Risks, numbers and criminal responsibility

In R v Mabior, 2012 SCC 47 (5 October 2012) the Supreme Court of Canada playfully leaves us to calculate what a "realistic possibility" means in terms of probabilities, in the context of transmission of HIV virus by vaginal sexual intercourse.

Courts are inclined to put things in words, not numbers. This case explains that the phrase "significant risk of serious bodily harm" in this context means "a realistic possibility of transmission of HIV".

The relevant legislation, s 265(3) Criminal Code RSC 1985, C-46, uses the word "fraud": a complainant does not consent if he or she does not resist or submits by reason of fraud. Here, the defendant did not disclose that he had HIV when he obtained agreement to sexual intercourse. His viral load was low, and in he used a condom with one of the four complainants.

The element of fraud had been interpreted as requiring that the defendant dishonestly deprived the complainant of knowledge about a significant risk of serious bodily harm. Now this risk is explained as a realistic possibility of transmission of HIV.

For the New Zealand law (inaccurately referred to at [50]-[54] of Mabior) see s 128A(7) Crimes Act 1961, which provides that consent is not given by a person who is "mistaken" about the nature and quality of an act.

I expect that this NZ provision, introduced in 2005, will be interpreted to mean that a mistake, in a context like that in Mabior, is a failure to recognise a realistic possibility of transmission of HIV.

McLachlan CJ for the Court stressed that what facts give rise to a realistic possibility of HIV transmission will vary as research increases knowledge. The risk assessments may change. But the evidence in the case disclosed the current understanding of what the relevant risks are.

Broadly, and converting the figures given in the judgment [94]-[101], the evidence was that the probability of transmission of HIV infection during unprotected sexual intercourse may be as high as 0.008 or as low as 0.0005. That is, 8 in 1000, or 5 in 10,000. If a condom is used, the risk reduction is 80%, so at the highest the probability of transmission would be 0.0016. If therapy had reduced the viral load, as it had in this case, to a low level, the risk of transmission may be reduced by roughly 92%, so that if a condom is used the probability of transmission would then be 0.000128. If a condom is not used but the viral load is low, the probability of transmission is 0.00064.

I have just used rough figures as ranges were given for the risk of transmission in unprotected intercourse and for the effect of therapy. But the result of the appeals was that reduced viral load plus use of a condom resulted in a risk of transmission of HIV that was less than "a realistic possibility", whereas reduced viral load but without use of a condom resulted in a risk of HIV transmission that was "a realistic possibility".

That is, "a realistic possibility" is greater than a probability of 0.0001, but a probability of 0.0006 is "a realistic possibility" of HIV transmission.

The context is important: where the consequences are serious the acceptable risk may be lower. If we suppose that the consequences in the HIV transmission context are serious (this may change as therapies develop) we can conclude that the Court is regarding an appropriately low risk of transmission for the purposes of attributing criminal responsibility as one that carries a probability of 0.0006.

How does that compare to life's other risks of death? Well, a few second's Googling indicates that in the UK the average risk of death in any one year from injury or poisoning is 1 in 3137, or a probability of 0.0003. The risk of dying in a road accident in the UK is 1 in 16,800, or a probability of 0.00006. And for cancer death it is 1 in 387, or probability 0.003.

So in Mabior a risk that might have been about ten times the risk of dying in a road accident amounted to a realistic possibility of transmission of HIV. Or about one fifth the risk of dying of cancer.

And, while we are out on this limb, (or "out where the buses don't run", as Kinky Friedman would say), we could use this sort of data as an indication of the level of risk of serious harm that the law considers appropriate for attributing criminal responsibility. Then we should wonder about the probability of wrongful conviction that is sufficient to support a verdict of not guilty. Does it vary according to the harm threatened or caused by the offending? Or is all wrongful conviction equally repugnant?

Don't look at me. How should I know?

For discussion of the meaning of "beyond reasonable doubt" see R v Wanhalla (noted here 25 August 2006, R v JHS, noted here 1 June 2008, and R v Layton, noted here 24 July 2009).

No substitute for money

The Privy Council in Hamilton v R (Jamaica) [2012] UKPC 31 (16 August 2012) gives a useful little reminder on how a court will exercise its discretion to grant an extension of time for filing an appeal.

The judgment is worth reading for its reference to difficulties in getting legal representation when legal aid is either unavailable or highly restricted, particularly in Caribbean states.

