Amending the Criminal Procedure Act 2011 [NZ]

Some tweaking of the Criminal Procedure Act 2011 has been found to be necessary. My submissions on the Criminal Procedure Legislation Bill are here.

Contempt, imprisonment and appeals

A few interesting remarks on imprisonment for contempt and on sentence appeals generally were made in B (Algeria) v Secretary of State for the Home Department [2013] UKSC 4 (30 January 2013).

When dealing with a contemnor and considering the option of committal to prison, the court needs to assess two things, coercive and penal:

"[14] ... Committal is appropriate where it can reasonably be expected that this will induce the contemnor to purge his contempt (the coercive effect). It is also appropriate to punish contempt of a court's order (the penal element). Frequently both elements will underlie a committal order. Where there is reason to believe that committal will secure compliance with a court's order, the fact that the person subject to it has already substantial restrictions on his liberty is immaterial. Where it is required in order to properly punish the contemnor, the loss of residual liberty is unlikely to weigh heavily against the making of the order."

The contemnor must be punished for misbehaviour and also must be induced to behave properly.

The other topic considered here is when an appellate court should correct a sentence itself instead of remitting the case to the lower court for it to impose an appropriate sentence:

"[11] Where an appellate court has concluded that the basis on which the decision of the lower court to sentence someone for contempt is flawed, it does not follow that the sentence chosen by the lower court is inevitably wrong. It may be an entirely correct sentence but for different reasons from those articulated by the original sentencing court. The affirmation of the original sentence does not necessarily entail an endorsement of the reasons for which the decision to sentence was made. Where it has been determined that the basis for the original sentence of imprisonment is wrong, a de novo assessment must indeed occur. A fresh look at the circumstances material to the question of whether imprisonment is the right disposal should take place in light of the correct understanding of those circumstances.

"[12] It is not essential, however, even as a matter of generality, that the fresh look be undertaken by the original sentencing court. If it is sufficiently clear to the appellate court that a sentence of imprisonment is appropriate in light of its revised view of the relevant facts, it is not required as a matter of principle or of practice that the matter be remitted to the court which first imposed the sentence. As Jackson LJ said in JSC BTA Bank v Solodchenko (No 2) [2012] 1 WLR 350 para 60, where an appellate court is seised of the case and in possession of all relevant facts, the proper course is for the appellate court to determine what the proper sentence for contempt should be on the basis of the true facts. Where, of course, a fresh investigation of new facts is required and it is necessary or desirable that this be undertaken by a first instance court, remittal will be suitable. This is not such a case. The Court of Appeal was able to evaluate the medical evidence and reach reliable conclusions on its significance. It could decide what the appropriate sentence should be and it was right to do so."

And on the topic of contempt of court, there is a particularly interesting discussion of the common law powers by Professor ATH Smith, "Reforming the New Zealand Law of Contempt of Court – An Issues/Discussion Paper", 18 April 2011, and also in Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767, (2010) 24 CRNZ 748 (SC).

Withdrawal from offending at common law – evidential and legal burdens

The burden and standard of proof of the affirmative defence of limitation, and some aspects of the affirmative defence of withdrawal, were considered in Smith v United States, USSC No 11-8976, 9 January 2013.

Subject to any statutory definition to the contrary, an affirmative defence is one that affirms that even though the actus reus and the mens rea may have been proved, nevertheless the defendant is not guilty.

Examples of affirmative defences are infancy, insanity, self-defence, coercion, and limitation.
This last one, limitation, amounts to the defendant saying, "Yes, I committed the offence, but that was so long ago that the law prevents me being charged." Not all offences are limited in this way, and limitation periods are established by legislation. Terminology can be a bit confusing, so when I say the offence was inside the limitation period that means the defendant can be prosecuted, and when I say it was outside the limitation period that means the defendant cannot be prosecuted.

In Smith the relevant offences were conspiracies to commit various serious offences. A limitation period applied. The defendant relied on the limitation period, saying his participation in the conspiracies had ceased outside that period because he had withdrawn his participation. At trial the issue of withdrawal only arose as a result of a question from the jury, and the judge gave a direction that the defendant had to prove withdrawal to the standard of the balance of probabilities. The Supreme Court held that this did not violate the Due Process clause.

