication does not excuse the failure to foresee harm that a reasonable person would have foreseen (for manslaughter), could a direction on manslaughter possibly have made any difference here?

The majority (Cromwell J, with Abella, Charron and Rothstein JJ concurring) agreed with the majority in the Alberta Court of Appeal, holding that on the agreed facts the accused was guilty of manslaughter (he had thrown what he claimed was a heavy baseball bat into a group of people), so the only issue at trial was whether the accused was guilty of murder. Also, the judge had invited the jury to ask questions if they had difficulty.

The Court of Appeal had not addressed the question of whether the only issue in the case could be decided without comparison with the mens rea for manslaughter. The Supreme Court majority concluded [3]:

"...There is no reasonable possibility that the jury could have misunderstood what had to be proved in order for them to return a guilty verdict on the charge of second degree murder."

This treatment of the single-issue without comparison with the criteria for the alternative is wrong. A direction on manslaughter, even though the accused was guilty of this at a minimum, could have helped the jury understand the mens rea for murder. Intoxication may have had a bearing on what the accused knew of the likely consequences of his act, and the fact that a reasonable person, who is by definition sober, would have recognised the risk is not quite the same thing. Comparison with manslaughter would have clarified the subjective nature of the requirements for mens rea in murder.

Securing trial fairness

The primacy of a defendant's absolute right to a fair trial is preserved in aspects of Canadian evidence law concerning the withholding of disclosure in the interests of national security: R v Ahmad, 2011 SCC 6 (10 February 2011). This is because the court can, in the event that absence of disclosure compromises the right to a fair trial, order a stay of proceedings.

The legislative scheme under consideration in Ahmad is ss 38 to 38.16 and 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5. Section 38.14 provides:

Protection of right to a fair trial

38.14 (1) The person presiding at a criminal proceeding may make any order that he or she considers appropriate in the circumstances to protect the right of the accused to a fair trial, as long as that order complies with the terms of any order made under any of subsections 38.06(1) to (3) [permiting disclosure] in relation to that proceeding, any judgment made on appeal from, or review of, the order, or any certificate issued under section 38.13 [prohibiting disclosure].

Potential orders

(2) The orders that may be made under subsection (1) include, but are not limited to, the following orders:

(a) an order dismissing specified counts of the indictment or information, or permitting the indictment or information to proceed only in respect of a lesser or included offence;

(b) an order effecting a stay of the proceedings; and

(c) an order finding against any party on any issue relating to information the disclosure of which is prohibited.

The Court, in a unanimous judgment, held [2] in relation to a conflict between the interests of national security which require concealment of information and the interests of the defendant,

"Where the conflict is irreconcilable, an unfair trial cannot be tolerated.
Under the rule of law, the right of an accused person to make full answer and defence may not be compromised."

This requirement of trial fairness was the criterion for constitutional validity of the legislation [5]. The important consideration was the flexibility of the legislated scheme [7]:

" ... the net effect is that state secrecy will be protected where the Attorney General of Canada considers it vital to do so, but the result is that the accused will, if denied the means to make a full answer and defence, and if lesser measures will not suffice in the opinion of the presiding judge to ensure a fair trial, walk free. While we stress this critical protection of the accused's fair trial rights, we also note that, notwithstanding serious criticisms of the operation of these provisions, they permit considerable flexibility as to how to reconcile the accused's rights and the state's need to prevent disclosure."

Important here is the context in which a stay of proceedings may have to be considered. Usually the stay is described as a remedy of last resort, but here a stay of proceedings may be required even though not all the information has been disclosed to the judge who therefore could not say that it was necessarily the only appropriate remedy [34-35].

There is no obligation on the defence to assist the court (for example by undertaking not to disclose to the defendant information given by the prosecution to counsel, see [30]) to avoid the need to order a stay [78]:

"... the defence is under no obligation to cooperate with the prosecution and if the end result of non-disclosure by the Crown is that a fair trial cannot be had, then Parliament has determined that in the circumstances a stay of proceedings is the lesser evil compared with the disclosure of sensitive or potentially injurious information."

The trial judge must be able to "conclude affirmatively" [35] that the right to a fair trial has not been compromised.

For my analysis of trial fairness in various leading appellate courts, click here.

Second thoughts

A witness's privilege against self-incrimination

Cases of alleged domestic violence are among those where a complainant may wish to deny the truth of her earlier complaint or of her evidence in pre-trial proceedings. She would then be admitting wasting police time by making a false complaint, or perjury. Will she be able to claim a privilege against self-incrimination so that she is not forced to give evidence incriminating the defendant at his trial?

This depends, as the New Zealand Supreme Court held in DK Singh v R [2010] NZSC 161 (17 December 2010), on how "likely" (s 60(1)(b) of the Evidence Act 2006[NZ]) it is that provision of the information sought would be used to incriminate the witness, that is, on whether there is a "real and appreciable" – as opposed to a "merely imaginary and fanciful" risk of incrimination (Singh at [31], citing Cockburn CJ in R v Boyes (1861) 1 B & S 311 at 330, 121 ER 730 (KB) at 738). In the circumstances of Singh the Court assessed this likelihood as sufficiently low to justify denial of the privilege.

The Court added that the privilege belongs to the witness, and it is not open to the appellant to make the claim on her behalf if she had waived it, applying R v Kingslake (1870) 11 Cox CC 499 (QB) and noting the consistency with s 60(4)(b) of the Evidence Act 2006.