The exercise of the discretion to grant an extension of time is described here:

"The circumstances that contribute to the problem of delay in the case of criminal appeals that come before the Board from the Caribbean are exceptional, for all the reasons that have been outlined above. But the question for the Board is no different. In these cases, too, the overriding consideration will be whether it is in the interests of justice that the time limit should be extended. Weight will always be given to the merits of the appeal and to the severity of the sentence. The stronger the case appears to be that the appellant may have suffered a serious miscarriage of justice, the less likely it will be that the application will be rejected on the ground that it is out of time. The Board will also be sympathetic to the problems faced by death sentence prisoners, and those in non-capital cases who have been sentenced to very long periods of imprisonment, who have to rely on the services of those who provide legal services pro bono. Those who provide such services free of charge have other demands on their time. So, while they will be expected to progress their cases as quickly as possible, it would be unreasonable to expect them to adhere to the same exacting standards as are expected of those who provide professional services for remuneration."

There are potentially insoluble problems for people serving sentences that are not particularly long and which may well be completely served by the time legal assistance for an appeal against conviction and sentence is obtained. The administrators of legal aid services may be reluctant to grant aid if a sentence is not long. Lawyers may be reluctant to accept instructions on legal aid if remuneration is low, particularly as the risk of being accused of negligence or worse is ever-present. There is no substitute for money when it comes to making the legal system work.

Morality and the scope of criminal liability

Manslaughter by dangerous act, or by an omission to perform a legal duty, was considered by the High Court of Australia in Burns v The Queen [2012] HCA 35 (14 September 2012). The death occurred after consumption of methadone, and the defendant (appellant) could have been liable for supplying the drug, for administering the drug, or for failing to render assistance to the victim in circumstances which gave rise to a duty of care. It was not possible to say why the jury had convicted the defendant. In the High Court the Crown conceded that the defendant could not be liable on the basis of supply of the drug. The Court unanimously held there was no basis in the facts for conviction for breach of a duty of care, and the majority (Heydon J dissenting) held that the facts did not exclude the possibility that the victim administered the drug to himself. The conviction was quashed and an acquittal entered.

The case is of interest for its illustration of the difference between moral and legal duties. While most people might think that a person who supplied an unlawful and dangerous drug to another owed a duty of care to that person to do what was reasonable in the interests of safety, there are difficulties in establishing a legal duty to do the same.

French CJ referred [22] to the "taxonomy" of the duties of care that may support a charge of manslaughter in cases like this: where a statute imposes a duty, where the duty arises from a certain status relationship, where the duty arises from contract, and where one person voluntarily assumes the care of another, secluding that other and preventing third persons from rendering aid. There may also be a duty of care where the defendant has caused a sequence of events which gave rise to a risk of injury.

Here there was [46] no statutory duty, no status relationship, no contract. On the facts the defendant had not assumed responsibility for care of the victim and had not secluded him so as to prevent others rendering assistance. As to creating a causative sequence of events giving rise to risk of injury, on the facts it was possible that the victim had injected himself with the drug [47] and he may even have rebuffed a suggestion that an ambulance should be called [48].

The joint judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ pointed [106] to difficulties with the proposition that those who unlawfully supply dangerous drugs have a duty to people they supply. What would discharge the duty of care? Supplying clean needles and syringes? Supplying information about levels of safe use? Ordinarily the supplier will have no control over how the recipient uses the drug. Is the duty (as was accepted in the appeal court below) confined to use of the drug in the supplier's presence? This, said the joint judgment, looks like imposing a duty because "it is an affront to morality that the supplier of a prohibited drug should not bear responsibility for the callous disregard for the life of the drug user." The absence of control counted against the imposition of a duty of care, and [107]

"... courts must be circumspect in identifying categories of relations that give rise to a previously unrecognised legal obligation to act [footnote: See, eg, R v Sinclair, Johnson and Smith unreported, England and Wales Court of Appeal (Criminal Division), 21 August 1998; B Hogan, "Omissions and the duty myth", in Smith (ed), Criminal Law: Essays in Honour of J C Smith, (1987) 85 at 87]."

So it was a matter for the legislature, not the courts, to develop the law on the liability of drug suppliers for harm to users ([108], Heydon J agreeing at [131]).

I should add that there is a useful discussion of liability for omissions by Andrew Ashworth QC, "Public Duties and Criminal Omissions: Some Unresolved Questions", available at the Association of Commonwealth Criminal Lawyers website. For legislative developments in New Zealand, see Crimes Act 1961, s 150A and the sections referred to therein.

Another decision of the High Court of Australia touching on the scope of criminal responsibility was delivered the same day: Likiardopoulos v The Queen [2012] HCA 37 (14 September 2012). It is noteworthy for these points:

• French CJ was careful to distance himself from any (obiter) suggestion that the decision to prosecute is never reviewable.
  
• A person can be a secondary party to a greater offence even though the principal offender was convicted of a lesser offence. A lesser conviction does not of itself provide a shield for another person. If the prosecution can show that the principal did commit the greater offence, the defendant could be a party to that. The principal is not in jeopardy of conviction for the greater offence.
  