Placing the burden of proof of withdrawal on the defendant did not violate the right to be presumed innocent because, as the Court had said in Patterson v New York, 432 U.S. 197 (1977),

"This was the rule when the Fifth Amendment was adopted, and it was the American rule when the Fourteenth Amendment was ratified. Commonwealth v. York, 50 Mass. 93 (1845)."

Of course legislatures could change that rule, as indeed most have, so that it is now usual for defences, whether they be affirmative or not, to be for the defendant to raise but for the prosecutor to disprove. The defendant under this usual approach has only the "evidential burden" of pointing to some evidence sufficient to put the existence of the defence into issue.

But in the eighteenth century, as Blackstone described in his Commentaries, the defendant had to prove the defence. In Smith the Court, in its unanimous opinion delivered by Scalia J (who did not on this occasion have the opportunity to indulge his appetite for the purple prose of vigorous dissent), pointed out that the burden on the defence to establish withdrawal on the balance of probabilities was justified because it was the defendant who would have the relevant evidence on the issue. The prosecutor could not be expected to prove a negative. The defence here did not seek to negative any element of the offence that the prosecutor had to prove.

To negative his participation in the conspiracies the defendant had to prove that he took steps "to dissociate from his confederates". The conspiracy was a continuing offence, and the prosecutor had proved that it continued inside the limitation period, but the prosecutor could not be expected to prove that the defendant did not withdraw before then. Participation in the conspiracy continues even if the defendant is inactive after joining it, until he withdraws or until the conspiracy terminates.

I should emphasise that the law is not necessarily the same outside the United States. The common law has developed since the eighteenth century and legislation usually reflects those developments: a defence carries an evidential burden for the defendant and then a legal burden of disproof on the prosecutor. The usual exception is insanity, where the legal burden is on the defendant to the standard of the balance of probabilities. But where the defence of withdrawal is still a common law defence the policy of placing the legal burden on the defendant, on the issue of the taking of sufficient steps to withdraw, may need some consideration.

Withdrawal cannot be effective if the offending cannot be undone. A conspiracy is complete upon agreement, and it continues while that agreement exists even if the parties to it change. Once the defendant has entered the conspiracy it is too late for him to withdraw. And in relation to attempts, it is too late to withdraw once a sufficiently proximate act has been committed. And incitement is committed when the incitement occurs – it is too late to withdraw after then. But liability can arise from assistance or encouragement, and it may be possible for the defendant to withdraw his assistance and encouragement. Liability can also arise from participation in a common purpose, and a defendant may be able to withdraw by negativing his participation. More than verbal withdrawal may be required, for example where the defendant has provided others with equipment needed to commit an offence. Even verbal withdrawal may require more than mere dissociation, and the defendant may have to try to persuade the principal offender not to continue.

In Ngawaka v R [2004] NZCA 249 (6 October 2004) the Court of Appeal approved a statement of the law on withdrawal by Hammond J in R v Pink [2001] 2 NZLR 860:

"As a matter of legal doctrine, it seems to me that the following conditions must be met:

• First, there must in fact be a notice of withdrawal, whether by words or actions.

• Secondly, that withdrawal must be unequivocal.

• Thirdly, that withdrawal must be communicated to the principal offenders. There is some debate as to whether the communication must be to all the principal offenders, but here all were told.

• Fourthly, the withdrawal may only be effected by taking all reasonable steps to undo the effect of the party's previous actions. (See R v Menniti [1985] 1 Qd R 520.) As with any test of "reasonableness", it is impossible to divorce that consideration from the facts of a given case. The accused's actions may have been so overt and influential that positive steps must be taken by him to intercede, and prevent the crime occurring. There is at least one authority (R v Grundy [1977] Crim LR 534 (CA)) which suggests that where the accused's participation was in the form of counselling, attempts by the accused to dissuade the principal offenders from proceeding with the crime are sufficient."

Hammond J continued:

"[15] That is the law, as I understand it, in all the British Commonwealth jurisdictions. It follows that because the onus is on the Crown, where "withdrawal" is raised by a party the onus is on the Crown to negative any such "defence". The difficulty which has arisen in the cases appears to be as to the precise conditions of withdrawal which have to be in place for this doctrine to apply.

