Elucidating Weiss? Grappling with “substantial miscarriage of justice”

Another look at Weiss (noted here 16 January 2006, 9 February 2006, 25 June 2007, and various dates – search this site for "Weiss" – to 9 July 2009) and the proviso occurred in Baiada Poultry Ltd v R [2012] HCA 14 (30 March 2012).

In Baiada Poultry Ltd the jury had not been instructed on a requirement for commission of the offence, so the conclusion that there had been a substantial miscarriage of justice was unavoidable and the proviso should not have been applied by the lower appellate majority. A retrial was ordered.

Some of us are about to enjoy an appeal criterion that no longer involves the proviso: see s 232 of the Criminal Procedure Act 2011[NZ]. Nevertheless, some dicta in Baiada Poultry Ltd are of interest. The High Court of Australia continued its "back to the words of the legislation" approach to the requirement of a substantial miscarriage of justice: the phrase should not be replaced by judicially created categories of fundamental defects [23], [31]. Well, I don't think that refusal to say what a phrase means is particularly helpful: it invites re-invention of the wheel with each appeal. The reformed New Zealand law will omit the word "substantial" and will include a definition of "miscarriage of justice". Further elaboration of "unfair trial" will be needed, because counsel always have to say why they are submitting something was unfair.

Another point in Baiada Poultry Ltd is that it is unhelpful to describe the appellate court as exercising a discretion when it considers whether to apply the proviso. We New Zealanders will note that the new provision is mandatory in its terms: "must allow … appeal … if satisfied that …". It is unlikely that if an appeal turns on the assessment of fairness this will be considered a discretionary matter: it is plainly one of making a finding as a matter of law.

Again, in Baiada Poultry Ltd, where the fact that the jury convicted the defendant is being considered on appeal, regard must be had to the issues it was left to decide. If, as here, an issue had not been left to the jury, the verdict is irrelevant [28] and per Heydon J at [67].

And finally, a major point in Weiss was repeated: if the appellate court is satisfied that on the evidence properly admitted the defendant was guilty, that is a necessary, but not a sufficient, condition for applying the proviso. That is to say, even if he was obviously guilty, the defendant's appeal cannot be dismissed if his trial had been unfair. The difficulty here is that fairness encompasses errors that affected the result of the trial, that is, errors that affected the jury, and it is immaterial that the appellate court thinks the errors should not have affected the result. The High Court may be linking the proviso jurisprudence to a narrow definition of trial fairness.

I suggest the trial in Baiada Poultry Ltd was unfair because the law was not properly applied to the facts. In any event, the appeal was allowed because the Court of Appeal majority had, in evaluating the evidence, done so without sufficient information to support its conclusions [37]-[39] or had drawn conclusions that did not necessarily follow from the evidence (per Heydon J at [70]).

Propensity evidence: relevance and probative value

The topics du jour in BBH v R [2012] HCA 9 (28 March 2012) were the requirements of relevance and probative value in relation to the admissibility of propensity evidence.

Everyone agrees that the first requirement for evidence to be admissible is relevance. The evidence must have a tendency to prove a matter in issue in the case. This does not mean it must be looked at in isolation, but assessment of its tendency to prove a matter in issue, its relevance, is made in the context of the other evidence in the case.

All well and good. But judges can differ over whether evidence is relevant. In BBH French CJ, Gummow and Hayne JJ held the contested evidence was not relevant. Their narrow view of it is in contrast to that taken by the other members of the court. French CJ was particularly concerned to avoid circular reasoning [58]: it would be wrong to use other evidence of the offence charged to interpret the tendency of the contested evidence. French CJ described the contested evidence as a "snapshot" of an incident that may or may not have been of the kind that would have made it evidence of similar facts.

But Heydon J [102] rejected the snapshot approach and looked more carefully at the context of the contested evidence, and concluded that it was capable of having the required similarity. So did Crennan and Kiefel JJ jointly [152], [159]. Bell J also noted circumstances in relation to the contested evidence that supported similarity [198].

Once relevance is established, propensity evidence must pass another hurdle. It must reach a required level of probative value. The applicable standard in this case was laid down in Pfennig v R [1995] HCA 7, (1995) 182 CLR 461. This standard is by no means accepted widely, as Crennan and Kiefel JJ note at [134]. In any event, and broadly speaking, it involves pretending that all the contested evidence is accepted at its highest from the prosecution point of view and also pretending that there remains a reasonable doubt about guilt on the other evidence for the prosecution. The test then is, is the contested evidence capable of removing a reasonable doubt about the defendant's guilt? If so, it is admissible as propensity evidence, otherwise not.

French CJ said that even if the contested evidence was relevant so that Pfennig had to be applied, the result would be that it was inadmissible [59], although he did not elaborate. Hayne J, with Gummow J agreeing, came to the same conclusion [81]. There remained a rational explanation consistent with innocence. This seems to mean that even considered with all the other prosecution evidence the contested evidence had so little probative value that it would leave a reasonable doubt about the defendant's guilt.

The other judges concluded that under Pfennig the contested evidence was admissible. It was not circular to look at the contested evidence in the light cast by the other prosecution evidence. Crennan and Kiefel JJ at [159] with Bell J agreeing at [199] stressed the independence of the witnesses to the two events (that is, the witness giving the propensity evidence and the complainant giving evidence of various offences), the absence of collusion, and the unlikelihood of the coincidence of both witnesses giving evidence of similar incidents. The difference from circularity in the relevance assessment is that here, when we get to the Pfennig stage, similarity has been established. Probative value reflects how the contested evidence bears upon the evidence supporting the present allegations.

The correctness of the Pfennig test was not in issue in this appeal: Crennan and Kiefel JJ at [134]. Nor was the judge's direction to the jury that the propensity evidence could only be taken into account if it was proved beyond reasonable doubt. This, as Crennan and Kiefel JJ said [165]-[168], was a consequence of the chain of reasoning analysis in Shepherd v R [1990] HCA 56, (1990) 170 CLR 573. It is not a universal requirement that propensity evidence be proved beyond reasonable doubt; instead it can be treated, once admissible, as just another sort of circumstantial evidence and given some probative value even if doubts about its reliability may persist, as long as it is more probably true than not true. See for example R v Holtz [2003] 1 NZLR 667, (2002) 20 CRNZ 14 (CA). Instead of Pfennig, in New Zealand we use the statutory requirement that the probative value of the propensity evidence outweighs its unfairly prejudicial effect, with specific criteria to be considered: Evidence Act 2006, s 43. These include the extent of the similarity, the number of people making the accusations, whether admission of the evidence would unfairly dispose the fact-finder against the defendant, and whether the fact-finder would give the evidence disproportionate weight.

Kettling and tracking

A lecture on Thursday evening by Professor Andrew Ashworth of Oxford reminded me to mention Austin v United Kingdom [2012] ECHR 459 (15 March 2012). This concerns the procedure of "kettling" people by detaining (oops – begging the question there) them when civil unrest breaks out and the police need to maintain order. In London thousands of people where kettled for about 6 hours without food, drink, toilet facilities, and with only room to stand or sit on the pavement. Was this a breach of Article 5 of the European Convention on Human Rights?