• The charging of the defendant as a secondary party to the commission of a more serious offence than that for which the principal was convicted does not of itself give rise to abuse of process or unfairness, especially where, as here, when the plea to the lesser offence was accepted there was insufficient evidence to charge the principal with the greater offence. The moral culpability of the secondary offender was, here, greater than that of the principal(s) in view of his being much older [joint judgment, 39].
  
• A revision of the law of complicity could result in too great a change – retrospective and adverse to the interests of defendants - for the courts to introduce and should be left to the legislature (Heydon J agreeing, [43]). The limit of secondary liability is set by the offence actually committed.
  

This last point was a response to the prosecution submission that liability of all secondary parties should be determined by their mens rea. That would mean that if the secondary party had the mens rea for murder, but murder could not be proved against the principal, the secondary party would be guilty of murder. The difference from this case is that the prosecution would not need to establish mens rea on the part of the principal offender. That would mean that even if the evidence was no stronger than it had been against the principal party when the plea to the lesser charge was accepted, the secondary party could still be convicted of murder. Should the secondary offender benefit from a fortuitous lack of evidence in relation to the principal offender, or should the same requirements of actus reus and mens rea apply to both principals and secondary parties? To what extent should the maxim actus non facit reum nisi mens sit rea apply – should the secondary party's guilty mind make the principal's act guilty in relation to the secondary party? Currently the law says there is only an actus reus if the principal has mens rea.

Judge-alone trials and reasons for verdicts

Today the High Court of Australia has held inadequate the reasons given at a judge alone trial for convicting the defendant (appellant): Douglass v The Queen [2012] HCA 34 (11 September 2012). Further, the High Court quashed the conviction and did not order a retrial. That was because the evidence was insufficient to prove the defendant's guilt beyond reasonable doubt.

It is a fundamental mistake to say that where a criminal case involves an accuser and a defendant who denies the accusation, it is a case of one person's word against another's. It is, instead and as usual, a case of whether the evidence is sufficient to prove guilt beyond reasonable doubt. If, as here, a judge says he prefers the complainant's evidence, that is not the same as saying he finds the complainant's evidence sufficient to prove guilt beyond reasonable doubt.

Reasons given by a judge for convicting a defendant must be sufficient to show an appellate court that the judge has correctly applied the law: R v Keyte [2000] SASC 382. For the same point over here, see Connell v Auckland City Council [1977] 1 NZLR 630, Chilwell J, R v McPherson [1982] 1 NZLR 650 (CA) per Somers J at 652, and R v Atkinson [1984] 2 NZLR 381 (CA) judgment of the Court delivered by Hardie Boys J at 383, emphasising the need to demonstrate that the judge has applied the correct standard of proof.

In Douglass there were some difficulties with the complainant's evidence: she initially denied that the offending had occurred, she was inconsistent as to the location at which it had occurred, and her accusations were obtained by leading questions. The judge had not explained why, despite these difficulties, he had found her evidence to be truthful and reliable. He did specify two reasons for accepting her evidence, but the High Court criticised these: he thought she was unlikely to have made up the accusations, but the High Court pointed out that she had described similar behaviour by another man so invention was not as unlikely as the judge had thought, and her firmness in cross-examination indicated truthfulness, but the High Court did not think that this necessarily followed.

The defendant had given evidence and had called a supporting witness, but the judge did not give reasons for rejecting that. The judge should have explained why the defence evidence did not raise a reasonable doubt.

There is a bit of obscurity in the High Court's judgment (only one judgment in this case - Heydon J not being on this bench) over truthfulness and reliability. This was not the sort of case where the complainant could have been mistaken over the identity of the alleged offender, or mistaken over the alleged acts. The Court used the term reliability to mean sufficient to prove the charge. The trial judge may have used the description of the complainant's evidence as "credible and reliable" as a way of saying it was truthful, but the High Court said [15] that accepting the evidence as true was not the same as accepting it as sufficient to prove the charge. On the facts of this case it is difficult to see why not. My impression is that the Court was really saying that the difficulties with the complainant's evidence meant that it lacked the necessary probative value to establish guilt beyond reasonable doubt.

The High Court took a provision in the relevant evidence legislation, to the effect that a warning is not required about the special need for caution in relation to the evidence of a child complainant, as an indication that child witnesses are not to be regarded as a special class of witness, and it rejected [44] a submission that it was appropriate to consider published research on the reliability of child complainants. This was because here the issue was the sufficiency of the complainant's evidence. But in view of the obscurity I mentioned above, it is not clear why the reliability of the complainant's evidence should not be assessed in the context of specialist research on factors affecting or not affecting the reliability of child witnesses. The issue was, after all, the reliability of the complainant "as an historian" [47].

Overwhelmed by prejudicial evidence

When is an error at trial insufficient to require an appeal court to quash a conviction?

The more the attention that is given to this question, the more difficult it is to answer. At least, that was the experience of appeal courts in the 2000s. Before then this question had gone largely unexamined, and appeals were decided with appellate courts deciding apparently intuitively whether miscarriages of justice were substantial enough to require the quashing of convictions.

