Aimed at promoting the study of technical aspects of criminal law and procedure, this site considers selected cases from the top appeal courts of Australia, Canada, the UK, the USA, the European Court of Human Rights and New Zealand. From August 2004 there have been approximately 800 entries, including book reviews.
Wednesday, July 25, 2012
Delay and its various remedies
Monday, July 23, 2012
Issue estoppel and sentencing facts
A routine application of issue estoppel, applying R v Mahalingan [2008] SCC 63 (noted here on 15 November 2008) is R v Punko, 2012 SCC 39. In a multi-issue trial it could not be said that there was the necessary logical connection between the verdict and the issue now before the court, so there was no estoppel.
More interesting is the only point that divided the Court: Fish J disagreed with the majority judgment delivered by Deschamps J on whether a judge's finding of fact at sentencing could in principle give rise to issue estoppel. The majority held that it could not, because it was not a decision on the merits, that is, relevant to verdict, and issue estoppel requires a logically necessary conclusion that the jury were unanimous on the issue [11]-[12]. At sentencing the judge makes findings of fact to elucidate the jury's verdict of guilty, but in relation to counts on which the jury acquitted the defendant the judge in sentencing on the guilty verdicts has no power to make a finding binding on future judges [12].
Fish J, who agreed with everything else, considered that the sentencing powers of a judge included the power to find any relevant fact that was disclosed by the evidence, and that the question whether a fact found at sentencing could give rise to issue estoppel should be left open as a matter of principle [26]-[27].
One would have thought that if a sentencing judge finds a particular fact to have been proved beyond reasonable doubt, the issue is settled and the estoppel should apply.
Punko illustrates the narrowness of issue estoppel. Deschamps J did comment on how the doctrine of abuse of process could come into play if the prosecution's conduct were to be found to be "sufficiently egregious" [21]. In commenting on Mahalingan I noted that abuse of process can be of more use than issue estoppel in criminal law, if only the courts will get to grips with giving it meaning instead of dismissing it as something too vague.
Monday, July 16, 2012
Appellate error and wit
In the spirit of helpfulness ...
Don't rely on what our Court of Appeal said in Tutu v R [2012] NZCA 294 (5 July 2012) about there being a right to elect trial by jury on charges of common assault and assault on a constable in the execution of duty [19]. Section 43 of the Summary Offences Act 1981 removes that right.
For an insight into appellate advocacy and bench-bar exchanges, with occasional flashes of wit, in the High Court of Australia, see the perhaps rather irreverently-named http://shitjudgessay.tumblr.com .
Association with criminal groups
Some comments of general interest on criminal organisations or what are sometimes called organised criminal enterprises or organised criminal groups, were made by the Supreme Court of Canada in R v Venneri, 2012 SCC 33 (6 July 2012).
"[40] ... focus on the goal of the legislation, which is to identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members. All evidence relevant to this determination must be considered in applying the definition of "criminal organization" adopted by Parliament. Groups of individuals that operate on an ad hoc basis with little or no organization cannot be said to pose the type of increased risk contemplated by the regime.
"[41] Courts must not limit the scope of the provision to the stereotypical model of organized crime ― that is, to the highly sophisticated, hierarchical and monopolistic model. Some criminal entities that do not fit the conventional paradigm of organized crime may nonetheless, on account of their cohesiveness and endurance, pose the type of heightened threat contemplated by the legislative scheme."
Deciding whether there is a criminal organisation or an organised criminal group is a preliminary step. Liability for an offence depends on what conduct by a defendant is proscribed in relation to the organisation or group. Canada has defined several such offences, which broadly involve committing offences for the benefit of, or at the direction of, or in association with the organisation, or being a member of such an organisation and instructing any person to commit a qualifying offence for the benefit of the organisation. Also included are offences of participation in or contributing to the activity of the organisation with the purpose of enhancing the ability of the organisation to commit a relevant offence.
In New Zealand we have the offence of participation in an organised criminal group, if – again broadly - the defendant knows that his conduct contributes to achieving an objective of the group or to the occurrence of any criminal activity, or is reckless as to that contribution. The defendant need not share the objectives of the group.
It is not necessary that the organisation or group has actually committed any substantive offence, and contributing to achieving the objective of the group may not necessarily involve inciting or any other form of secondary liability.