Hostility and prior consistent statements

In the trial in this case the Crown had obtained a ruling that the witness was hostile, so that by cross-examination it was revealed that she had previously stated that the alleged offences had occurred. The defence then sought to have some of her prior consistent (that is, consistent with her denials of the offending) statements admitted under s 35 of the Evidence Act. But on the facts here the Court assessed those statements as not having sufficient probative value to make them "necessary to respond" to the Crown's challenge to the witness's accuracy or veracity, and held that their selective nature would make admitting them unfair to the prosecution and would require a time-wasting diversion (s 8 Evidence Act).

Trial unfairness

The appellant's fundamental argument was that the trial had been unfair. This is dealt with at the end of the judgment [59-61]. This argument was put on the grounds (as I would paraphrase on the basis of my analysis of trial fairness) that the jury would not have assessed the evidence impartially because the witness's credibility had been improperly undermined. It seems from the judgment that the unfairness argument was based on the jury not having been given a direction that they might consider that her clumsy attempts to deny that the offending had occurred were due to her fear of being prosecuted for perjury. That is, there was a real risk that the jury's assessment of the value of her evidence was not an impartial assessment because all relevant considerations may not have been taken into account.

The Court concluded that the jury had been given sufficient information to be able properly to assess the witness's credibility. A fear of prosecution would not have affected the way she gave evidence.

Res judicata or double jeopardy?

The different foundations of the special pleas (autrefois convict/acquit) and issue estoppel are called to mind by Coke-Wallis, R (on the application of) v Institute of Chartered Accountants in England and Wales [2011] UKSC 2 (19 January 2011). Lord Collins noted at [59] that the principles of the special pleas do not apply in civil cases, and that Lord Bridge had been wrong in Harry Lee Wee v Law Society of Singapore [1985] 1 WLR 362, 368 (PC) to suggest that they do.

Re-litigation of issues may be permitted, subject to the court's duty to prevent an abuse of its process. Re-litigation in civil cases is controlled by the doctrine of res judicata, which has generated the rules concerning cause of action estoppel and issue estoppel. In criminal cases the prevention of double jeopardy is the conceptual source of the special pleas.

In civil cases, cause of action estoppel prevents different evidence being used to prove a suit that had previously failed, as occurred in Coke-Wallis. If the earlier proceedings had been criminal, different considerations would apply to the admissibility of determinations of issues in the subsequent civil case: see Z v Dental Complaints Assessment Committee [2008] NZSC 55 (25 July 2008), noted in the entry for 25 July 2008. Acquittal in criminal proceedings does not prevent the same issues being decided in a subsequent civil case. This reflects the generality of the criminal verdict. The higher standard of criminal proof makes appropriate the use of evidence of a previous conviction in a subsequent civil case, which is likely to be permitted if relevant although there may be exceptions (as is recognised for example in s 47 of the Evidence Act 2006[NZ]). And, still focusing on where the second case is civil, evidence of a judgment or of a finding of fact in an earlier civil case is likely to be admissible (and not disputable) within the principles of res judicata but not otherwise.

A particularly clear outline of the position where the second case is criminal is given in R v Carroll [2002] HCA 55; 213 CLR 635; 194 ALR 1; 77 ALJR 157 (5 December 2002). In criminal law a more flexible approach may be permitted to prevent abuse of process. On double jeopardy, Gleeson CJ and Hayne J observed at 23-24:

"[23] It is ... important to recall that the four considerations which we have mentioned (the imbalance of power between prosecution and accused, seriousness for an accused of conviction, prosecution as an instrument of tyranny and the importance of finality) are not the only considerations which find reflection in the criminal law system. At the very root of the criminal law system lies the recognition by society that some conduct is to be classified as criminal and that those who are held responsible for such conduct are to be prosecuted and, in appropriate cases, punished for it. It follows that those who are guilty of a crime for which they are to be held responsible should, in the absence of reason to the contrary, be prosecuted to conviction and suffer just punishment.

"[24] Reference to the general propositions we have mentioned is important not because the answer to the issues now being considered can be found by deductive reasoning which takes any or all of them as a premise but because they are values to which the criminal law can be seen to give effect. They are values that may pull in different directions. There are, therefore, cases in which a balance must be struck between them. To take only one obvious example, it is accepted that in order to acquit the innocent, some who are guilty will go unpunished. But conversely, to punish the guilty, some who are innocent will suffer the very real detriments of being charged and tried for an offence they did not commit. It follows that to argue from any one of the considerations we have identified to some rule of universal application is to invite error."

Where the first case was criminal and there was an acquittal, it may be impossible to say that a given fact was determined to any standard. This makes the application of estoppels inappropriate (Carroll at [35]). Instead, it is recognised that there is a discretion which underlies the special pleas: Connelly v Director of Public Prosecutions [1964] AC 1254 per Lord Pearce at 1364:

"A man ought not to be tried for a second offence which is manifestly inconsistent on the facts with either a previous conviction or a previous acquittal. And it is clear that the formal pleas which a defendant can claim as of right will not cover all such cases. Instead of attempting to enlarge the pleas beyond their proper scope, it is better that the courts should apply to such cases an avowed judicial discretion based on the broader principles which underlie the pleas." (emphasis in original)

This discretion is the inherent power of the court to prevent an abuse of its process (Carroll at [39]). So, although a plea of autrefois acquit may not technically be available on a particular issue, considerations of double jeopardy may indicate that the laying of the second charge was an abuse of process. Outside of the technical application of autrefois acquit, it may be possible to reveal double jeopardy by comparing the issues in the first trial with those raised in the second. Carroll is an illustration: at the first trial the charge was murder, the only issue was identity, and the accused gave evidence. He was acquitted but subsequently charged with perjury on the basis of his denial of being the killer. The elements of perjury differ from the elements of murder, so autrefois acquit did not assist the defendant, but the High Court unanimously held that the perjury prosecution was an abuse of process and it was stayed.