Article 5 gives everyone the right to liberty and security of the person, and only permits deprivation of liberty in six specified circumstances (see para 38 of the majority judgment). The government argued that either kettling was not a deprivation of liberty, or, if it was, it was justified by Article 5 as a detention in furtherance of the police's obligation to preserve the peace, or as a detention reasonably necessary to prevent offending or flight of offenders.

The majority interpreted the Convention as a "living instrument" [53] and held that Article 5 cannot be interpreted so as to make it impracticable for the police to fulfil their duties of maintaining order and protecting the public [56]. Further (or alternatively) the context of the kettling must be considered because unavoidable restrictions on movement arising from circumstances beyond the control of the authorities and which are necessary to avert a real risk of serious injury or damage and which are kept to the minimum required for that purpose are not "deprivations of liberty" within the meaning of that article [59], [60].

On the facts here the majority held that the kettling was reasonable and did not amount to a deprivation of liberty within the meaning of Article 5.

The 3 minority judges considered that there had been a deprivation of liberty. They questioned the proposition that if a restrictive measure was necessary for a legitimate public-interest purpose it did not amount to a deprivation of liberty. The reason for the deprivation of liberty should not be relevant to whether it was a deprivation of liberty. The reason is only relevant to whether the deprivation of liberty was justified under Article 5. Also, Article 5 does not warrant a distinction between deprivations of liberty arising from public order considerations and other deprivations of liberty, as the Grand Chamber had held in A v United Kingdom [2009] ECHR 301 (19 February 2009 and noted here 22 February 2009). See also Jendrowiak v Germany ECHR 14 April 2011. The minority also pointed out that the majority were ignoring another decision of the court: Gillan and Quinton v United Kingdom [2010] ECHR 28 (12 January 2010).

My assessment: Basically, the court's jurisprudence follows pragmatism rather than precedent. There is nothing wrong with pragmatic balancing of the values that underlie competing rights, but a lot of guess work is involved. No information was considered concerning the occurrence in groups of people of the kettled size of lost opportunities, risks to health and financial costs, nor was there any consideration of how those impacts should be measured for comparison with the advantages of reducing the costs of rioting. The majority judgment leaves us with the impression that a fuzzy sort of judicial comfortableness was the criterion, with emphasis on the police having to act in the longer-term interests of everyone. That begs the question of there having been no alternative police response.

Another case mentioned by the Vinerian Professor is United States v Jones
2011 USSC No 10-1259 (23 January 2012). This decided that the covert placing of a GPS tracking device on a car was a trespass and information subsequently gathered about the suspects' movements was unlawful search in breach of the Fourth Amendment. Thus the trespass test continues to be relevant notwithstanding the more recent common law development of the reasonable expectation of privacy test. This case did not require consideration of whether the search was reasonable because that argument was not raised in the courts below. A useful commentary by Atli Stannard on the comparative law can be found at http://www.acclawyers.org/?p=2980 .

When to rescue the rescuer

Procedural fairness may have to be sacrificed to protect a litigant's rights. An illustration is W (Algeria) & Anor v Secretary of State for the Home Department [2012] UKSC 8 (7 March 2012).

The moral issue here was, in the broadest possible terms, should a rescuer be protected if the rescue might be without merit? More specifically, when should a tribunal be able to extend the protection of confidentiality to a witness who claims to have information that would assist a litigant?

The appeal concerned extradition proceedings and whether the appellants, if extradited, would be at risk of ill-treatment in breach of their rights under article 3 of the European Convention on Human Rights.

A witness who claimed to be able to substantiate the risk of ill-treatment refused to give evidence unless the Special Immigration Appeals Commission (SIAC) made an order of confidentiality that would prevent the Secretary of State disclosing to anyone his evidence and his identity. Could SIAC make such an order?

The order would prevent the Secretary investigating the credibility and reliability of the witness, or at least would limit the Secretary's ability to carry out those inquiries. Further, the application for the order would have to be made ex parte, and the Secretary could not therefore oppose it. These were the limits on procedural fairness that would arise if the order was made.

Arguing against the making of such orders, the Secretary submitted that policy favoured the ability to pass on information to governments where threats to security would otherwise not be met. For example, the witness may be a terrorist planning an atrocity, and this may be evident from the nature of the evidence he gives in support of the risk of ill-treatment. Confidentiality might have severe diplomatic consequences if the government of a targeted country discovered that the Secretary had not passed on information that may have saved lives.

So, which is to dominate? The interests of the litigant facing extradition and a risk of ill-treatment, or the interests of those vulnerable to terrorism?

The Supreme Court was unanimous. Two judgments were delivered, each agreeing with the other.

Lord Brown found an answer to the Secretary's potential diplomatic embarrassment in the defence of obedience to a court order [14]. It was necessary to maximise SIAC's chances of arriving at the correct decision [18]. However the power to make such confidentiality orders should be "most sparingly used" [19]. If necessary it should be open to the Secretary to try to persuade SIAC to seek a sufficient waiver of confidentiality to address national security concerns, and if that waiver was not forthcoming then SIAC could view the evidence with scepticism or exclude it [21]. And in any event, in deciding whether to make the order SIAC should require a detailed statement of the proposed evidence, why the witness fears reprisals, and how the person challenging extradition learnt of the witness's proposed evidence and what steps were taken to get the witness to give evidence in the normal way subject to the usual safeguards of anonymity orders and private hearings [20].

Lord Dyson said that a confidentiality order should be made if SIAC is satisfied that the witness can give evidence which appears to be capable of belief and which could be decisive or at least highly material on the issue of safety of return, and if SIAC has no reason to doubt that the witness genuinely and reasonably fears reprisals if his identity and evidence were to be disclosed [34].

The issue arose here in connection with article 3 rights (not to be subjected to torture or to inhuman or degrading treatment or punishment), but Lord Dyson added that it would also arise if the case raised a question under article 2 (right to life) [38]. But if the person resisting extradition relied on an alleged risk of breach of some other article of the Convention, "the balance will almost certainly be struck the other way." [38] He gave as an example breach of article 8 rights (respect for private and family life).

Perhaps too a risk in the requesting country of breach of article 6 rights (fair trial, presumption of innocence) might be sufficient to justify a confidentiality order, but that was not addressed in these appeals.

Lord Brown made it clear that his reasoning was based on the balancing of interests and not on the idea that the playing field should be level or that there should be an equality of arms [22] in the extradition hearing. That is to say, the answer did not emerge from fair hearing considerations. Plainly the procedure is unfair to the Secretary who in any event is obliged to act in the public interest and also to disclose information that could assist the person resisting deportation [22].

A right to a fair hearing belongs to the defendant, not to the prosecutor, so indeed it is inappropriate to speak of level playing fields and equality of arms. Inequalities are assumed, and efforts are made to minimise them, but sometimes they serve the public interest and can be tolerated as long as the hearing remains fair to the defendant. See, for example, R v H [2004] UKHL 3.

So, although this issue arose in the context of extradition, it is potentially relevant to criminal proceedings.