Venneri highlights the point that associating with the organisation can occur through the defendant's offending and his membership is not required. So where the defendant supplied cocaine to a member of a criminal organisation, knowing that it was involved in drug trafficking, he was operating in association with the organisation, there was a sufficient nexus between the organisation and the defendant's supply of the drug.
Monday, July 02, 2012
Law reform by stealth
Search on suspicion
The Search and Surveillance Act 2012, s 6 (not yet in force) will allow a search warrant to be issued on suspicion that a relevant offence has been committed, is being committed, or will be committed. This suspicion must be on reasonable grounds.
The reasonable grounds requirement looks like a safeguard. But the current law requires reasonable grounds for believing that a relevant offence has been committed or will be committed: s 198 of the Summary Proceedings Act 1957. The higher threshold of belief in s 198 is replaced by suspicion in s 6.
Certainly s 198 is not perfect. The new law improves it by referring to offences that are being committed. There is also a complexity in s 198 because it includes reasonable grounds for believing that a relevant offence is suspected of having been committed. But that has not been the subject of careful judicial analysis, and the case law has focused on the difference between belief and suspicion that an offence has been committed. In the leading case, R v Sanders [1994] 3 NZLR 450, (1994) 12 CRNZ 12 (CA) the universal requirement of s 198 was held to be belief on reasonable grounds both in relation to the offence and to the finding of the evidence.
Both s 6 and s 198 require reasonable grounds to believe that evidence of the relevant offending will be found at the place to be searched.
The Law Commission recommended that the threshold of reasonable grounds for belief should apply both to the offending and to the finding of evidence. In NZLC R97 (2007) "Search and Surveillance Powers" the Commission said (Recommendation 3.1):
The Search and Surveillance Bill was so extensive and contained so many controversial measures that submissions do not seem to have focused on what has become s 6. I didn't notice it myself. Either everyone thought it was alright, or everyone overlooked it. There is no mention of it in the minority views in the Justice and Electoral Committee's report on the Bill.
The courts certainly think the distinction between reasonable grounds to believe and reasonable grounds to suspect is significant. See Collins v R [2010] NZSC 3 at [2]. In Britten v R [2012] NZCA 81 at [15], Priestley J for the Court cited R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [213]:
at p 461)."
The distinction is important too where there are powers of search without warrant. For example s 18(2) of the Misuse of Drugs Act 1975 permits warrantless search where there are reasonable grounds for believing in both the occurrence of a relevant offence and the presence of evidence. However s 20 of the Search and Surveillance Act 2012 replaces that with a power to search without warrant where there are reasonable grounds to suspect the commission of a relevant offence. (I note in passing that it is strange, given the opportunity to improve the law, that s 20 retains the rather technical and unrealistic requirements of s 18(2) as to identity of drug, particularly in view of the difficulty that they had caused the prosecution in Hill v Attorney-General (1990) 6 CRNZ 219 (CA)). The significance of the high threshold for warrantless search was emphasised in Hill by Richardson J at p 222:
We now seem to be intent upon eroding this general principle of requiring a belief, and a reasonable belief at that. Does our legislature's eagerness to grant powers to the police really reflect New Zealanders' wishes? Recent high profile searches have arguably given fresh life to Sir Thaddeus's reflections. We should reconsider this issue.
[Update] After I posted the above comments a colleague drew my attention to a recently published New Zealand Law Society Seminar Paper on the Search and Surveillance Act. There, the authors review the changes made to the grounds for issuing search warrants, in particular under s 6, and they conclude that the provision is balanced:
It doesn't surprise me that this was written by two prosecutors. They wrongly suggest that the belief as to the existence of the evidence is a protection of human rights and they overlook the erosion of the same rights created by the "[not] overly high factual foundation" of suspicion. It is easy to see that the belief in the presence of the evidence at a specified location is readily established: for example, if a reliable witness saw items being taken into a stated address, the reasonable grounds to believe they were there would be made out. That would say nothing about the requirement of the items being evidence of an offence, which is, under s 6, easily met by other information that gives rise to a suspicion of criminal activity. It is this element that protects - or should protect - reasonable privacy expectations.