While issue estoppel has no place in criminal law in Australia (Rogers v R [1994] HCA 42; (1994) 181 CLR 251), the UK (R v Humphrys [1977] AC1) and New Zealand (R v Davis [1982] 1 NZLR 584 (CA)), this is not so in Canada: R v Mahalingan [2008] SCC 63 (14 November 2008), discussed here on 15 November 2008. In that case the issue was whether evidence that the defendant had attempted to interfere with a witness, a charge on which he had been acquitted, was admissible at his trial for aggravated assault. It should be obvious that, unlike in Carroll, proof of the second charge did not entail contradicting the acquittal, but the majority of the Supreme Court of Canada held that issue estoppel applied because it included findings of reasonable doubt on an issue. It seems clear that the Canadian approach, committed as it is to the use of the res judicata-based estoppels, is having its limitations reduced by a fiction that a finding of a reasonable doubt is a determination of an issue.

Trial fairness and conviction appeals

Stimulating holiday reading! My new paper on what a "fair trial" means and on reform of the criteria for allowing appeals against conviction! Sit up straight and click on the link under draft papers on this page. Also available at NZLawyer (4 February 2011), but the former - my pdf file - is easier to read because it has footnotes, whereas the latter incorporates the footnotes into the main text.

Judging or calculating?

Some general thoughts on sentencing guideline judgments are prompted by the High Court of Australia's decision this week in Hili v R; Jones v R [2010] HCA 45 (8 December 2010):

• The point of first reference for sentencing must be the relevant legislation. A court cannot issue guidelines that are inconsistent with statutory provisions.
  

• If a guideline indicates a "norm" for the starting point for sentence determination, can that go beyond being merely descriptive of what earlier cases have decided? What authority does the court have to set "norms" for the future?
  

• Without statutory authority to lay down norms for the future, or to describe even in the most general terms the circumstances in which those norms can be departed from, what binding force can these future "norms" have?
  

• Plainly, the purpose of sentencing guidelines is to promote consistency between cases. But cases are never exactly the same, and a sentencing judge should exercise judgment about what is appropriate for an individual offender. The task of counsel for each side is to bring to the court's attention cases that it asks to be used as precedents, and this is an exercise in describing what has happened in the past. That is the way the law usually works.
  

• Consistency between cases requires consideration of the reasons why previous sentences were imposed. This is not revealed by an exercise in tabulation of seriousness of offence and level of sentence, because that misses the vital ingredient of individual circumstance and other matters required by statute to be taken into account.
  

• So, first look at the legislation, then look at what has been done in other cases – especially to identify unifying principles – remembering that what has been done in the past does not necessarily set the limits on what can now be appropriate.
  

• Whether a sentence under appeal was manifestly inadequate or excessive does not depend on an intuitive reaction based on earlier decisions, but rather is a question that has to be answered in the light of all the matters relevant to fixing sentence, including the circumstances of the offending and the circumstances of the offender, and the sentences imposed in the most comparable cases.
  

• It is possible (as Heydon J said in his concurring but partly differently reasoned judgment, although the point must be uncontroversial) that there may be more than one "correct" sentence in a given case. A sentencing judge must be guided by his or her perception of what is appropriate.
  

Those points encourage us to doubt the status of so-called guideline judgments. Examples in New Zealand: establishing sentencing bands for drug offending based on the quantity of drug involved: R v Fatu [2006] 2 NZLR 72, R v Terewi [1999] 3 NZLR 62; categories for burglary based on the kind of offender: Senior v Police (2000) 18 CRNZ 340; bands of sentences for violent offending based on listed aggravating features: R v Taueki [2005] 3 NZLR 372; and – illustrating a level of analysis that has become, I respectfully suggest, grotesque – bands of sexual offending based on the physical details and grouped into "rape bands" and unlawful sexual connection or "USC bands" (!): R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750. These cases are prescriptive and may well be found to contravene the principles in the Sentencing Act 2002. Their underlying assumption is that judges are unable to exercise discretion judicially. These cases are, perhaps some might argue, an overly eager attempt by the appellate court to placate pressure groups whose only thoughts about sentencing are retributive. They are, of course, honest endeavours to promote uniformity in sentencing, but, especially when read in the light of the Supreme Court's rejection of a formulaic assessment of the amount of discount appropriate for pleas of guilty, they may have gone wrong in neglecting the legislated approach; see Hessell v R [2010] NZSC 135 (discussed here 16 November 2010).

Respectfully yours ...

For my submissions to the Justice and Electoral Committee on the Criminal Procedure (Reform and Modernisation) Bill 243-1 (2010), updated as at 17 February 2011, click here.

Relevance and unreasonable rage

There may be occasions where a judge may rule that evidence initially thought to be relevant to an issue must be ignored. The Supreme Court of Canada has touched on this in the context of provocation: R v Tran [2010] SCC 58 (26 November 2010):

"[41] ... the evidence must be reasonably capable of supporting the inferences necessary to make out the defence before there is an air of reality to the defence (Fontaine 2004 SCC 27 (CanLII), 2004 SCC 27, [2004] 1 S.C.R. 702 at para. 56; R. v. Reddick, 1991 CanLII 106 (S.C.C.), [1991] 1 S.C.R. 1086, at p. 1088, citing Pappajohn v. The Queen, 1980 CanLII 13 (S.C.C.), [1980] 2 S.C.R. 120, at p. 133). ... ."

Tran is an example of the evidence being insufficient to establish a necessary element (here, of a defence), but I discuss it because it obliquely invites consideration of the admissibility/insufficiency boundary.

The "air of reality" requirement is really a relevance requirement.

To be relevant, evidence must be reasonably capable of supporting the fact it seeks to prove: Bain v R [2009] NZSC 16 per Elias CJ and Blanchard J at [43] (adopting R v Thomas [1970] VR 674 at p 679), per Wilson J at [91], agreeing, and adding that the threshold is "very low").