Well, we might wonder if international relations are necessarily conducted according to law. Anyone who was brought up on the novels of Ian Fleming and John Le Carre, or who more recently has enjoyed watching "Spooks", will have doubts. It is easy to imagine in the distant and troubled future that some new Secretary might yell at a subordinate (or at a Chief Justice) "Do you think I am going to let thousands of people die just because of an effing confidentiality order?" As far as the law is concerned, the diplomatic argument should not have been raised and an answer to it not given. Whether the policy of sharing information on terrorist threats outweighs the rights of an individual litigant depends on the content of the evidence in respect of which confidentiality is sought in a specific case. General propositions of the kind advanced by the Secretary here are, without that link to the particular evidence, irrelevant. Also, the Court makes an inappropriate link between refusal of waiver and credibility. Refusal should enhance credibility, not diminish it. A person who refuses to waive confidentiality probably has good reasons for doing so and those reasons should support an inference that he knows what he is talking about. The real issues in this sort of case will be the need for the witness to have confidentiality and the risk of the defendant being ill-treated after extradition, and it is unfortunate that the judges did not reach for their copies of Dworkin's "Justice for Hedgehogs".

Honestly paying for illegal gains

For a 3-2 split on statutory interpretation, involving differences over legislative intent and the scope for application of the principle that property rights are not taken away except where the intention to do so is clear, see Re Peacock [2012] UKSC 5.

The subject of the dispute is not of much interest unless your legislation on recovery of the proceeds of crime leaves it unclear whether property acquired honestly after a recovery order is made can be included within the order. In this case the majority held that the legislature did intend that such honestly and after-acquired property should be recoverable.

The problem arose in Peacock because a confiscation order was made on a calculation which included a reduction to recognise the defendant's means to pay. Subsequently his means legitimately increased. In New Zealand under the Criminal Proceeds (Recovery) Act 2009 a profit forfeiture order does not take into account the defendant's means to pay, and any amount over that actually realised remains owing as a debt to and recoverable by the Crown.

Need witness competency be an issue separate from fairness?

The Supreme Court of Canada has split on the requirements for witness competency: R v D.A.I. 2012 SCC 5 (10 February 2012). The issue in Canada is one of statutory interpretation, and here revolved around whether an adult but mentally impaired witness needed to show an appreciation of the significance of a promise to tell the truth. The majority held that such appreciation did not need to be demonstrated because it could require some difficult abstract concepts. The policy of allowing impaired victims access to justice was of great importance.

Plainly, if the witness's response to questioning while giving evidence was such as to deprive the right of the defence to confront the witness, there would be trial fairness issues. However at the threshold stage the issue was whether the witness showed understanding of the oath or affirmation, and was able to communicate the evidence.

We in New Zealand do not have a competency requirement for witnesses. The idea is that "No person, whether on the grounds of age, intellectual disability, or mental disorder, or on any other ground, may be disbarred from giving evidence on the ground of incompetence. ... In the case of witnesses whose testimony is unhelpful – because of incoherence, for example – the judge may still exclude that evidence under the general exclusionary provisions in s 8": NZLC R55 "Evidence" – Vol 2 at C294.

Book review: “Trial by Ambush” by Joe Karam

No objective reader of Joe Karam's "Trial by Ambush" can possibly come to any conclusion other than that Robin Bain committed the murders of his family. It is equally obvious that David Bain must receive compensation for his years of imprisonment which were a direct result of improprieties in the investigation and failures by the authorities including the judiciary to provide a timely remedy.

It is the failings of the judiciary that are of most concern to readers of this site. Three appeal judges sat on what the Privy Council called the Third Court of Appeal in this case. Their single judgment contained, according to submissions to the Privy Council prepared by Karam and reproduced as Appendix B to his book, an astonishingly large list of errors of fact.

One judge might well make the occasional slip in summarising the evidence in a case, but how can so many errors pass by three judges? This calls into question the soundness of a recent proposal by our Law Commission that factual issues should be decided by a small panel of judges. The Commission likens this to the practice in Belgium, but China would also be a relevant point of reference.

Work done by committees tends to be distributed among members, whereas in trials it is brought home to jurors that they are individually responsible for their decision. The Court of Appeal is over-worked and under-resourced, and its judges – all of whom are of high quality by international standards - are encouraged to bring in unanimous decisions in criminal cases. That is hardly an environment that will promote accuracy.

But the errors in the Bain case began much earlier, according to Karam's book. The police decided too quickly to charge David. They then sought evidence against him rather than being open to the alternative that Robin was the murderer. They failed to preserve, record or have analysed evidence that might have supported David's innocence, and at an astonishingly early stage after the first trial they destroyed evidence. Evidence that was disclosed to the defence before both trials was dumped on the defence in huge volume and in a disordered state, without indication of what was significant.

This is the second aspect that is of interest here: how can the prosecution be required to exercise its disclosure obligations fairly? In the adversarial system, where the trial is a contest with a winner and a loser, procedural fairness can be sacrificed for the sake of egotistical stratagems. Trials and appeals become contests between counsel, and between counsel and the bench, to see who is cleverest.

If you think Robin's full bladder eliminated him as a suspect, you won't think so after reading this book. Nor will you think that David turned on the computer. Nor that David put the washing on before going on his paper run. Nor that all victims except Robin were killed before David left on his paper run. You will be convinced that Robin left bloodstained footprints in the carpet as he shot the victims – David's feet were too big to have made them. Blood on Robin's hands (not available for analysis, but visible in tardily disclosed photographs) was consistent with coming partly from the bloody gloves he wore, and partly from splash-back from a victim as he held the rifle. Blood on Robin's trousers and on his shoes was consistent with his position as he pulled the trigger committing suicide, as was blood on the curtain by the computer. Robin was the psychological mess, not David. Robin fitted the profile of men who kill their families, and David didn't. The gurgling heard by David coming from one victim was of the kind that can occur after death, and the evidence of that possibility was stronger at the second trial than it had been at the first.

According to this book, there is no reliable evidence that David was the murderer. At one stage I thought that Karam's account of a green towel containing traces of Robin's blood and found in the laundry left open the possibility that David put it there after killing Robin. But Robin had an injury to his hand that would have bled, and that was probably sustained in the course of a fight with his younger son who had not been killed by the first shot Robin fired at him. Robin probably wiped blood from that wound on to the towel and left it in the laundry with his other blood soaked clothes, for David to put in the wash after his paper route.

It is so hugely unlikely that David was the murderer that, as Karam says, anyone suggesting the contrary had better put up compelling evidence. There is none. It would have to be as incontrovertible as a freely given confession by David, or a reliable eyewitness to the killings, or a video recording of them. If evidence of that kind had been obtained the case would not be one of inferences, or probabilities, but one of certainties. As it is, the probabilities are so enormously in favour of David's innocence that they amount to a certainty.

The community must be thankful for people like Joe Karam. We all are entitled to know that if the State makes an error and wrongly punishes us, we will be properly compensated. Unfortunately it is not always the State's own officials who can be relied on to provide that assurance.

Need the punishment fit the crime?