It is fair to expect confirmation of my assertion that reasonable grounds to believe that a specified offence has been committed are required by s 198. In Rural Timber Ltd v Hughes [1989] 3 NZLR 178 (CA) the Court included in its description of the effect of s 198 the following:
And the form prescribed for search warrants, Form 50 in Schedule 1 to the Summary Proceedings Act 1957 materially as to paragraph (b) states:
"To every constable ... I am satisfied ... that there is reasonable ground for believing that there is in [the specified place, specified things] ... which there is reasonable ground to believe will be evidence as to the commission of an offence of [specified] ... ."
This applies the standard of reasonable grounds to believe to both the presence of the evidence in the specified place and to the link between it and the commission of a relevant offence.
A search authorised on lesser grounds, such as suspicion that a relevant offence has been committed and that the thing searched for will be evidence of that offence, will be a limitation on the right to be free from unreasonable search: s 21 New Zealand Bill of Rights Act 1990 (BORA).
Yet, on 12 June 2009 the Crown Law Office advised the Attorney-General that the search powers in what was then the Search and Surveillance Bill (now enacted, including s 6) did not give rise to unreasonable search and seizure in terms of s 21 of BORA. That ignores the restriction of the meaning of unreasonable search that is required for the new law to be accommodated. Unreasonable search will no longer include searches based on grounds that only amount to suspicion. The advice did not specifically address the terms of what is now s 6.
The Law Commission advised the Justice and Electoral Committee, which reported to Parliament on the Search and Surveillance Bill, that what is now s 6 does not substantively change the grounds for issuing a search warrant. (See the Interim Report on the Search and Surveillance Bill 45-1, p 10.) But s 6 is inconsistent with the Law Commission's Recommendation 3.1 quoted above which in turn is consistent with s 198. Plainly the point was overlooked, as there was so much in the Bill requiring consideration.
Thursday, June 21, 2012
What are the mental elements of dangerous driving?
The appellant submitted that the judge had steered the jury away from what in the context of the trial was conviction on the lesser offences. More serious than dangerous driving causing death were the offences on which he had been convicted, culpable driving causing death. The judge, said the appellant, had given the jury the impression that dangerous driving causing death was too trivial an offence to reflect his culpability, as it didn't even require criminal negligence. In diminishing the seriousness of dangerous driving (here, the conviction sought by the defendant) the judge may have conveyed to the jury that the more serious offence of culpable driving could more easily be committed.
You can see that while the judge had "not been wrong" to direct the jury that criminal negligence did not have to be proved for dangerous driving, at the same time a direction that criminal negligence was required would also have been correct in the circumstances. Such negligence would be sufficient, albeit not necessary for liability. The majority should have held that the judge was wrong in the context of the evidence. The minority, Heydon and Bell JJ, would have allowed the appeal on the grounds that this had been a misdirection which had created a substantial miscarriage of justice because the defendant may have been deprived of a more favourable verdict. They substantially agreed with the majority on the elements of dangerous driving.
When a court asks whether the driving in question demonstrated a marked departure from the standard of care that a reasonable person would observe in all the circumstances (R v Roy, 2012 SCC 26, discussed here on 15 June 2012), it is focusing on one sort of dangerousness: that which is accompanied by negligence. Usually examples of dangerous driving will involve some degree of negligence, above a minimum level (marked departure from the reasonable person's standard of care), and this can include even momentary inattention in circumstances where particular care and attention are required (King at [46]). However negligence is not an element of dangerous driving (Bell J [94]), just as (this is me now, not Bell J) stabbing is not an element of murder. But just as in the circumstances of a given case stabbing may have to be proved to secure a conviction for murder, so too negligence may have to be proved to secure a conviction for dangerous driving.
It is inevitable that jurors will have to assess the driving in the instant case against an imagined scale of qualities of driving. Somewhere on the scale careless driving becomes dangerous driving, and somewhere else on the scale dangerous driving becomes a more serious offence. The statutory context is always important. The extent to which the defendant departed from the objective standard required by the law for all drivers has to be assessed (Bell J at [74]). It is of no use to tell jurors that the defendant's driving must be such as to "merit criminal punishment" (Bell J [74], Heydon J [68]) because the criterion for guilt should not be left to jurors but rather is for the law to lay down. The criterion is whether the manner of driving gave rise to potential danger in a real sense to a person in the vicinity (French CJ, Crennan and Kiefel JJ at [46], applying Barwick CJ in McBride v The Queen [1966] HCA 22, (1966) 115 CLR 44). Plainly, in assessing responsibility for dangerous driving it is necessary to compare the level of danger to that required for liability for comparable offences. This does not mean that comparison with civil law negligence is useful: Bell J at [102].