Judges may - unless there has been a pre-trial hearing - have to rule on admissibility when a party seeks to adduce the evidence, and that may be when there is only a narrow context. But on the "air of reality" test, the judge can take a wider perspective and place the challenged evidence in the context of all the other evidence in the case.

The danger is that, in a jury trial, the judge will usurp the jury's function by removing an issue (often, but not necessarily, a defence) from their consideration. The law of provocation, surveyed in Tran, brings out this difficulty, which reflects the sometimes controversial difference between questions of law and questions of fact.

The trial was by judge alone, and the judge held that the prosecution had failed to exclude the partial defence of provocation. The Court of Appeal of Alberta held that the offender should have been convicted of murder, not manslaughter. The Supreme Court dismissed the offender's appeal. Broadly, the offender could not have been acting under provocation because his estranged wife's adultery was known to him before he entered her home and it could not have been an "insult" (s 232 Criminal Code) that caused him to lose his self-control.

So the trial judge must have thought it was reasonably possible that the offender had lost his self-control (a question of fact), while the appellate courts did not (because of a requirement of law: the facts did not establish an "insult" although if they had, that would have been a question of fact under s 232). There is an objective element to the loss of self control:

"[29] ... while one spouse undoubtedly has a legal right to leave his or her partner, in some circumstances the means by which that spouse communicates this decision may amount in fact to an "insult", within the ordinary meaning of the word. However, to be recognized at law, the insult must be of sufficient gravity to cause a loss of self-control, as objectively determined. The fact that the victim has the "legal right", in the broad sense of the term, to leave the relationship is an important consideration in the assessment of this objective standard."

Tran was not so much an "air of reality" case, as a case of loss of self control being outside the scope of the partial defence of provocation because it was unreasonable. But to avoid the hideous spectacle of an appellate court acting like a jury, it is more diplomatic to pretend that the evidence was irrelevant.

Power to disclose

Does voluntary disclosure to the police by an electricity supply company of the defendant's power usage breach a right to privacy?

The Supreme Court of Canada has held, 7-2, that no such breach occurred in R v Gomboc [2010] SCC 55. The defendant was charged with cultivation of cannabis and his electricity usage was one aspect of the case against him. Four of the majority judges (Deschamps, Charron, Rothstein and Cromwell JJ) held that information about electricity use in a private dwelling was not about "intimate or core personal activities" of the occupants and did not carry a reasonable expectation of privacy. Core biographical data was not revealed. A relevant circumstance was that customers could expressly request that the supply company keep confidential the details about electricity usage, but here the defendant had not done that. This latter point was stressed by the concurring majority judges, Binnie, LeBel and Abella JJ.

Dissenting, McLaughlin CJ and Fish J held that there was a reasonable expectation of privacy in the circumstances of this case. This was because of the degree of intrusiveness was high: the accurate measuring of electricity usage supported inferences of criminal activity that was private information of use to the police. This form of search should only be permitted if the police could alternatively have obtained a search warrant. Customers could not be expected to be aware of the complex regulations which permitted the supply company to pass on information to the police, and the regulatory scheme was not intended to authorise the company to act as an agent for the police by spying on its customers.

Offenders often bypass their electricity meters, and are consequently charged with theft of electricity in addition to cultivation of cannabis. Police use of power consumption information in support of applications for search warrants may already be regarded as a good investigative technique; in R v Thompson [2001] 1 NZLR 129, (2000) 18 CRNZ 401 (CA) it does not appear to have occurred to anyone that this might have been objectionable.

Relevance, probative value, and Bayesian reasoning

Peter Tillers has drawn everyone's attention to an interesting discussion of relevance, "Bayesian Wars Redivivus – An Exchange" in International Commentary on Evidence, Vol 8, Issue 1, Article 1 (2010).

Relevance

Definitions of relevance can appear to be inappropriately restrictive. In New Zealand we have an example in s 7 of the Evidence Act 2006 (compare rule 403 of the Federal Rules of Evidence 2010). Critically, subsection (3) defines relevant evidence:

"Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding."

Inevitably, however, there are many facts in a case that are not in dispute but that are relied on to give context to the relevant facts. These contextual matters are often called narrative. Strictly speaking, they do not in themselves tend to prove anything, but they help to explain why other evidence does have the necessary tendency. A generous reading of s 7(3) is needed: it could encompass narrative evidence if "evidence" is understood as including the evidence that explains the "tendency to prove or disprove".

Neutralising the opponent's evidence

Sometimes, each party may rely on the same narrative evidence but will invite a different inference from it. A defence stratagem is to neutralise prosecution evidence by showing that it is consistent with innocence, and this applies to narrative evidence too.

This leads to a paradox: if a narrative fact is not in dispute, but is equally consistent with guilt as with innocence, it is needed by both parties even though its tendency to prove a matter in issue is neutral; it is relevant in ways that cancel each other out. Does neutralisation destroy relevance?

This paradox disappears if s 7(3) means that equal and opposite tendencies are still tendencies, because each must be considered separately.

A problem for Bayesian logic?

The tendency requirement for relevance says nothing about the strength of that tendency. The strength of the tendency of relevant evidence to prove a matter in issue is called the probative value of that evidence. In Bayesian logic probative value is expressed as a likelihood ratio. Essentially this is a way of asking (for prosecution evidence) how much more consistent is the evidence with guilt than it is with innocence.

In some ways it is unfortunate that the adjective Bayesian has attached to this thought process, because it is an ordinary and natural way of addressing the question of the strength of the probative value of evidence. There is not even anything necessarily mathematical about it, as strengths and likelihoods can be assessed without numbers.