For those of us who do not need to worry ourselves over the intricacies of Australian constitutional law, Bui v DPP (Cth) [2012] HCA 1 (9 February 2012) makes a simple point.

It is that when on a successful prosecution appeal against sentence the appellate court imposes a more lenient sentence than it considers the sentencing court could have properly imposed, it is reflecting a sentiment behind the principle against double jeopardy.

"13 It has been explained that what is referred to as the rule against double jeopardy is a manifestation of the principles expressed in the maxim nemo debet bis vexari pro una et eadem causa (a person shall not be twice vexed for one and the same cause), which is the foundation of the pleas of autrefois acquit and autrefois convict ... .  The underlying idea is that the State should not be allowed to make repeated attempts to convict an individual thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity as well as enhancing the possibility that even though innocent he may be found guilty. The rule is properly understood as a value which underpins the criminal law." [case citations and internal quote marks omitted]

There is an interesting difference between the Criminal Procedure Act 2000 (Vic), ss 289(2), 290(3), and the Criminal Procedure Act 2011 (NZ), ss 251, 257. The former specifically directs the appellate court not to take into account any element of double jeopardy involved in the appellant being sentenced again, whereas the latter makes no mention of this.

I suppose that in assessing the results of the unspoken competition between law reform bodies to come up with the perfect criminal procedure laws, Victoria should be penalised on this point. At least that is so unless you think that, willy nilly, the offender should get the sentence he deserves, later if not sooner.

Kahneman’s Thinking, Fast and Slow

Everyone is reading Daniel Kahneman's "Thinking, Fast and Slow" (2011). A passage in a recent New Zealand Court of Appeal decision, the details of which are currently suppressed, raises questions about the right way to think about propensity evidence.

The case citation is [2011] NZCA 645 and the date of the decision is 14 December 2011. I will call it X v R. I will also adapt the quotation from para [34] of the judgment to comply with the order suppressing identifying particulars of the appellant:

"... it is an unlikely coincidence that Mr X, twice within a year, would be the hapless and innocent victim of being apprehended driving a car with [other people in it and also with evidence of criminal offending in it]. The evidence goes directly and cogently to the key issue: did Mr X know of the [items] found in the car he was driving on [the second occasion]?"

While the conclusion that the evidence had sufficient probative value to be admissible is intuitively correct, this form of reasoning entails several thinking errors of the kind that Kahneman discusses.

There is a tendency to draw strong conclusions from incomplete information (the "what-you-see-is-all-there-is" error). We are not told anything about the frequencies that matter in the above case: how frequently do people who are guilty of the present sort of offending have a previous recent incident of this sort of police apprehension, compared with how frequently do people who are innocent of offending of the present kind have a recent previous such apprehension?

There is a substitution error: we tend to answer difficult questions by answering a much simpler related question. Here it is easy to answer the question about the recent apprehension and to apply that answer to the more difficult question of guilt on the present occasion. This is closely related to another error.

Base-rate neglect is the error of neglecting statistical likelihoods in favour of accepting what could be causally possible. The other evidence in the case, relating directly to guilt on the present occasion, may significantly affect the strength of our tendency to see a causal connection between the first apprehension and the second.

Another error is the halo effect, or in the present context what might be called the devil's horns effect. Having learnt something bad about the defendant's behaviour on an earlier occasion, we are tempted to overemphasise this when we consider his present guilt.

Further, there is the narrative fallacy: we are tempted to accept what we can build into a story that makes sense, although the events may in reality be unconnected. The defendant may have been innocent on the earlier occasion through lack of knowledge of the presence of the things in the car. The coincidence may be real, but it does not suit the story we are tempted to build in which we cast the defendant as a recidivist.

This is similar to another error, the representativeness bias. Where only partial information is available we lean heavily on stereotypes.

For a review of Kahneman's book summarising these and other thinking errors, see the article in the New Zealand Listener, January 21-27, 2012, by David Hall.

In the above case, where the issue was the defendant's knowledge of the presence of the things in the car, it is easy to build a narrative in which the defendant, being ignorant on both occasions, was simply associating with people who were both his friends and offenders. That too would be a combination of thinking errors.

Courts too often make assumptions about likelihoods without inquiring into occurrences in the real world. The correct approach is Bayesian, as Kahneman – a leading psychologist and Nobel laureate – recognises. But that requires the effort of careful analytical thought rather than our preferred instinctive assessment of circumstances.

Admissibility of eyewitness identification evidence

Just as I was sneaking back to the Southern Hemisphere the Supreme Court of the United States delivered its decision in Perry v New Hampshire. I have previously noted the submissions that the Court received in this case on the vulnerability of eyewitness identification to error.

The reasoning is necessarily tied to the constitutional jurisprudence on due process, so I just summarise the effect of the decision in terms that may be of more general interest.

Sotomayor J dissented, but the majority held, in a decision delivered by Ginsberg J, that there is no need for a trial judge to have the power to exclude such evidence on grounds other than unfairness to the defence. Irregularities in the conduct of an identification can be the subject of trial remedies, such as confrontation and cross-examination, judicial caution to the jury about the need for care before accepting this evidence, and the judicial discretion to exclude the evidence if its illegitimately prejudicial effect outweighs its probative value.

That is a conservative approach. In our neck of the woods we have radically reformed the law: s 45 of the Evidence Act 2006 imposes a burden of proof of reliability on the prosecution where specified formal procedures have not, without good reason, been followed. The standard of proof here is beyond reasonable doubt. The defence may still challenge the admissibility of the evidence if formal procedures have been followed, but the burden is on the defence to prove on the balance of probabilities that the evidence is unreliable. These provisions are discussed in R v Edmonds [2009] NZCA 303 at [79]-[128] (sorry keen readers, not currently available online). The issue for the judge is whether the evidence is sufficiently reliable to go to the jury, not whether the evidence establishes identity to the relevant standard. Proof of reliability is distinguished from proof of identity, and the focus for the prosecution's burden is on the circumstances in which the identification was made. It does not include other evidence suggesting guilt, such as a confession.

There are issues concerning the interpretation of s 45 that remain to be explored. Its application in judge-alone trials has been considered by the Supreme Court: Harney v Police.

Extended secondary liability: assessing the risk

"Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose."

So says s 66(2) of the Crimes Act 1961 [NZ], defining extended secondary participation in offending. The contentious phrase has been "a probable consequence", giving rise to arguments about whether a common intention to use one form of violence, for example, made the use of another more serious form a probable consequence. In turn this led to arguments that use of a knife was not a probable consequence of the use of, say, a common intention to use a baseball bat, or that use of a gun was not a probable consequence of, say, a common intention to use of a knife.

In Edmonds v R [2011] NZSC 159 (20 December 2011) the Supreme Court rejected continued development of this line of case law and directed a return to the words of the statute. 

Of course the same issues will continue to arise: was the common intention one which had the probable consequence of the commission of the offence in question? In violent offences the sort of weapon actually used will usually be relevant, but in a way that is directed to the probability of its being used as assessed from the point of view of the defendant who had the original purpose in common with the principal offender.