Bell J stated [92] the mens rea requirement for dangerous driving as being confined to "the intention to do the acts involved in driving". She said that liability is subject to an objective test, citing the old case R v Gosney [1971] 2 QB 674 at 679. But in Gosney D 's conviction was quashed because she had made the same mistake as a reasonable driver would have made, and the Court of Appeal held that dangerous driving was not an offence of strict liability (for this point I rely on my 1978 Fourth Edition of Smith and Hogan, Criminal Law, pp 88-89). Bell J's dictum on mens rea is difficult to reconcile with negligence being a sufficient but not a necessary condition for liability.
By comparison, the Supreme Court of Canada required in Roy, above, mens rea elements of either an unreasonable failure to recognise a risk of the required kind or an awareness of the actual risk created by the driving and a deliberate running of that risk. The culpability or fault requirement inherent in the notion of mens rea is generally said to consist of either intention or recklessness as to the essential factual elements of an offence. But the meaning of intention in criminal law is context-dependent, sometimes extending to consequences and sometimes not.
Since we are not allowed to include criminally negligent failure to recognise danger as an element of the offence, we must slip it in as a relevant consequence under intention. The mens rea elements of dangerous driving here would therefore be: either intention to drive with knowledge of the danger created by the manner of driving, or intention to drive accompanied by a failure to appreciate the danger that a reasonable person would recognise as being created by the manner of driving.
Friday, June 15, 2012
Responsibility for dangerous driving
The offence of dangerous driving is carefully analysed in R v Roy, 2012 SCC 26 (1 June 2012), where the appellant had been convicted of dangerous driving causing death. He had pulled out from a stop sign into the path of an oncoming vehicle. There was thickening fog and visibility was poor.
Cromwell J, for the Court, observed [1]:
So the Court's attention in Roy was on the sensitive issue of actus reus. It is not, said the Court, the consequences (collision and death) that determine whether there was an actus reus, but the quality of the driving itself [34]:
The Court in Roy was concerned to avoid extending the reach of the criminal law beyond what was appropriate in view of the law's purposes. It appropriately set a high level for the required harm (the actus reus) but then needlessly constrained the process of inferring the existence of the mental requirements for criminal responsibility. In Roy the trial judge had inferred mens rea from the fact that the driving was objectively dangerous, and the Supreme Court held that that was wrong [44]. Given the thickening fog, the stop sign, the poor visibility and the oncoming traffic, the Court concluded [51]:
Saturday, June 09, 2012
Criminal responsibility, insanity, diminished responsibility and the role of the common law
The recent Supreme Court of Canada case Maybin v R, 2010 SCC 24 noted here, highlighted the moral basis for attribution of a sufficient causal connection between D's acts and the harm. The Privy Council has recently referred to the moral dimension of diminished responsibility: Daniel v The State (Trinidad and Tobago) [2012] UKPC 15 at [37]-[38].
Parliament tends to limit defences and to create new offences. It seems to be engaged in extending the scope of acts for which a person can be held criminally responsible. Whether that legislative activity really reflects community perceptions of what is right can be a controversial question. But the important point is that if the courts are perceived by Parliament to be going wrong, legislation can correct that error. Whatever the common law might say, it is trumped by legislation. This is why courts should not be shy about developing the common law.
Thursday, May 31, 2012
Ascertainable law
It doesn't matter how sure we now are of what the common law used to be, if it was uncertain when a person did acts that are now alleged to have been contrary to that law.
In PGA v The Queen [2012] HCA 21 (30 May 2012) the issue was whether in 1963 in South Australia, where rape was a common law crime, a wife could withdraw her consent to sexual intercourse with her husband.
To find that out, one would think that it would be sufficient to consult the case law of the time. Were husbands charged with raping their wives? Did judges say that that was rape? What did legal scholars think? If a man went to his lawyer then and asked, what would he have been told?