I have considered this in discussing Weiss v The Queen [2005] HCA 81 on 16 January 2006, and see also the discussion of Grant v R (Jamaica) [2006] UKPC 2 on 20 January 2006. A difficulty was when should the appeal court act like a jury and consider the evidence and dismiss an appeal because despite the error at trial the evidence was sufficient to convict? See Bain v R (New Zealand) [2007] UKPC 33, discussed here on 11 May 2007.

The Weiss approach has been followed with minor adjustment in New Zealand: Matenga v R [2009] NZSC 18, discussed here on 9 July 2009.

An unattractive aspect of the Weiss approach is that it seemed to say that the appellate court may dismiss an appeal notwithstanding an error at trial if it considers that the evidence was sufficient to support a conviction. Obviously the ends (conviction of a person who is plainly guilty) cannot justify the means (never mind whether the trial was fair). To avoid that unpleasantness two requirements had to be met before a conviction could be upheld: the trial had to have been fair notwithstanding the error, and the evidence of guilt had to have been sufficient.

So, when does an error not affect the fairness of the trial? It is difficult to generalise without a definition of "fair trial". I tirelessly suggest one here.

Yesterday the High Court of Australia dealt with an appeal in which the errors at trial had been so substantial that it was unnecessary, indeed impossible, for the Court to address the sufficiency of the evidence: Patel v The Queen [2012] HCA 29 (24 August 2012). The appeal was allowed because no weight could be given to the verdict, the jury were overwhelmed by the prejudice created by the admission of evidence that, because of a change in the prosecution case, was inadmissible, and the proviso didn't apply: joint judgment of French CJ, Hayne, Kiefel and Bell JJ at [128]-[130]. Heydon J separately agreed, holding at [260] that there had been a departure from the requirements of a fair trial to such an extent that the court could not justly assess the strength of the case against the appellant, applying Gleeson CJ in Nudd v The Queen [2006] HCA 9, discussed here on 9 March 2006.

This seems to me to be a case where the unfairness was the rendering of the jury partial – that is, not impartial – through the introduction of evidence that would prejudice its judgment against the defendant.

Heydon J noted two difficult questions that did not have to be answered in this appeal [262]: to what extent should a judge disallow the introduction of evidence although no party objects to it, and when should a judge require the prosecution to provide particulars although they were not sought by the defence?

I suggest the answer to those is indicated by the meaning of a fair trial. But until judges get down to explaining what a fair trial means we are left to define it for ourselves.

I should add that in New Zealand we have revised the conviction appeal criterion by abolishing the proviso and defining miscarriage of justice to include errors that result in unfair trials: Criminal Procedure Act 2011, s 232 (not yet in force). Again, there is no definition of fair trial.

And now we are eight!

And that is 8 years of this site's existence.

It isn't really a blog in the sense of an invitation to readers to post comments. Instead it is an online casebook on criminal law. It now has commentary on over 500 cases from the leading appellate courts in New Zealand, Australia, Canada, the USA, the UK and the European Court of Human Rights.

My purpose is to promote scholarship and research in criminal law. For a given topic you can consult the Index which refers to the relevant cases and the dates on which commentary was posted. Or if you just want to know if there is commentary on a particular case, enter one word from its title in the search box on this page.

This site is not designed to make money, and there is no information here on how to contact me. It is just an attempt to show how interesting criminal law as a technical discipline can be. But it's not written anonymously because commentary needs to be responsible and readers should have an opportunity to assess the author's qualifications.

I have given the Blogger version of this site (http://www.nzcriminallaw.blogspot.com ) a title that now includes the word casebook; the mirror site retains its old title as I haven't figured out how to change it (http://www.donmathias.wordpress.com ).

When can one defendant rely on another defendant’s statement to the police?

If two defendants, A and B, are on trial together, when can A rely on part of B's statement to the police if B does not give evidence?

Broadly, once evidence is admissible it can be used for all purposes at trial unless there is a specific restriction: Hart v R [2010] NZSC 91 at [54]. Does s 27 of the Evidence Act 2006 provide for a restriction? Its first subsection says:

"Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but not against a co-defendant in the proceeding."

Does this prevent the defence "offering" it? ("Offer evidence" is defined inclusively and widely in s 4.) Plainly no, although this has been controversial. Difficulties have concerned the meaning of "against". The answer seems to be that which is given in Leslie-Whitu v R HC Rotorua CRI-2009-263-163, 5 October 2011, Woolford J (not available online): s 27 does not prevent A relying on B's statement, but the statement is hearsay in relation to A. Since the evidence in relation to A must be considered separately from that in relation to B in a joint trial, A must rely on the hearsay provisions to get B's statement admissible in his case. As hearsay the rule is that it would be inadmissible, but there are exceptions, the main one of which is s 18 of the Evidence Act 2006.