"[47] The  approach  of  New  Zealand  courts  to  common  purpose  liability  must  be firmly  based  on  the  wording  of  s  66(2).   That  section  recognises  only  one  relevant level of risk, which is the probability of the offence in issue being committed.  If the level  of risk  recognised  by  the  secondary  party  is  at  that  standard,  it  cannot  matter that the actual level of risk was greater than was recognised.  It follows that there can be  no  stand alone  legal  requirement  that  common  purpose  liability  depends  on  the party’s knowledge that one or more members of  his or her  group were  armed or, if so, with what weapons.  As well, given the wording of s 66(2), there is no scope for a liability  test  which  rests  on  concepts  of  fundamental  difference  associated  with  the level  of  danger recognised  by  the  party.    All  that  is  necessary  is  that  the  level  of appreciated risk meets the s 66(2) standard."

From this it is clear, or at least so it seems to me, that (i) the risk recognised by the secondary party is the risk he actually perceived, not the risk he ought to have perceived, (ii) if the secondary party perceives the risk as a "probable consequence" that is sufficient for his liability, (iii) the secondary party may recognise that risk without knowing that the principal party has a weapon, (iv) there are no gradations of the culpable risk - either the preceived risk is of a "probable consequence" or it isn't.

It follows that evidence of the alleged secondary party's knowledge of the possession of a weapon of a different kind from that actually used is relevant not as itself a criterion for liability but rather as material to whether those criteria are met.

This approach to extended secondary liability will apply by analogy to all offences, not just those involving violence. The central issue is whether the alleged secondary party had what amounted to a belief that commission of the actual offence was a probable consequence of the common intention to commit the originally intended offence. It will not be necessary to prove that the alleged secondary party knew that the principal had the means to commit the actual offence, but if he did know that the means existed that would be relevant to assessing whether he had the necessary perception of probable consequence.

As the Court points out (49), it is for the prosecutor to say what the alleged common intention was. The closer the commonly intended offence was to the commission of the offence that was actually committed, the easier it should be to prove that the latter was a probable consequence of commission of the former.

This decision puts extended secondary liability back on the statutory track, away from which the case law had allowed it to drift. However the role of the phrase "in the prosecution of the common purpose" in s 66(2) could still give rise to debate. In committing the offence for which extended secondary liability is contended, did the principal offender go outside - and bring to an end - the prosecution of the common purpose? Had commission of the commonly intended offence been abandoned? This sort of issue is not likely to arise in cases of violence, where the use of force can be seen as a continuum with the commonly intended offence merging with the one for which extended liability is in question. While Edmonds deals with an aspect of extended secondary liability, other problems in applying s 66(2) will need to be addressed.

Fair trials without central witnesses

It is possible for a trial to be fair without a central witness giving evidence in person and being cross-examined. The witness's evidence may be read at trial but the fact-finder may still have adequate means of testing the reliability of that evidence.

A fair trial is one where the law is accurately applied to facts that are determined impartially. Impartiality can exist when an unbiased fact-finder uses adequate means to assess the reliability and weight of the evidence.

It might be that there are corroborative witnesses who do give evidence and who can be cross-examined. There might also be a similarity between the evidence of independent complainants that is so unlikely to be coincidence that their mutual reliability is virtually assured. In such cases, where the defence can cross-examine the witnesses who support the absent witness, there may be found to be sufficient factors to counter-balance the absence of the central witness so that the defendant is not deprived of a fair trial.

But in other cases the absence of the central witness may not be counter-balanced. There may be no corroborative oral testimony. There may be no evidence that the defence could call to contradict the absent witness. In such cases the fact-finder may be unable to impartially assess the reliability of the absent witness, there being no one for the defence to cross-examine on the central issues.

The rule against hearsay, the exceptions to that rule, and the rule excluding evidence when its probative value is outweighed by the risk of improper prejudice to the defence, are the means by which the common law has endeavoured to ensure the fairness of trials when witnesses are not available for cross-examination. Often these rules have become statutory.

Over the last few years a storm gathered in Europe over this. The European Court of Human Rights had developed a rule that a conviction could not be based on the evidence of a witness who could not be cross-examined if the evidence of that witness was central to the prosecution case in the sense of being the sole evidence against the defendant or of being decisive evidence against him: Unterpertinger v Austria judgment, 24 November 1986, § 33, Series A no. 110. The UK Supreme Court criticised this rule in R v Horncastle [2009] UKSC 14 (noted here as an update to the entry on Al-Khawaja and Tahery v R [2009] ECHR 110, 27 January 2009), and only the most obtuse reader would fail to see that if the Grand Chamber did not allow the UK courts to continue to apply the discretionary approach rather than the Strasbourg rule, continued participation of the UK in European criminal law would be unlikely.

So inevitably Strasbourg yielded and departed from its rule. On appeal from the Chamber decision in Al-Khawaja and Tahery, the Grand Chamber held 15-2 that the rule did not apply where the law of a State contained sufficient safeguards: [2011] ECHR 2127 (15 December 2011).

The majority held that the underlying principle is that the defendant in a criminal trial should have an effective opportunity to challenge the evidence against him (127). The question was whether there were sufficient safeguards to secure the defendant's right to a fair trial (130).

"[142] ...  the defendant must not be placed in the position where he is effectively deprived of a real chance of defending himself by being unable to challenge the case against him. Trial proceedings must ensure that a defendant’s Article 6 rights are not unacceptably restricted and that he or she remains able to participate effectively in the proceedings. ... The Court’s assessment of whether a criminal trial has been fair cannot depend solely on whether the evidence against the accused appears prima facie to be reliable, if there are no means of challenging that evidence once it is admitted."

The phrase "not unacceptably restricted" is a bit alarming at first blush, suggesting perhaps that sometimes a restriction on the right to a fair trial will be acceptable. But this is not what was meant. The article 6 rights include subsidiary rights to the right to a fair trial, and restrictions on those have always been tolerated when necessary as long as they do not compromise the defendant's absolute right to a fair trial.

So, where there are restrictions, there must be adequate safeguards (145):

"Also, in cases concerning the withholding of evidence from the defence in order to protect police sources, the Court has left it to the domestic courts to decide whether the rights of the defence should cede to the public interest and has confined itself to verifying whether the procedures followed by the judicial authorities sufficiently counterbalance the limitations on the defence with appropriate safeguards. The fact that certain evidence was not made available to the defence was not considered automatically to lead to a violation of Article 6 § 1 (see, for example,Rowe and Davis v. the United Kingdom [GC], no. 28901/95, ECHR 2000 II). Similarly, in the case of Salduz, cited above, § 50, the Court reiterated that the right to legal assistance, set out in Article 6 § 3 (c) was one element, amongst others, of the concept of a fair trial in criminal proceedings contained in Article 6 § 1."

These safeguards must "counterbalance" the limitations on the defence (147):

"... The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case."

So when the majority speak of balancing the interests of the defence, the victim, witnesses and the public interest (146) as an approach to the overall fairness of the proceedings, that is a compendious way of referring to a two-stage assessment: first the balancing of competing interests in relation to subsidiary rights, and second the assessment of the effect of that balancing on the defendant's right to a fair trial.