According to the majority in PGA, a lawyer back then would have concluded that a wife could withdraw her consent to sexual intercourse with her husband. This view would have been reached by considering the fact that marriage is not permanent [59], that marriage is a consensual contract which could be breached by wilful and persistent refusal of sexual relations – implying that some refusal is possible [60], that relevant legislation required cohabitation but did not require matrimonial intercourse as an order to that effect would be unenforceable [60], that a wife had a distinct legal personality from her husband, particularly as to property rights, and this undermined any idea of her being her husband's property [61], and that women had the vote and had recognised rights to commercial and professional lives [60]-[61].
These considerations, according to the majority reasoning, would have led a lawyer in 1963 to advise that a husband could be guilty of raping his wife.
It is for judges or the legislature to change the common law. The majority review at [19]-[24] the meaning of the term "the common law", emphasising how judicial precedents may diminish in value over time. Old decisions can become obsolete and inoperative.
But, one would have thought, it is for judges to say when that obsolescence and inoperativeness has led to a change in the common law, and to declare the new law for the future. The majority in PGA have made that declaration retrospectively. One does not have to say that they are wrong in deciding that a judge in 1963 would have made the same declaration, to recognise the injustice from the point of view of the defendant who now faces historical charges including two counts of rape of his then wife.
Our natural aversion to rape may cloud perception of this injustice. If it was reasonably likely that in 1963 a husband would have been advised that as far as the law was concerned he was entitled to sexual intercourse with his wife because there was no judicial decision to the contrary, the new law was not ascertainable. A court that changed the law, or at least made it ascertainable, should only do so prospectively, acquitting this defendant but making the law clear from then on. Enacted law is "law" if properly enacted, but if it is not reasonably ascertainable it will be unenforceable, whereas common law must be ascertainable in order to be "law". If enacted criminal law is not ascertainable a prosecution should be stayed: Christian v R (The Pitcairn Islands) [2006] UKPC 47 at [24] (not cited in PGA):
"Their Lordships would accept that the fact that a law had not been published and could not reasonably have been known to exist may be a ground for staying a prosecution for contravention of that law as an abuse of process... .",
The ECtHR has upheld convictions where retrospective change in the law has been reasonably foreseeable, as in the removal of the marital exemption defence to rape, upholding R v R [1992] 1 AC 599: SW and CR v UK (1996) 21 E.H.R.R. 363. It may be that with increasing focus on the idea of the rule of law this tolerance of injustice to the defendant whose prosecution marked the change in the law will diminish. The traditional view that judges declare the common law as it has been from time immemorial is now regarded as an outdated legal fiction.
Just as reasonable minds may differ on the application of known law to the facts of a case, so too may reasonable minds differ over how and when the common law may change. An obligation to obey law that has not yet been declared is a form of "common law" not within the definitions recognised by the majority in PGA. It is unjust.
There is plenty of authority for this, as Heydon and Bell JJ demonstrate in their dissenting judgments. A helpful summary from the House of Lords is in R v Rimmington [2005] UKHL 63 especially at [33] which concludes:
"There are two guiding principles: no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done. If the ambit of a common law offence is to be enlarged, it "must be done step by step on a case by case basis and not with one large leap": R v Clark (Mark) [2003] EWCA Crim 991, [2003] 2 Cr App R 363, para 13."
There is a risk of cherry-picking authorities in this sort of argument, but I recommend Rogers v Tennessee, 532 U.S. 451 (2001) as an illustration of the upholding of a common law change but only where there had been a pervasive change in the law that should have put the defendant on notice that the law was clearly going to change. The change was not unfair or arbitrary. Scalia J dissented on the grounds that restrictions on legislative retrospective change should also apply to retrospective common law change. But even on the majority view there is a requirement of ascertainability before a defendant is bound by future decisions changing the common law.
Anyway, this interesting case raises questions about who defines the common law, is it just social mores or does it have to be declared by judges, whether retrospective effect should be more acceptable for common law offences than for legislated offences, and the extent to which social and legislative changes in some areas can influence assumptions about the common law in other areas. In New Zealand we have only one common law offence - some forms of contempt of court - but we do have common law defences. It was not until as recently as 1986 that legislation removed the spousal immunity defence to rape, which implies that it did exist at common law (at least in a form that had been modified by earlier legislation) until then. Some people think we are behind Australia in our development, but - as one who can remember 1963 and the grassy knoll quite clearly - I don't think that in 1986 we were 23 years behind.