Much of the argument in the paper cited above is concerned with how a likelihood ratio is to deal with common reliance on the evidence without rendering it irrelevant. I think there is some crossing of the wires here: probative value is treated in this discussion as if it was relevance. This error is introduced by Ronald Allen at p 10 of the exchange. Roger Park tries to correct it at p 11, but David Kaye thinks it makes a different point (p 11). Ronald Allen emphasises his assertion of a problem that a likelihood ratio of one makes for relevance at p 12, David Kaye discusses the probative values in reply (p 12), and Ronald Allen's rejoinder (p 13) corrects the tendency to think that changing probative value changes relevance, while seeming to suggest that it was David Kaye who said that if both sides rely on the evidence it is not relevant at all, when really it was Ronald Allen himself who suggested that this is implicit in Bayesian reasoning. Ronald Allen thinks it is difficult to determine relevancy until all the evidence has been heard (p 13) – but I think that is because he confuses relevancy with probative value. Samuel Gross seems to agree that relevance cannot be assessed without the other evidence (p 15). Bruce Hay usefully distinguishes between the function of the judge and that of the jury (p 19). Peter Tillers chips in with a defence of the proper use of Bayes' Theorem (pp 20-21). David Kaye mentions what I have here called narrative evidence, at p 24. Ronald Allen comes down hard against Bayesianism (p 25) although he acknowledges it has some use (p 26). David Kaye brings narrative evidence into a Bayesian approach (p 29), and then Peter Tillers brings the discussion to cows (p 30) and common sense (the "stories" approach to probative value).

The reality is that juries are commonly told that they may decide to give particular evidence little or no weight (probative value) notwithstanding that it is (necessarily) relevant evidence. Evidence can be relevant although it has only a slight tendency to prove the matter contended for, and it will be admissible unless excluded by some other rule, and its probative value – assessed in the context of all the relevant evidence in the case – may be similarly slight yet its impact on the result of the case will depend on the priors (that is, how close the other evidence brings proof of the prosecution case to the required standard).

Bayesian reasoning can be useful on the issue of admissibility where it can be shown that the likelihood ratio is close to one (the evidence is nearly as consistent with innocence as it is with guilt) if other circumstances in the case make the evidence in question liable to exclusion because of its illegitimately prejudicial effect (see s 8 of the Evidence Act 2006; rule 403 of the Federal Rules). Evidence that is merely narrative should not have the necessary prejudicial effect to require exclusion, but it is commonplace to encounter exclusion of other relevant evidence because of its prejudicial effect.

Stories or statistics?

Usually people decide what to believe on the basis of what seems, without the need for further inquiry, to be consistent with common sense. They are using experience as the basis for judgment. They would have to concede that other people's experience can be useful in helping them make that judgment, and that that experience may come from statistical studies. The usefulness of scientific studies, the results of which are presented statistically, cannot be denied. They can distinguish factual from fictional stories. The significance of probabilities for logical reasoning must be recognised, and the inescapable influence of conditional probabilities on the correct determination of judicial proceedings must be utilised by fact-finders.

Accounting for guilty pleas – justice, not economics

Whereas South Australia v Totani (last note) illustrated the error of a legislature in depriving a court of its judicial function, Hessell v R [2010] NZSC 135 illustrates a departure by a court (here, the lower appellate court) from its judicial function.

This is only hinted at obliquely. The Court was highlighting the inappropriateness of a formulaic approach to the level of sentence discount to be awarded for entry of a plea of guilty. The Court of Appeal in this case had issued a guideline judgment on discounts for guilty pleas, setting out a sliding scale according to the stage of the proceedings at which the plea was entered. The Supreme Court overruled that:

"[67] The law reform agencies in the United Kingdom and New Zealand saw valid reasons to move to a more prescriptive and structured approach to giving credit for guilty pleas in sentencing. The Court of Appeal was persuaded by their reasoning. But in giving effect to their proposals, the Court of Appeal has underestimated the complexity of the issue including the potential of the changes to impact on the protected rights of persons charged with criminal offending. It is also inappropriate for a court to make changes in sentencing policy that would restrict the capacity of judges to determine sentences that are considered to fit all the circumstances of the case. Where the development of sentencing policy is motivated by a utilitarian calculus it may not be appropriate for judicial decision. Judges should show restraint in moving beyond the area mandated by existing legislation when exercising their sentencing powers. The ultimate difficulty we have with the Court of Appeal's approach is that it is not mandated by the Sentencing Act." [emphasis added]

The Supreme Court's approach recognises the need to avoid coerced guilty pleas, and to protect the defendant's right to dispute the facts and to challenge the admissibility of evidence.

Sentencing involves the consideration of a range of circumstances, one of which may be a guilty plea, and the significance of such a plea has to be assessed in all the relevant circumstances of the case. However, the Court added that discounts for guilty pleas should not exceed 25%, as remorse is a separate consideration for which more credit may be due.

The Australian approach (R v Wong [2001] HCA 64, (2001) 207 CLR 584 at [76] per Gaudron, Gummow and Hayne JJ; R v Markarian [2005] HCA 25, (2005) 228 CLR 357 at [37] per Gleeson CJ, Gummow, Hayne and Callinan JJ) was preferred to that in the United Kingdom, although New Zealand uses more of an "instinctive synthesis" of gravity and culpability than does Australia: Hessell at 55.

Fundamentally, the Court of Appeal had addressed the question from a point of view that was distorted by non-judicial concern with administrative efficiency.

When laws go crazy

People interested in whether a legislature may require a court to act unjustly may get some pointers from French CJ's judgment in South Australia v Totani [2010] HCA 39 (11 November 2010).

This case was decided in the context of Australia's constitutional arrangements, but some fundamentals of interest to everyone are evident.