The criterion in s 18 when B is unavailable, as he would be if he chose not to give evidence, is that "the circumstances relating to the statement provide reasonable assurance that the statement is reliable". The "circumstances" are defined in s 16.

I don't know whether that is the best answer. It creates an uneven playing field in that to use B's statement A must overcome the "reasonable assurance" of reliability threshold in s 18, whereas the usual requirement for admissibility is relevance, s 7, which has a low threshold: Wi v R [2009] NZSC 121, mentioned here on 11 August 2012. If the prosecution can get the statement admitted under s 27 (overcoming any objections based on unreliability, s 28, oppression, s 29, and impropriety, s 30) then A should be able to use it too without further restriction.

I suggested in a New Zealand Law Society Seminar that arguably the admissibility of B's statement for A's case should be governed by the common law fairness considerations.

Yesterday the High Court of Australia touched upon this in a common law context: Baker v The Queen [2012] HCA 27 (15 August 2012). However here B's statement did not really exculpate A: see Heydon J at [70]-[76]. But basically the Court said, "Aw fieck orf moit" (I assume Australians all sound like Hughsey).

The case illustrates how the common law has diverged in various jurisdictions. Canada and England (see Baker at [54], [88]) have expanded the hearsay exceptions to permit use of B's statement by A if it is apparently reliable, but as the judgments in Baker show, there are difficulties in establishing reliability in this context.

I still think use of the hearsay exception here is inappropriate because it is only by chance that B's statement is hearsay – at least under our statutory definition of hearsay which does not include within it statements made previously by a witness (see the definition of "hearsay statement" in s 4). If B gives evidence he is a witness so it is not hearsay, whereas if he does not give evidence it is. Should the trial tactics of one party govern the admissibility of evidence for another? And if the prosecution can rely on B's exculpation of A and argue it is a lie demonstrating B's guile, why can't A rely on it and argue it is a glimpse of B's truthfulness?

The common law position is different because the definition of hearsay is not dependent on whether the maker of the statement, B, gives evidence. Baker remains of interest for its emphasis on the difficulties in applying a criterion of reliability.

Scholarly and incite-ful

A small but fascinating point of general interest arises in The Queen v Khazaal [2012] HCA 26 (10 August 2012). If a defendant has the evidential burden of showing an innocent purpose, can evidence of general good character be sufficient to meet that burden?

The defendant in Khazaal compiled articles from other authors, edited them with his own introduction and published them under a pseudonym as an electronic book. The book contained advocacy of violence, but Mr Khazaal had a statutory defence if his publication was not intended to facilitate assistance in a terrorist act (see [48] and [51] of the joint judgment). The evidential burden here means the burden of adducing or pointing to evidence that suggests a reasonable possibility that his purpose was innocent.

Mr Khazaal suggested that his purpose was scholarly and peaceful, and he relied partly on the book itself to meet his evidential burden. The High Court unanimously held that the evidence relied on was not inconsistent with the alleged purpose of facilitating violence (French CJ at [19], Gummow, Crennan and Bell JJ at [77], Heydon J at [110]). Mr Khazaal also relied on his past pursuit of lawful activities as a journalist and argued that the book was written in that vein, however there was insufficient evidence to support that connection [111].

So, more generally, when does evidence of good character tend to prove a matter in issue? The New Zealand Supreme Court looked at this in Wi v R [2009] NZSC 121, holding that absence of previous convictions has sufficient probative force to meet the requirement of relevance (s 7 of the Evidence Act 2006) but in a particular case it may have only a slight tendency to prove a matter of consequence [19]. I mentioned Wi in the update to my note on Maye v R (Jamaica) [2008] UKPC 35.

Just a little bit of probative value is sufficient to meet the relevance requirement. This does not mean that almost anything goes, because the court can exclude evidence under s 8 if its prejudicial effect outweighs its probative value. Would that little bit of probative value be sufficient to meet the evidential burden of raising a defence? How much "tendency to prove" does the evidential burden require. Probably this is best expressed as a tendency sufficient to raise a reasonable possibility that the issue favours the defendant.

Here we drift further from the facts of Khazaal, like French CJ's ships passing in the night [12]. Imagine that 10% of scholars support violence, and 90% do not. Does evidence that D is a scholar mean that we can be 90% sure he does not support violence? Of course not. Relevance must not be confused with probative value. Yes, evidence that D is a scholar is relevant in the sense that D is using it to support the proposition that it tends to suggest he is not advocating violence. But the probative value (ignoring the separate question of rebuttal by evidence that D's actual writing did in fact advocate violence) of being a scholar requires consideration of different things.