Saturday, May 26, 2012
What is a verdict?
Friday, May 25, 2012
Too late! Or is it ...?
Tuesday, May 22, 2012
Causing moral responsibility
Friday, May 11, 2012
Suppressing contempt
Dicta in this case [68]-[72] on the right to a fair trial are significant too. The defendants in the criminal case had the right to a fair trial and the court used its inherent power to regulate its procedures for the ultimate objective of securing fairness. However Mr Siemer, who was not subject to criminal proceedings but only to the "neither criminal nor civil" proceedings for contempt, did not have the protection of the rights given by the New Zealand Bill of Rights Act 1990 to people who are charged with offences [95]. But he did have the right to justice, enjoyed by everyone pursuant to s 27 of the Bill of Rights, which applies the rules of natural justice to the determination of his rights, obligations or interests.
Thursday, April 19, 2012
My 500th posting: Probative value and independent evidence
For example, consider these facts on a charge of murder:
In the circumstances of this appeal it was unanimously held that there was no improper prejudice because the jury had been carefully directed on how they should reason. Determining whether there is improper prejudice requires having regard to the whole of the evidence [30].
The question I started with did not need to be answered in this case because the appeal turned on whether there was illegitimate prejudice, but Heydon J considered it in some detail [41]-[65], especially in relation to whether giving evidence of one way of expressing the scientific results rendered an alternative and equivalent way redundant and inadmissible.
Evidence about the matching of samples is like all other evidence: it raises the question, given the existence of this evidence, what is the probability that the defendant is guilty? This probability of guilt is the ultimate issue and involves consideration of all the admissible evidence in the case that the fact-finder accepts as true. The probative value of an item of evidence is its tendency to prove an issue, and where that is the ultimate issue, the question arises as to whether probative value should be assessed by considering the item of evidence in isolation, or whether its probative value should be considered in the context of other evidence.
Logicians would be isolationists but with some qualification. Independent evidence is irrelevant but dependent evidence is relevant to the probative value of an item of evidence, as is contextual evidence.
Usually evidence of the sort of match in Aytugrul would be given in terms such as: "whatever the probability that the defendant is guilty based on the other evidence in the case, this evidence increases that probability by 1600 times." Sometimes the same thing might be said in words rather than numbers, for example by saying the evidence strongly supports the proposition that the defendant is guilty (see [32]).
I am assuming that the ratio would result in a figure of 1600, although that is not clear. There might (here I am not referring to the particular facts of this case) be innocent explanations for the evidence of a match, even if the defendant was guilty: the test result might have been a false positive so that in reality it was someone else's hair, or the defendant's hair might have been transferred there when the police had custody of the body, or there might have been an error in handling scene exhibits and a mix-up between what was found on the victim and medical samples from the defendant. The probability of those sorts of errors, although normally small (but if larger they could make the test result irrelevant - see my concluding comment below), should be taken into account. In that sense some other evidence in the case could be relevant to the probative value of the evidence of a match. But that other evidence would not be independent of the existence of the hair.
Independent evidence, such as evidence of the time at which the defendant and the victim were together, and the time of death, does not affect the probative value of the evidence of the match between the hair and the defendant. It does not affect the numerator or the denominator of the likelihood ratio. Those are based on assumptions, or "givens": that the prosecution hypothesis of guilt is true, and that the defence hypothesis of innocence is true.
I infer from the extract from Dr Buckleton's evidence at [16], where he mentioned the lesser of two evils, that he would prefer not to put his evidence as either a random occurrence ratio or an exclusion percentage. The reference in the judge's summing up to Dr Buckleton's evidence of expecting the occurrence of that sort of hair in the relevant population of innocent people as between one in 50 people and one in 100 or less, seems to be a reference to the denominator of the likelihood ratio being between 0.01 and 0.02. Dr Buckleton usually gives his results as a likelihood ratio following the Bayesian approach, and he supports the "Bayes and the Law" site. Plainly there was a discrepancy between the experts in Aytugrul as to the statistical values. In any event, in this case Dr Buckleton said that the test results did not indicate a match: Aytugrul v R [2010] NSWCCA 272 at [55]. The implication of that evidence seems to have been lost in this case.