The partly dissenting judgment of Sajo and Karakas JJ views the majority's counterbalancing approach as uncertain and inadequate protection of a defendant's rights, diminishing the value of human rights in Europe. That may be a little exaggerated, as there can be no doubt that the majority would agree with Sajo and Karakas JJ's dictum:

"While we understand the nature of the challenges faced by the prosecution when key witnesses die or refuse to appear at trial out of genuine fear, the protections guaranteed by Article 6 speak only to the rights of the defence, not to the plight of witnesses or the prosecution. The task of this Court is to protect the accused precisely when the Government limit rights under the Convention in order to bolster the State’s own position at trial. Counterbalancing procedures may, when strictly necessary, allow the Government flexibility in satisfying the demands of Article 6 § 3 (d). Our evolving application of the sole or decisive test, however, shows that this exception to the general requirement of confrontation is not itself without limits in principle. In the end, it is the job of the Government to support their case with non-hearsay corroborating evidence. Failure to do so leaves the Government open to serious questions about the adequacy of their procedures and violates the State’s obligations under Article 6 § 1 in conjunction with Article 6 § 3 (d)."

And their concluding quotation was from a New Zealand case, R v Hughes [1986] 2 NZLR 129 (CA) at 148-149:

"We would be on a slippery slope as a society if on a supposed balancing of the interests of the State against those of the individual accused the Courts were by judicial rule to allow limitations on the defence in raising matters properly relevant to an issue in the trial. Today the claim is that the name of the witness need not be given: tomorrow, and by the same logic, it will be that the risk of physical identification of the witness must be eliminated in the interests of justice in the detection and prosecution of crime, either by allowing the witness to testify with anonymity, for example from behind a screen, in which case his demeanour could not be observed, or by removing the accused from the Court, or both. The right to confront an adverse witness is basic to any civilised notion of a fair trial. That must include the right for the defence to ascertain the true identity of an accuser where questions of credibility are in issue."

Although statute has permitted the limitation of the right of a defendant to know the identity of a witness in certain limited circumstances, the right to a fair trial remains absolute in New Zealand, as no doubt it does in the United Kingdom.

Beyond the bounds of legal pragmatism

When an orthodox application of the criteria for criminal responsibility does not meet the requirements of public policy, the law must change. When it is left to judges to make the change, existing institutions or concepts are likely to be adapted to meet social requirements.

In R v Gnango [2011] UKSC 59 (14 December 2011) Lord Kerr dissented in his orthodox application of the principles of party liability. He held that neither primary liability as principal offender nor secondary liability either as an aider, abettor, counsellor or procurer, or by reason of extended secondary liability (the sort of common enterprise-gone-wrong that in this case all judges agreed to call parasitic accessory liability) applied to the facts.

The facts were simple and are found in the statement of the question of law that arose in this case:

"If (1) D1 and D2 voluntarily engage in fighting each other, each intending to kill or cause grievous bodily harm to the other and each foreseeing that the other has the reciprocal intention, and if (2) D1 mistakenly kills V in the course of the fight, in what circumstances, if any, is D2 guilty of the offence of murdering V?"

It was a gunfight. There was no room for extended secondary liability here because any agreement that D2 may have had with D1 could not sensibly include agreement that D1 should shoot at him.

So D2 could only be guilty if he was a principal or if he aided, abetted, counselled or procured D1 in the killing of V who was an innocent by-stander. It should be obvious that he was not a principal, as he did not actually commit the murder himself. This was not obvious to Lords Brown and Clarke, and neither but to a lesser extent to Lords Phillips, Judge and Wilson. But they were engaged in extending the law for policy reasons.

The difficulty with orthodox secondary liability was that in this case the jury had not been invited to consider whether there was an agreement that D2 would be shot at, so even if this absurd possibility were a potential basis for liability it was not relevant to this appeal.

D2 could not have aided (etc) D1 in the killing of V unless he had helped (etc) by agreeing to be shot at.

Lord Kerr was correct in orthodox terms to conclude that there was no basis in the circumstances of this appeal to hold D2 liable for the murder of V.

That conclusion was not good enough for the other judges.

Lord Phillips and Lord Judge, with Lord Wilson agreeing, took the extremely pragmatic approach of saying it doesn't matter whether D2 was a principal or a secondary party, he and D1 both acted dangerously in a public place and each should be held accountable for V's death. Either could have killed someone and it was just fortuitous that the person who fired the fatal shot was D1. These judges, and Lord Dyson, preferred the secondary liability route to responsibility but they agreed with Lords Brown and Clarke that principal liability could also be used as the basis for liability.

Nor does the jury have to agree on the basis for liability: it is the conclusion as to guilt that requires agreement, not the route to that conclusion (63).

Well, you can't just pluck someone out of an unruly mob and say this person could easliy have been the one who caused the relevant harm so he should be held responsible for it even if it is known that he didn't actually do it himself. Nor can you pretend that he intentionally assisted or encouraged the commission of an offence when there is no evidence he meant to help or encourage its commission. Yes, the law must further the interests of the community, but there must be a rational, formalist, basis for attributing responsibility for crime. Otherwise we will have a society in which judges can simply say we shouldn't let this person off so we will hold him liable.

The strength of vagueness

Two vague but fundamental concepts

The first vague concept: abuse of process

Complicity by Australian officials in the unlawful deportation of the defendant (appellant) to Australia led to subsequent criminal proceedings against the defendant in Australia being stayed as an abuse of process in Moti v R [2011] HCA 50 (7 December 2011).

Abuse of process is open-ended, not to be confined to rigid categories of official misconduct (60):

" ... the forms of expression adopted in the decided cases must be understood in the context of the particular facts of each case. None should be read as attempting to chart the boundaries of abuse of process. None should be read as attempting to define exhaustively the circumstances of removal of an accused to this country that warrant exercise of the power to stay criminal proceedings against that person or as giving some exhaustive dictionary of words by one or more of which executive action must be described before proceedings should be stayed. None should be read as confining attention to whether any act of an Australian Government official constituted participation in criminal wrongdoing, whether as an aider and abettor or as someone knowingly concerned in the wrongdoing. And the use of words like "connivance", "collusion" and "participation" should not be permitted to confine attention in that way. All should be understood as proceeding from recognition of the basic proposition that the end of criminal prosecution does not justify the adoption of any and every means for securing the presence of the accused. And in this case, as in others, the focus of attention must fall upon what Australian officials did or did not do."

Recognition of abuse of process is a response to the policy of even-handed justice and the maintenance of public confidence in judicial process.

"57. ... two fundamental policy considerations affect abuse of process in criminal proceedings. First, "the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike" [Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 520]. Second, "unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice" [[1992] HCA 34; (1992) 174 CLR 509 at 520]. Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes. The concept of abuse of process extends to a use of the courts' processes in a way that is inconsistent with those fundamental requirements."