First, one looks at the population of people who advocate violence, and asks what proportion of them are scholars. Then one looks at the population of people who do not advocate violence, and asks what proportion of them are scholars. This allows one to compare the proportion of scholars among the advocates of violence with the proportion of scholars among peaceful people. That tells one whether being a scholar is more consistent with advocating violence than it is with being peaceful. The probative value of the fact of D being a scholar is this comparison of proportions.

This is not how judges reason, but the result is the same in Khazaal. French CJ pointed out that mere consistency with innocent purpose is insufficient to tend to prove innocent purpose [18]-[20]. That is, scholars exist in both the population of advocates of violence and peaceful people, and their existence among peaceful people does not of itself have probative value for the proposition that D was peaceful. I suspect that he was wrong to adopt McClennan CJ at CL's phrase "the evidence ... was entirely neutral", because really the evidence was incomplete: it needed a context. The Court wanted more information about D's scholarly writing and about whether that was consistent with the writing which was the subject of the allegations.

It is appropriate to reject general probabilistic reasoning when specific evidence relevant to a particular case can be obtained. This is the Schrödinger's cat metaphor: once the box is opened and we look inside, the cat's being dead or alive is no longer a question of probabilities. If D kept the box closed, he needed to assist the court more with probabilities, and if he opened the box, he needed to demonstrate that this writing was in line with his other work.

Delay and its various remedies

The Privy Council has recently corrected any impression that may have existed about when unreasonable delay should result in the staying of proceedings or the quashing of a conviction: Tapper v DPP (Jamaica) [2012] UKPC 26 (17 July 2012).

The quashing of a conviction is only appropriate where delay prevents a fair trial or where delay makes it unfair to put the defendant on trial at all: Boolell v The State (Mauritius) [2006] UKPC 46 (noted here on 18 October 2006).

Other remedies may be the reduction of a sentence or if the defendant is acquitted the payment of compensation, the making of a public apology, or the expediting of a trial without further delay: Attorney-General's Reference No 2 of 2001 [2003] UKHL 68 per Lord Bingham at [24]-[25], applied in Tapper.

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.

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.

Law reform by stealth

Sometimes the implications of law reforms or new legislation dawn on me rather slowly. This can happen to other people too, thank goodness, especially where controversial aspects of the proposed reforms distract attention from something more subtle but profoundly disturbing. So it is with ... [Note: the first part of this posting, down to the "Update" has been published in NZ Lawyer, Issue 188, 13 July 2012, copyright LexisNexis NZ Ltd - no longer available online as NZ Lawyer has a new publisher.]

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):

"There should be a standard statutory threshold for the exercise of general law enforcement powers of search. That threshold should be reasonable grounds to believe that an offence has been, is being, or is about to be committed, and that evidential material is in the place to be searched. That test should be departed from only where there is a compelling case to do so. Current provisions where the lower threshold can be justified and should be retained include sections 60 to 61 of the Arms Act 1983 and search powers relating to border control offences under the Customs and Excise Act 1996."

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]:

"Having "reasonable grounds to believe", the test under s 198 of the Summary Proceedings Act, is a higher standard to meet than "reasonable ground to suspect", the test under s 60(1) of the Arms Act for example (see R v Karalus (2005) 21 CRNZ 728 (CA) at para [27]). Belief means that there has to be an objective and credible basis for thinking that a search will turn up the item(s) named in the warrant (see Laugalis (1993) 10 CRNZ 350 (CA) at pp 354 – 355), while suspicion means thinking that it is likely that a situation exists. The issuing officer must hold the view that the state of affairs the applicant officer is suggesting actually exists (see Sanders [1994] 3 NZLR 450
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:

"Search without warrant is a very special exception to the general principle that police officers must satisfy a statutory officer that they have reasonable grounds for believing justifying the issue of a warrant authorising their entry to and search of private property. As Sir Thaddeus McCarthy put it, "New Zealanders have been cautious in our grants of powers to the police", citing Lord Devlin's observation that:

"It is because the British have learnt to measure out stingily their grants of authority so that it is just enough and no more that they have, perhaps more successfully than any other nation, held the balance between order and freedom"

("The role of the Police in the Administration of Justice", Clark, Essays on Criminal Law in New Zealand, p 173.)"

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:

"Law enforcement needs are met by not requiring an overly high factual foundation for the commission of a crime to trigger investigative powers. But human rights, and in particular the right to be free from unreasonable search (and by extension having reasonable expectations of privacy respected) are upheld by requiring a more significant factual foundation for those investigative powers to operate on a particular place or person, etc."

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:

"The application and warrant should specify which of those lettered paragraphs [(a), (b) and (c) of subsection (1)] is involved. Generally speaking as many of them as it is proper to invoke should be invoked and a proper foundation should be laid for the necessary reasonable grounds for belief in respect of each paragraph invoked. In almost all cases where the issue of the warrant is justified paragraph (b) is likely to apply; paragraph (a) is generally somewhat less likely to be engaged while paragraph (c) is probably the least likely to apply in the general run of cases"

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.