Significantly, the High Court recognised that the question of how this sort of evidence should be expressed is a question of psychology upon which the Court would need further evidence before making a legal rule about that [22]-[24]. (I recommend to anyone interested in this sort of thing the Nobel laureate psychologist Daniel Kahneman's "Thinking, Fast and Slow".) The Court did not say that evidence of this kind must be given in the form of a likelihood ratio, and it specifically did not lay down a rule that it could never be given as an exclusion percentage [21].
Note the difference between the probative value of evidence and the effect of its combination with other evidence in the case on the ultimate probability of guilt. In BBH v R, discussed here on 31 March 2012, it was this latter combination that was relevant in considering the Pfennig requirement.
There is a need for experts to agree on how to express their conclusions when giving evidence, and for legal professionals and judges to become familiar with correct reasoning with probabilities. In the NSWCCA in this case (see above link) McLellan CJ at CL, whose judgment is well worth reading for its references to specialist articles - including a paper by Kahneman - on the effects on juries of different ways of expressing statistical results, held that the trial was unfair, notwithstanding that the verdict was, on the evidence, not unreasonable, because the jury may have been led to think that the exclusion percentage was the same as the percentage likelihood of the defendant being guilty. The other judges in that court regarded the statistical evidence as strongly supportive of guilt and that was sufficient, there being no identifiable unfair prejudice to the defendant (Simpson J at [193]-[195]).
Indeed, as Bayesians know, if the other evidence in the case only established guilt to a probability of 0.1, the hair match evidence would increase that to 0.99. The same is true without any other evidence, but obviously there have to be other proven facts to give the match evidence context in relation to the offence charged. It is also appropriate to talk about groups of facts which together have probative value in relation to an issue, but their individual probative value is different from their collective probative value. Again, context is relevant, and it may be inappropriate to consider the probative value of a fact in isolation.
So what would have been unfair prejudice here? If the jury had not found as a fact that the hair had the DNA profile that the prosecution claimed it had, the other evidence about the frequency of a match would be irrelevant. To find as a fact that the hair had the alleged DNA profile, the jury would have to be satisfied about that to the standard of the balance of probabilities. Most subsidiary facts - that is, facts that are not elements of the relevant offence - only need to be proved to that standard, although there is an argument, popular - to the point of being law - in Australia, that critical facts have to be proved beyond reasonable doubt. Be that as it may, unfair prejudice would have existed if the match frequency evidence could have distracted the jury from its proper assessment of whether the hair did indeed have the DNA profile claimed for it.
Friday, April 06, 2012
The transcendent civility of verbal eunuchs
The case with the most amusing facts in a long time is Doré v Barreau du Québec, 2012 SCC 12 (22 March 2012). A judge was rude to counsel and counsel was rude to the judge. Both received reprimands from their respective disciplinary bodies.
The odd thing about this case is that whereas the judge was rude to counsel in open court, counsel was only rude to the judge in a private letter to him.
Another thing, not quite "odd" but at least strange, is that after setting up a fine sort of conceptual structure for the review of administrative decisions when Charter rights are involved, the Court's application of it to the facts is shrouded in mystery. The answer pops out, but because the private nature of counsel's letter was not taken into account we can't be sure why it didn't go the other way.
Valuable aspects of the judgment concern the duties of judges and of counsel as far as behaviour in court is concerned:
Judges must show respect for officers of the court (counsel), they must not be impatient and they have a duty to listen calmly to the parties and to counsel. They must respect the dignity of every individual who argues a case. Comments must not be immoderate. [14]
Counsel are bound by rules of professional conduct, and these include a requirement to behave respectfully and not undermine the processes of the court or the dignity of the judiciary. But at the same time counsel have rights of free speech, and a role in ensuring the accountability of the judiciary [64], and the protected tenure enjoyed by judges increases the threshold for the lawyers' expressive rights [65]. The balance between criticism and upholding dignity is fact-dependent and a discretionary administrative exercise. Criticism is measured against "the public's reasonable expectations of a lawyer's professionalism" [69] and must not overstep 'the generally accepted norms of moderation and dignity" [70].
The Supreme Court agreed with the conclusion of the disciplinary tribunal that had censured counsel.
In reality, the policy of discouraging a flood of vigorous personal correspondence between bar and bench may well have been the elephant in the courtroom.
Saturday, March 31, 2012
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 .