Here the official misconduct was in summary (63):

"...First, Australian officials (both in Honiara and in Canberra) knew that the senior representative of Australia in Honiara at the time (the Acting High Commissioner) was of opinion that the appellant's deportation was not lawful. Second, the Acting High Commissioner's opinion was obviously right. Third, despite the expression of this opinion, and its obviously being right, Australian officials facilitated the unlawful deportation of the appellant by supplying a travel document relating to him (and travel documents for those who would accompany him) at a time when it was known that the documents would be used to effect the unlawful deportation. That is, Australian officials supplied the relevant documents in time to be used, with knowledge that they would be used, to deport the appellant before the time for deporting him had arrived."

The majority, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, held that proceedings on the indictment should be permanently stayed.

Heydon J delivered an interesting dissent, focused on difficulties arising from the vague concepts concerning abuse of process and its lack of definition. Among the points he makes is the availability of alternative, disciplinary, responses to official misconduct instead of giving a person who may be guilty of serious offending immunity from conviction.

There are also some observations in this case on payment of prosecution witnesses, which was another ground of this appeal but which did not need to be considered in detail as no impropriety in that regard was held, unanimously, to have occurred.

The second vague concept: miscarriage of justice

In Handlen v R; Paddison v R [2011] HCA 51 (8 December 2011) the High Court held that the proviso could not be applied where a trial had proceeded on a mistaken appreciation of how participation in the offending could be proved. The requirements for secondary liability, namely that each appellant had intentionally aided, abetted, incited, counselled or procured the commission of the offence, should have been applied. (An alternative form of secondary liability was not relevant in this case.) But the trial proceeded wrongly on the basis that proof of membership of a joint criminal enterprise would be sufficient if commission of the relevant offence was part of that enterprise. The error is that not every member of such an enterprise is necessarily a party to every offence committed by members of the enterprise. This was overlooked by all counsel and by the trial judge. The Court of Appeal of the Supreme Court of Queensland had recognised the error but had applied the proviso because it was satisfied that the appellants were guilty, and there had not been a departure from the fundamental requirement of a trial according to law.

"47. As this Court explained in Weiss v The Queen, there is no single universally applicable description of what constitutes a "substantial miscarriage of justice" [[2005] HCA 81; (2005) 224 CLR 300 at 317]. The appellants were convicted of serious criminal offences ... following a trial at which the prosecution case was conducted, and left to the jury, on a basis for which the law did not provide. The conduct of the trial on this basis conferred an evidentiary advantage on the prosecution, leading to the admission of evidence to prove the existence and scope of the group exercise. Ultimately, the issue posed for the jury was whether the prosecution had proved that the appellants were parties to the group exercise when this was irrelevant to proof of their complicity in Reed's offences. The verdicts on the importation counts reflect the jury's satisfaction that each appellant was a party to the group exercise but it does not follow that the jury must have been satisfied of the facts necessary to establish the appellants' guilt of the importation offences in the only way for which the law allowed. It was not open to the Court of Appeal to apply the proviso in the circumstances of these appeals."

The majority ordered a new trial, Heydon J dissented and would have dismissed the appeals. He analysed the evidence and found guilt proved regardless of how the trial had been conducted. He did not see the defects as fundamental. For the majority, regardless of the strength of the evidence the trial had been such a departure from what was in accordance with the law that, in effect, the right to a fair trial was the dominant consideration.


Vague concepts can still be useful in the law. Reasonableness, fairness, interests of justice, the public interest, the weighing of values underlying rights, do not need to be defined as if they were mathematical concepts. Numbers too, when used in measurements, involve margins of error and require probabilistic reasoning. These areas of vagueness are opportunities for the exercise of judgment. Complaints about vagueness are like the formalists' complaints about pragmatism.

An unruly heckler at the back of the room might cry out that Heydon J had, in the first of these appeals, been too much the formalist, while in the second he had been too much the pragmatist.

Equality before the law, parity of sentence

Some general points on disparity of sentence can be gleaned from Green v R; Quinn v R [2011] HCA 49 (6 December 2011). The case needs to be read in its statutory context which includes a constraint on prosecution appeals against sentence. But aside from that,

• An appeal by an offender on the basis that his sentence was excessive by comparison to that imposed on a co-offender may be allowed to avoid disparity, even if the result is an inadequate sentence, as long as the result is not an affront to the administration of justice (French CJ, Crennan and Kiefel JJ at 33).
• A prosecution appeal against sentences imposed on some co-offenders should not give rise to a disparity with more lenient but un-appealed sentences imposed on other co-offenders (French CJ, Crennan and Kiefel JJ at 37).
• An appeal court should not introduce procedural unfairness by basing its judgment on a perceived defect in the decision of the court below when on the hearing of the appeal the defect was not mentioned and was not the subject of argument (French CJ, Crennan and Kiefel JJ at 76, 80).
• Intermediate courts of appeal should only overrule their own decisions infrequently and in exceptional circumstances, when the earlier decisions are manifestly wrong and not based on principle worked out in clear lines of useful authority (Heydon J dissenting in the result).
• Parity must not be conflated with proportionality, because the starting point is the appropriate sentence for the particular offence. Different offending may justify different sentences which should not be criticised as being disparate (Bell J dissenting, Heydon J agreeing, at 125).
  Prosecution appeals may not be allowed if the result would be disruption to rehabilitation, as the benefit of guidance to other courts may come at too high a cost in terms of justice to the individual (French CJ, Crennan and Kiefel JJ at 43).

Obviousness and obfuscation

Civil proof of offending

It should be obvious that proving something to the civil standard does not undermine failure to prove it to the criminal standard.

Blindingly obvious though this may be, it has troubled the Strasbourg judges. The UKSC was briefly troubled by it (R v Briggs-Price, noted here 2 May 2009), but more recently it was not: Gale v Serious Organised Crime Agency [2011] UKSC 49 (26 October 2011).

Again in Gale the context was civil proceedings for the recovery of property to a value equivalent to the proceeds of serious criminal offending. The judge had applied the civil standard of proof to the issue of the commission of such offences. The Supreme Court unanimously upheld that approach.

There was some delicate treatment of Briggs-Price, and what was the minority view there was now unanimously approved: 47-54. This was achieved by admirably obscure reasoning, perhaps inspired the confusing nature of the Strasbourg jurisprudence.

The presumption of innocence, and the finality of acquittals, are not compromised where in civil proceedings for the recovery of the proceeds of crime the court is satisfied on the balance of probabilities that criminal offending had occurred.



Waiver of the right to legal advice

Another thing that you would have thought was obvious is that a person can waive the right to legal advice without having to receive legal advice about waiver and its consequences.

This point had to be decided in McGowan (Procurator Fiscal, Edinburgh) v B (Scotland) [2011] UKSC 54 (23 November 2011).

Difficulties concerning the effectiveness of waiver can arise from the different rights that may be waived and from whether the alleged waiver was express or implied. But in all cases, waiver must be shown to have been "voluntary, informed and unequivocal" (Lord Hope at 17). "Informed" waiver will not exist if there is reason to believe the defendant had not understood the right that was being waived (36, 38, 44), but a defendant can understand without legal advice (46). The court will, however, proceed cautiously where the defendant is of low intelligence or is vulnerable for other reasons (47).