French CJ began by referring to the assumption of judicial independence which underlies the constitution [1] and which has its origin in English law [59], where fairness and impartiality were recognised as characteristics of proceedings in courts of justice [60]. While the characteristics of a court cannot be defined in a single all-embracing statement, an essential is the conduct of an adversarial trial by an independent and impartial tribunal [62]:

"At the heart of judicial independence, although not exhaustive of the concept, is decisional independence from influences external to proceedings in the court, including, but not limited to, the influence of the executive government and its authorities [footnote: As to the multiple location of judicial decisional independence in separation-of-powers protections providing for "judicial independence" and within the rubric of "due process" and "the rule of law", see Gerangelos, The Separation of Powers and Legislative Interference in Judicial Process, (2009) at 8]. Decisional independence is a necessary condition of impartiality. Procedural fairness effected by impartiality and the natural justice hearing rule lies at the heart of the judicial process [footnote: For a recent discussion of the natural justice hearing rule in this context, see International Finance Trust Co Ltd [2009] HCA 49; (2009) 240 CLR 319 at 379-384 [139]- [150] per Heydon J.]. The open-court principle, which provides, among other things, a visible assurance of independence and impartiality, is also an "essential aspect" of the characteristics of all courts, including the courts of the States [footnote: Russell v Russell [1976] HCA 23; (1976) 134 CLR 495 at 520 per Gibbs J; see also at 505 per Barwick CJ, 532 per Stephen J; [1976] HCA 23]."

Important for this case, but also of potential general application, is the idea that a legal system cannot require a court to act in a way which impairs its "institutional integrity". In the context of Totani, this idea appears as [69(3)]:

"The institutional integrity of a court requires both the reality and appearance of independence and impartiality [Footnote: Forge [2006] HCA 44; (2006) 228 CLR 45 at 77 [66] per Gummow, Hayne and Crennan JJ, citing Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 345 [7]- [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ]."

And the fundamental nature of that requirement - the reality and the appearance of independence and impartiality - is historical, pre-dating Australia's federation [72]:

"...Forms of external control of courts "appropriate to the exercise of authority by public officials and administrators" are inconsistent with that requirement [Footnote: Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 at 553 [10] per Gummow, Hayne, Heydon and Kiefel JJ ]. The requirement is not a judicially generated imposition. It derives from historically based assumptions about courts which were extant at the time of Federation."

This form of argument is potentially a powerful weapon against those who would support the idea that a sovereign legislature may enact any law it wishes. I have a written a brief note on this sort of thing in "Criminal Equity" [2000] New Zealand Law Journal 427. By "criminal equity" I mean the pursuit of fairness in the criminal context by looking beyond the black-letter law. Since then, we have enacted a potential cause of unfairness in s 21 of the Evidence Act 2006[NZ] which is absolute in its terms. It is wide enough to prevent admission of the exculpatory parts of a defendant's statement to the police unless he gives evidence at his trial. In cases where this would operate unfairly, the court has to, in effect, disregard s 21, but, since the court does not have the power to rule the legislation unconstitutional, this is done under the guise of recognising an implicit power to require the prosecution to lead the exculpatory statement to prevent unfairness. In a case that seems to be currently subject to a suppression order, [2009] NZCA 607, (2009) 24 CRNZ 527, the Court of Appeal has said, at [19]:

" ... such a power must be implicit in s 25 of the New Zealand Bill of Rights Act 1990. In the event of an unfair decision by a prosecutor not to lead evidence as to what an appellant said at a police interview, it would thus be open to the Court to require that evidence to be led. As to this, see Illingworth and Mathias “The Admissibility of Hearsay Statements and Opinion Evidence” in Young and Chambers Evidence Act 2006 (NZLS Intensive June 2007) at 50 – 51."

Essentially this is using the inherent power to prevent an abuse of process to qualify the statutory language in the interests of trial fairness. The jurisdiction to prevent an abuse of process is inherent in the function of the court.

Fair multiplicity

A routine point of criminal law was the reason for the unopposed allowing of the appeal in Mason v R [2010] NZSC 129 (3 November 2010): s 329(6) of the Crimes Act 1961 provides that "Every count shall in general apply only to a single transaction." Here, the transaction covered two assaults, and these should have been charged separately to avoid unfairness: the accused may have had a defence to one assault, and on sentencing it would be necessary to know what had been proved beyond reasonable doubt especially because the assaults varied in seriousness.

The conviction was quashed and the Crown did not seek a retrial.

This rather elementary point had been overlooked in the Court of Appeal, where the appellant had represented himself and the Court had misunderstood his argument as applying only to the determination of facts for sentencing.

Mr Mason will no doubt be pleased he did not have to go to the trouble and expense of trying to appeal to the Privy Council. This was a minor case, alleging punching in the face and ear-pulling, committed against one of the accused's sons. It was only interesting because of the huge attention that the use of force in domestic discipline has recently received, and this was regarded as a test case for new legislation, s 59 Crimes Act 1961.

There are occasions where a count can allege offending over an extended period, and there may be many alleged incidents which a complainant cannot be specific about. In those cases (often, but not necessarily, alleging sexual misconduct) the jury must, before it can find guilt, agree on at least one incidence of the alleged offence.