What are the mental elements of dangerous driving?

Dangerous driving is risk-based, not negligence-based: King v The Queen [2012] HCA 24 (20 June 2012). It is not necessary to ask whether there has been a sufficiently great level of negligence to attract criminal rather than merely civil liability. Such negligence could be sufficient if it reached a high enough level, but it is not a necessary ingredient of dangerous driving. So, on the 3-2 majority's reasoning in King, the judge had not been wrong to direct the jury that the prosecution did not have to prove criminal negligence [48], [50].


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.

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]:

"Dangerous driving causing death is a serious criminal offence punishable by up to 14 years in prison. Like all criminal offences, it consists of two components: prohibited conduct — operating a motor vehicle in a dangerous manner resulting in death — and a required degree of fault — a marked departure from the standard of care that a reasonable person would observe in all the circumstances. The fault component is critical, as it ensures that criminal punishment is only imposed on those deserving the stigma of a criminal conviction. While a mere departure from the standard of care justifies imposing civil liability, only a marked departure justifies the fault requirement for this serious criminal offence."

On the reach of the criminal law, he continued:

"[2] Defining and applying this fault element is important, but also challenging, given the inherently dangerous nature of driving. Even simple carelessness may result in tragic consequences which may tempt judges and juries to unduly extend the reach of the criminal law to those responsible. Yet, as the Court put in R. v. Beatty, 2008 SCC 5 (CanLII), 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 34, "If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy." Giving careful attention to the fault element of the offence is essential if we are to avoid making criminals out of the merely careless."

On 25 February 2008 I discussed Beatty and its various judicial analyses of the ingredients of dangerous driving. A minority approach in that case was to use mens rea to assist in determining whether there was an actus reus, which indeed seems conventional (actus non facit reum nisi mens sit rea, or words to that effect), but it ignores the first requirement which is an act that causes harm. A level of bad conduct must exist before it can come within the reach of the criminal law. Otherwise, outwardly normal driving would be criminally dangerous if the driver's state of mind was a marked departure from the standard of care expected of drivers. In Beatty all judges agreed that the acquittal should be restored, but their reasoning was divergent. McLachlin CJ, Binnie and LeBel JJ held that a momentary crossing of the centre line was not an actus reus of dangerous driving. Charron, Bastarache, Deschamps, Abella and Rothstein JJ held – correctly I think - that it was. All judges agreed there was no mens rea as there was only a momentary lapse of attention.
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]:

"In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused's manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of Beatty, "The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving" (emphasis added). A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions."

Personally I would take the consequences of the driving as relevant to whether there was an actus reus: what was the harm? Not just pulling out from a stop sign. Hitting another vehicle was relevant too. Be that as it may, the Court continued by reasoning that if there is an actus reus, attention turns to whether there is a fault element or mens rea:

"[36] The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48). It is helpful to approach the issue by asking two questions. The first is whether, in light of all of the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances."

The "marked departure" requirement serves to separate criminal from civil responsibility. Momentary lapses of attention can occur in good drivers and in appropriate circumstances may give rise to civil liability or to convictions for careless driving [37]. As established in Beatty and cited by the Court in Roy [38]:

"The marked departure from the standard expected of a reasonable person in the same circumstances — a modified objective standard — is the minimum fault requirement. The modified objective standard means that, while the reasonable person is placed in the accused's circumstances, evidence of the accused's personal attributes (such as age, experience and education) is irrelevant unless it goes to the accused's incapacity to appreciate or to avoid the risk (para. 40). Of course, proof of subjective mens rea — that is, deliberately dangerous driving — would support a conviction for dangerous driving, but proof of that is not required (Charron J., at para. 47; see also McLachlin C.J., at paras. 74-75, and Fish J., at para. 86)."

And now for the tricky point, contentious in Beatty: when can an inference of mens rea be drawn from the actus reus? The Court gave this answer [42]:

"Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances (Charron J., at para. 49; see also McLachlin C.J., at para. 66, and Fish J., at para. 88). In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference."

The trouble with this approach is that it is perfectly normal for the law to hold a person responsible for an intended act that causes harm, and intention is usually inferred from the conscious performance of an act. There is no such thing as driving that is merely "simply dangerous" because by definition dangerous driving is driving that is a marked departure from the standard of a reasonable driver. This imagined "simply dangerous" driving should not be immune from the usual approach to determining intention and responsibility, and "on its own" it should support an inference that it was intended. The Court acknowledged [42, above] that "simply dangerous" driving is an actus reus. It is important to remember we are only talking about the drawing of an inference of mens rea, and in the circumstances of a particular case there may be facts giving rise to competing inferences or facts that strengthen the inference of mens rea.
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]:

" ... While the appellant's act of driving out from the stop sign was apparently a voluntary act, there was no evidence to support the conclusion that the appellant was in fact aware of the risk he was creating in doing so and deliberately chose to run that risk ... ."