Further (49), if a defendant declines legal advice, the police should mention that such advice can be obtained by telephone, and if the defendant still declines, the police should ask why and record the answer. That, at least, would be best practice although not an absolute rule (50) [and see also Jude v HM Advocate (Scotland) [2011] UKSC 46 (23 November 2011)]. It could also be wise to advise the defendant that legal advice could be given without cost to him (51).

There was a time when courts took a more tight-sphinctered approach to what was adequate advice of the right to consult a lawyer. In R v Piper [1995] 3 NZLR 540 (CA) for example, it was thought to be unnecessary to inform the defendant that the consultation would occur without the police overhearing it. But now we have the Chief Justice's practice direction (issued under s 30 of the Evidence Act 2006) which requires privacy to be mentioned. It also requires mention of the availability of free advice.

Another point I should make about waiver is this. Waiver is a more sensible requirement to use than is consent. The issue should not be whether the defendant "consented" to police questioning, but rather whether he waived his right to legal advice and to silence. Similarly, in the context of searches, the issue should not be whether the defendant "consented" to a search, but whether he waived his right not to be searched. As anyone can see, it is incongruous to think that a defendant in possession of incriminating material would freely consent to being searched by the police, but less so to think that he might waive his right not to be searched.

Conviction appeals – burdens and risks

How sensitive should an appellate court be to the risk that an error at trial was sufficient to require the quashing of a conviction and the ordering of a retrial?

The proviso has been the traditional legislative criterion, and its formulation has usually used the concept of a substantial miscarriage of justice. That is, an error at trial would not require the quashing of a conviction if it was not a substantial miscarriage of justice.

There was therefore a distinction between miscarriages of justice that were not substantial, and those that were. The former could be termed harmless errors, and the latter errors that may have affected the result of the trial.

But what does "may have affected" mean for this latter group?

In R v Sarrazin 2011 SCC 54 the majority declined to draw distinctions between various grades of risk of affect on the outcome. At [27] Binnie J said:

"It seems to me that there is a significant difference between an error of law that can be confidently dismissed as "harmless", and an assessment that while the error is prejudicial, it is not (in the after-the-fact view of the appellate court), so prejudicial as to have affected the outcome. Such delicate assessments are foreign to the purpose of the curative proviso which is to avoid a retrial that would be superfluous and unnecessary but to set high the Crown's burden of establishing those prerequisites. The same can be said for the other branch of the curative proviso. As a result, the burden of the Crown to demonstrate an "overwhelming" case or a "harmless" error of law should not be relaxed."

What is interesting about this for those of us who are about to come under a reformed legislative regime is this. The burden has shifted from the Crown to the appellant on the issue of whether an error at trial was harmless. Formerly the Crown had to satisfy the appellate court that the error was harmless, now the appellant will have to satisfy the appellate court that it was not.

Only one submission to the select committee on the criminal procedure bill mentioned this point.

Section 232 of our Criminal Procedure Act 2011 materially avoids any distinction between substantial miscarriages of justice and those which are not substantial. The appeal court must allow an appeal if it is satisfied that a miscarriage of justice had occurred, and that means that there is a real risk that the outcome of the trial was affected by the error. There are other aspects, but these are the ones directly in point here.

How will an appellate court interpret "real risk"? Is there to be a gradation of risks, of the sort that the Supreme Court of Canada majority found unacceptable? Or is a real risk anything more than a harmless error or one which occurred in any case other than one where the prosecution's case was overwhelming?

As the dissent of Deschamps, Rothstein and Cromwell JJ in Sarrazin illustrates, opinions can differ over whether there was a reasonable possibility that an error could have affected the verdict.

In the circumstances of that appeal, the majority's approach, which was that failure by the judge to put to the jury the alternative of an attempt amounted to a substantial miscarriage of justice, is preferable to the minority's speculation on how the jury was thinking. Under the New Zealand reformed law, the majority's reasoning would lead to a conclusion that the trial had been unfair because it was not according to law. That is an alternative ground for finding a miscarriage of justice under s 232.

When our hair was black

In the course of considering the alleged naivety of Jonathan Sumption (UKSC blog 9 November 2011) I reached for my copy of "Equality" by Joseph and Sumption, which when it was hot off the press I reviewed for the University of Auckland students' newspaper in 1979.

Those were the days when Sumption's hair was black, as indeed was mine. Here is mine:

His was more flamboyant:

The book is an argument against taxation-imposed redistribution of wealth. The UK was then in the grip of rampant taxation of the rich. The authors' style has a formidable clarity that is only available to the very brilliant.

But although I now forget what I said about the book at the time (update: here is a copy of my review), it seems to me that insistence on logical rigor on matters of social policy has the same weakness I mentioned here on 3 November 2011. Relatively immature cognition favours logic over the weighing of values that should underlie policy reasoning.

Sumption has delayed taking his position on the UKSC bench so that he can work on an important case. He will receive a spectacular fee for that. In 1979 he and Joseph said (p 69):

"In practice, people will not work beyond the point at which the burden of the extra work exceeds the pleasure of the extra money."

Given that the work of a lawyer is generally not particularly burdensome, one can see how the balance may fall.

But people do work for reasons other than "the pleasure of the extra money." There are some burdensome areas of criminal law practice, as anyone who defends the children of the poor will realise. Legal aid returns can be insignificant compared to the burden of the work.

There is naivety in Joseph and Sumption's book. It seeks to shield its glib assumptions behind an insistence that only logic can rebut its argument. Dworkin's hedgehog has the better view. Compare the starkly different views of what is the business of the State. Joseph and Sumption (67):

"It is no business of the State to decide in advance what kind of society it ought to be governing and then to manipulate or frustrate known desires in such a way as to bring such a society into being. It must take its subjects as it finds them. It is means, not ends, which are the proper concerns of governments. It is their proper function to provide a framework of laws and institutions within which men can pursue ambitions of their own devising, and thereby create whatever society is the natural outcome of the infinite variety of human tastes and personalities."

Dworkin (352-354):

"Coercive government is legitimate only when it attempts to show equal concern for the fates of all those it governs and full respect for their personal responsibility for their own lives.

"... [E]verything the government of a large political community does – or does not do – affects the resources that each of its citizens has and the success he achieves. ... [T]he impact of ... personal variables on his actual resources and opportunities must in every case also depend on the political variables: on the laws and policies of the communities in which he lives or works.

"... [W]e cannot avoid the challenge of equal concern by arguing that the resources an individual has depend on his choices, not the government's choices. They depend on both."

Dworkin's conception of the purpose of government is more nuanced and more realistic.

Just to be even-handed, I should confess that around the same time as Joseph and Sumption were writing their short book I was writing an essay for a Masters tutorial on the hallmark requirement for the admissibility of similar fact evidence, in which I asserted that absence of a hallmark can itself be a hallmark. Even now my toes curl and I blush. True it may be that in some contexts the offender who has no hallmark may thereby be distinguished from other suspects, but more generally absence of a hallmark has no probative value. How young I was, how innocent. But the difference is that whereas my error was a simple slip of logic, easily corrected, Sumption's is a neglect of pragmatism. Experience tells us that weak judges tend to rely on logic at the expense of pragmatism. "The life of the law has not been logic, it has been experience."