A leading authority is R v Accused (CA160/92) [1993] 1 NZLR 385; (1992) 10 CRNZ 152 (CA), where the judgment of the Court of Appeal was delivered by Cooke P (later, Lord Cooke of Thorndon). On the requirement of trial fairness, his Honour said

"The basic ingredients of a fair trial remain. There are limits to custodial interrogation and in some circumstances Bill of Rights protections; the accused is entitled to know the substance of that with which he is charged; he has statutory and common law rights regarding the disclosure of certain information; he has detailed notice before the trial of the evidence to be called by the prosecution; he has the right at the trial of cross-examining the Crown witnesses, subject to some reasonable restraints; he has the right to give evidence himself, so that the jury may compare his evidence with that of the complainant or his other accusers; and he has the benefit of the doubt, invariably underlined by trial Judges in emphatic directions that the prosecution must establish its case beyond reasonable doubt. In the event of a conviction the accused has the right of appeal on grounds including the basic one, miscarriage of justice. There is the safety net for exceptional cases of the Royal prerogative and s 406 Crimes Act: see Burt v Governor-General unreported, 16 July 1992, CA175/88.

"On the general question of the fairness of criminal trials in New Zealand it is not to be overlooked that other developments, some of them with no particular bearing on sexual charges, have also moved the balance towards the prosecution. These include statutory provisions for electronic surveillance; DNA testing; a more liberal judicial attitude to "similar fact" evidence and hearsay evidence. But they have been accompanied, at least since Police v Hall [1976] 2 NZLR 678  and R v Hartley [1978] 2 NZLR 199, with affirmation of the Court's inherent jurisdiction to prevent unfair trials; and that jurisdiction would be available if truly needed in a case in the present field.

"It is possible to imagine a case in which allegations of sexual misconduct are so vague or relate to a time so long ago, without justification for the delay, that it would be unfair to place an accused on trial upon them. Then the possibility of exercising the protective inherent jurisdiction would fall for consideration in all the circumstances of the particular case."

This comes down to the avoidance of vagueness and the avoidance of prejudicial or unconscionable delay. Logical difficulties may persist, as mentioned in the discussion of the use of specimen or sample counts in Tyack v. The State (Mauritius) [2006] UKPC 18 (29 March 2006) at 18-21. The problem is one of framing legislation that permits inclusion of more than one occurrence of an offence in one count, while still complying with the right to a fair trial. The New Zealand provision, s 329(6) above, is not absolute, but applies "in general" to a single "transaction". In Mason the Supreme Court said of this:

" [9] ... The qualification "in general" and the relatively indefinite word "transaction", which can encompass both a single event or a course of conduct, recognise the difficulty of application of any precise rule to the charging of the many different fact situations in which acts of offending may occur. They indicate the need for some flexibility. The essential requirement emerging from case law is that, if particular acts of alleged offending can sensibly be charged separately without undesirably lengthening the indictment (overcharging), then that should be done. It is necessary that distinctly identifiable acts of alleged offending be the subject of separate charges where the accused may be prejudiced either at trial or on sentencing if they are combined in a single count. On the one hand, the use of a multiplicity of counts is to be avoided where fewer would suffice for the interests of justice. On the other, overly complex counts may prejudice the defence or make it difficult to frame fair and accurate directions to the jury. If necessary trial Judges should intervene if either problem arises.

"[10] We repeat what Anderson J said for this Court in R v Qiu [[2007] NZSC 51, [2008] 1 NZLR 1 at [8] ].The Court endorsed the practice of not charging as separate offences a continuing course of conduct which it would be artificial to characterise as separate offences. But the Court said that it was another thing to charge as a single count repetitive acts which can be distinguished from each other in a meaningful way, even if they relate to more than one act of a certain class or character. The Court added something which the present case vividly illustrates:

'Separate counts facilitate fairness in the conduct of the trial by focusing attention on matters of fact and law which can and need to be distinguished for the purposes of different counts. In the event of conviction, they assist the sentencing Judge by indicating the extent of culpability.'"

Some delicate calculations may need to be made, as appears to have been the position in Mason, where experienced defence counsel had not sought severance of the count. Presumably this was because the chances of a successful defence to the lesser allegation were thought to be low, and that even if successful, splitting off the lesser allegation would merely highlight the more serious one and would prevent a sentencing submission that the facts should be assessed as less serious than they could have been. Fairness to the defence is not always easy for the defence to accept, as was seen earlier in these notes in relation to leaving alternative counts to the jury: "Fairer than you may want" .

Good character direction

An addition to our collection of cases illustrating when absence of a good character direction requires the quashing of a conviction: Campbell v R [2010] UKPC 26 (3 November 2010).

Here the omission of the direction was not the result of a tactical decision by the defence, and the case involved a contest between an eyewitness and the accused who gave evidence. In such cases the direction would be "of greatest potential significance" (para 45).

The Board also summarised the requirements for an eyewitness identification direction (para 28), and began with an extended discussion of when the Board can grant special leave to appeal to it where the lower court has refused leave (para 5-25).

W(h)ither Weiss?

Usually only one side in a criminal case appeals, but in R v Nguyen [2010] HCA 38 (3 November 2010) the Crown appealed against the Court of Appeal of the Supreme Court of Victoria's quashing of convictions for murder and attempted murder and its entry of acquittals, and the accused (DQN) appealed on the basis of an alleged misdirection by the trial judge by way of failure to leave to the jury the alternative of manslaughter on each count. DQN's appeal point had been raised in the Court of Appeal but was not addressed in its judgment.

The High Court therefore had to consider, on the Crown's appeal, whether the Court of Appeal had been correct in holding that the verdicts had been unreasonable, and on DQN's appeal, whether there had been an error of law.

Both these appeals had to be decided: it would have been insufficient to simply dismiss the Crown's appeal because there had been a substantial miscarriage of justice, because that would leave standing the Court of Appeal's entry of acquittal.

In the result, the Crown was entitled to a retrial because the verdicts were not unreasonable and the Court of Appeal should not have allowed DQN's appeal on that ground. There had to be a retrial because DQN's appeal also had to be allowed: there had been a substantial miscarriage of justice at trial.