This seems to mean that the evidence suggested that the appellant had been well aware of the risk but had simply, and excusably, misjudged the position and speed of the oncoming vehicle. He knew there was a risk but he did not correctly measure the level of risk. The Court's assessment of the facts was [55]:

" ... on any realistic scenario consistent with the evidence, the time between visibility and impact would be only a few seconds. In my view, the appellant's decision to pull onto the highway is consistent with simple misjudgment of speed and distance in difficult conditions and poor visibility. The record here discloses a single and momentary error in judgment with tragic consequences. It does not support a reasonable inference that the appellant displayed a marked departure from the standard of care expected of a reasonable person in the same circumstances so as to justify conviction for the serious criminal offence of dangerous driving causing death."

Yes indeed, the defendant was not guilty because of absence of mens rea. I think there was an actus reus, just as there really was one in Beatty: pulling out from a stop sign and hitting an oncoming vehicle is a dangerous act, just as crossing the centre line while driving and hitting a car on the other side of the road is a dangerous act, but in each case the absence of mens rea supported acquittal. There was not the degree of inattention required in the circumstances to support a finding of sufficient fault for attribution of criminal responsibility.

Criminal responsibility, insanity, diminished responsibility and the role of the common law

The criteria for holding a person (D) responsible in criminal law for a particular harm emerge from moral decisions. These criteria are manifest as statutory laws and as judicially created common laws. For example, D's acts must be voluntary. They must cause the relevant harm. There must be no circumstance of justification or excuse.

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].

The moral dimension is often recognisable by a requirement for reasonableness. Self-defence justifies killing, or any other form of violence, where it is reasonable for D to cause the harm in the circumstances as he believed them to be. This almost universal formulation of self-defence reflects its common law origins. The common law reflects the customs of the people. Reasonable conduct should be lawful because it is perceived as right.

Is the common law merely residual, ever-diminishing as statute advances? Or is the common law a potentially powerful source of justice? It might seem from the High Court of Australia decision in PGA v The Queen, discussed here recently, that the common law perpetually withers, although that would  - or should - be a misconception. Judges deal with the requirements of justice in particular cases, and with each case there is potential for development of the common law. This should be as true for defences as it is for any other developments that justice requires. By "justice" I mean here the judicially perceived sense of what the community regards as right. For recognition of this ability to develop new defences, see R v Kingston[1994] 3 WLR 519, at 536 (although in R v Cargill [1995] 3 NZLR 263, (1995) 13 CRNZ 291(CA) I was unable to persuade the Court to recognise a new defence of reasonable demand in relation to a charge of blackmail; that development was subsequently made by legislation: Crimes Act 1961, s 237(2)).

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.

Daniel, above, prompts us to think about whether a defence of diminished responsibility should be developed at common law where legislation is silent on that. A defence of insanity will not cover all the states of mind that should negate criminal responsibility. The varieties of what in a loose sense may be called mental disorder seem extensive, as anyone who has glanced at the Diagnostic and Statistical Manual (4th ed) can see. Some of them, as Daniel illustrates, are states of mind that, if established at trial, should lead to acquittal. A court should be allowed to decide whether in a particular case mental abnormality should attract liability. This is what the court in Norway is currently doing, but under the guise of deciding the question of sanity.

An overview of judicial response to mental deficiencies in the context of the (now, former) statutory partial defence of provocation in New Zealand illustrates how moves from absolute rejection to accommodation can be made. In R v McGregor [1961] NZLR 1069 (CA) the Court declined to extend the meaning of provocation in the absence of statutory authority. Some withdrawal from this absolute position is evident in R v McCarthy [1992] 2 NZLR 550, (1992) 8 CRNZ 58 (CA). A variety of mental weaknesses have been accepted as relevant to whether D had in a non-culpable sense lost his self-control: R v Taaka [1982] 2 NZLR 198 (CA) obsessive compulsive personality, R v Pita (1989) 4 CRNZ 660 (CA) aversion to violence, R v Foreman 18/2/92, CA254/91 active schizophrenic process, R v Oakes [1995] 2 NZLR 673 (CA) battered woman's syndrome, R v Timoti [2005] 1 NZLR 466, (2004) 21 CRNZ 90 (CA) paranoid personality disorder.

Does abolition of provocation as a partial defence to murder mean that none of these factors can have any relevance to the attribution of criminal responsibility generally? I think not. But even on a narrow view that they could only be relevant to whether intention or recklessness, or voluntariness, or causation had been proved, there is sufficient flexibility in the mysteries of fact-finding for morality to have an influence.

Ascertainable law

The law must be ascertainable. This is a requirement for the enforceability of enacted law and for the validity of common law. In jurisdictions where the common law creates offences, it must be possible to find out what they are.

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.