Do these two grounds of appeal – reasonableness of verdict, and error of law giving rise to a miscarriage of justice – require different approaches by the appellate court? Both are subject to the proviso that the appeal may be dismissed if no substantial miscarriage of justice had actually occurred.

What is interesting about the High Court's judgment is its absence of reference to Weiss v R (2005) 224 CLR 300. Weiss requires the appellate court, upon finding that there was an error at trial giving rise to a miscarriage of justice, to determine whether the miscarriage was "substantial" by examining the whole of the record to assess whether the prosecution case was proved beyond reasonable doubt. Should you wish, you may locate my earlier comments on this by searching this site on the word Weiss.

In Nguyen the Court applied M v R [1994] HCA 63, (1994)181 CLR 487. This involves asking "was it open to the jury" to convict? It differs from the Weiss question, "is the appellate court satisfied of guilt"?

Plainly, the High Court could not apply Weiss because that would involve saying that it was satisfied of guilt, and also that there had been a substantial miscarriage of justice arising from failure to leave the jury with the alternative of manslaughter. The implications of this appeal highlight how inappropriate the Weiss approach can be.

Classic probability conundrums

There are many examples online of probability conundrums. I have mentioned some in my draft paper on propensity evidence, linked on this page. I mention two of them here.

The first problem is, if you are told that a stranger to you has two children, at least one of whom is a boy, what is the probability that the other is also a boy?

Note that neither child has been singled out, so this is a problem about the probability of having two boys. Given that one child will have been born before the other (even if a twin), the two children can have arrived as BB, BG, GB. The other combination, GG does not count in this example. So, one out of three eligible combinations gives two boys, and the probability of that occurring is 0.33.

If one child had been singled out, the problem would have been about the gender of one child (the other one). You might have been able to see one child, and were asked about the other. For one child, the probability of it being a boy is 0.50.

This problem illustrates how important it is to ascertain exactly what the issue is. The seemingly endless argument about this problem in the discussion to the above NY Times article exemplifies this.

Some people wonder why the combinations BG and GB are counted separately. They would say that the relevant combinations are just two: BB and (B and G). The error here is in thinking (B and G) will occur just as frequently as BB. This overlooks the way in which the data can arise. (B and G) will occur in two ways (namely, BG and GB) whereas BB will occur in only one way.

So the two lessons from this problem are: ascertain the issue, and examine how the data arises.

The other problem is known most commonly as the Monty Hall problem, after a game show host. The task is to pick which of three doors, A, B and C, will when opened reveal a prize. You pick one door, say A. The host, who knows where the prize is, then tells you it is not behind door C. Should you change your guess to door B?

When you choose door A, you divide the doors into two groups or classes: the chosen and the not-chosen. The probability of the prize being behind door A is 0.33. The probability of it being in the not-chosen class is 0.67. Once the host eliminates one member of the not-chosen class, the class probability for that class attaches to the only remaining member, door B. You should change your guess.

Some people object that each door always has the same probability of concealing the prize, and that there is no reason to change your guess from A. This ignores the new information the host gives you. Changing the probability distribution among members of one class does not affect the probability distribution among member(s) of another class. The constant probabilities are wrongly linked to the individual doors, rather than to the classes.

The lessons from this example are: use all the relevant information, and recognize when the issue is about members of one class as distinct from members of another class.

Another look at the right to legal advice

The relationship between the right to legal advice and the right to a fair hearing, discussed here in commentary on R v Sinclair, 15 October 2010, was again a central theme in yesterday's United Kingdom Supreme Court decision, Cadder v HM Advocate [2010] UKSC 43. In this case the law of Scotland was brought into line with the law in other jurisdictions that apply the European Convention on Human Rights.

I suggested that Sinclair will have to be applied in a way that preserves the defendant's absolute right to a fair hearing. This too is a requirement of Cadder. All members of the Court agreed with the two leading judgments (although technically Lord Mance agreed with Lord Hope but through him also agreed with Lord Rodger). Lord Rodger put the relationship between the non-absolute right to legal assistance and the absolute right to a fair trial this way (95):

"First, as the European Court recognises, [in Salduz v Turkey] 49 EHRR 421, 437, para 55, since the right to legal assistance at the stage when a suspect is to be questioned is an implied right, it is not absolute and must be subject to exceptions when, in the particular circumstances, there are compelling reasons to restrict it. It is not suggested that there would have been any such reasons in this case. But the circumstances in which section 15 of the 1995 Act envisages delaying intimation to a solicitor (the interest of the investigation or the prevention of crime or the apprehension of offenders) could perhaps constitute compelling reasons to restrict the right of access in an appropriate case. It has to be remembered, however, that even a justified restriction may deprive an accused of a fair hearing and so lead to a violation of article 6: 49 EHRR 421, 436, para 52."

Key concepts are the "compelling reasons" needed before the right to legal assistance can be restricted, and the nature of the "fair hearing". Neither of those called for detailed consideration in Cadder.

I doubt that in practice the correct application of Sinclair will produce different outcomes in Canadian courts from those in Scottish courts under Cadder.

Lord Rodger at 100-103 also dealt with the argument that changing the law of Scotland now would create a need to revise all the decisions that had applied the earlier law, by applying dicta in A v The Governor of Arbour Hill Prison [2006] 4 IR 88, per Murray CJ at paras 36-38.

Lord Hope referred to Gafgen v Germany (a case discussed here on 3 July 2008, 3 December 2008, and 25 June 2010, and also in Part 3 of the overview of these notes posted on 14 January 2010). He held at 48 that Gafgen turned on it's facts and was not a limitation of Salduz.

With there now being less wriggle-room concerning rights compliance, attention will focus on whether waiver of the right to legal advice had been constituted by the defendant's continuing cooperation with police questioning.