[16] A classic statement of the defence is that by Plowden in his commentary on R v Saunders and Archer (1576) 2 Plowd 473, 476; (1576) 75 ER 706, 710:

"If I command one to kill JS and before the fact done I go to him and tell him that I have repented, and expressly charge him not to kill JS and he afterwards kills him, there I shall not be accessory to this murder, because I have countermanded my first command, which in all reason shall discharge me, for the malicious mind of the accessory ought to continue to do ill until the time of the act done, or else he shall not be charged; but if he had killed JS before the time of my discharge or countermand given, I should have been accessory to the death, notwithstanding my private repentance."

[17] A more modern statement of the doctrine is to be found in the judgment of Slane JA in the Canadian appellate decision of R v Whitehouse [1941] 1 DLR 683, 685: the doctrine of withdrawal only obtains on the footing that, "where practicable and reasonable, there must be timely communication of the intention to abandon the common purpose".

[18] That decision gave rise to some debate as to what is meant by "timely" and "effective"? What, for instance, is the position to be where timely communication is not practicable? Some jurists suggested that withdrawal by means of countermand would not then be available to the accomplice at all. On that point, the High Court of Australia in White v Ridley (1978) 52 ALJR 724 has held that the withdrawal must be sufficiently timely to be capable of being effective.

[19] That there is a doctrine of withdrawal in New Zealand law is at least implicitly accepted by the Court of Appeal in a decision cited to me by Mr Ellis – R v Wilcox [1982] 1 NZLR 191. In that case, at p.196, Sir Owen Woodhouse accepted that there was a material misdirection on the part of the trial Judge in that case, insofar as the jury had been left under the misapprehension "that any subsequent change of mind following the first step taken (the purchase of the weapons) could not be used by Wilcox as a defence".

[20] It is not possible in a trial ruling of this kind to consider at length, even if it were appropriate, the very considerable academic literature and interest which has been generated on this difficult topic. The literature includes Lanham "Accomplices and Withdrawal" (1981) 97 LQR 575; Smith, "Withdrawal from Criminal Liability for Complicity and Inchoate Offences" (1984) 12 Anglo-American Law Review 200; O'Regan, "Complicity and the Defence of Timely Counterman or Withdrawal Under the Griffith Code" (1986) 10 Criminal Law Journal 236; Marcus, "Joint Criminal Participation: Establishing Responsibility, Abandonment" (1986) 34 American Journal of Comparative Law 479. See also in New Zealand, Simester and Brookbanks, Principles of Criminal Law (1998) at para 5.1.4.4, and R v Malcolm [1951] NZLR 470 (CA).

[21] Without attempting to resolve the jurisprudential debate as to the basis of this "defence" (if a defence it be, properly so called) it seems to me that, as a matter of public policy, there should be a plea of this kind which is open to an accused. It is surely in the public interest that somebody who has contemplated criminal endeavour and changed their mind, should be able to do so. At the same time, attempting to withdraw from a crime about to happen may not in itself be sufficient, since the accomplice's prior act may have some very distinct impact on what in fact occurs. It may be that the law should look for some kind of abrogation of the influence of that act."
 

The question of who should have to prove this abrogation is also a policy matter. Hammond J has, naturally, assumed at [15] that where withdrawal is raised it is for the prosecutor to negative it, and this was applied in Pink in reaching the conclusion that the prosecutor could not establish beyond reasonable doubt that the defendant had not withdrawn. But, especially where there are technical questions about whether withdrawal is really a defence, it is not inevitable that the common law must put the legal burden of negativing it on the prosecutor.

Update: the New Zealand Supreme Court has held that withdrawal is a common law defence and that Hammond J's points in Pink need modification: Ahsin v R [2014] NZSC 153, especially at [134] per McGrath, Glazebrook and Tipping JJ.

The effect of trial delay on sentence determination

Aggravating factors at sentencing do not include delay in the proceedings if the defendant was not responsible for that delay. Nor do they necessarily include exercise of the right to put the prosecution to proof: Hassen Eid -En Rummun v The State of Mauritius (Mauritius) [2013] UKPC 6 (7 February 2013), [11], [18].

Those propositions of law depart from the usual approach to delay. It is conventional to ask, to what extent is it a mitigating factor that the defendant has been deprived of the right to a trial without undue delay, and to what extent is it a mitigating factor that the defendant has pleaded guilty?

Where there may have been a breach of a defendant's constitutional right, it is the duty of the sentencing court to examine whether any such breach should have an effect on the disposal of the case, whether or not that issue has been raised by counsel: [7]. The seriousness of the offending may be such as to outweigh the effect of the breach, but the breach is a factor that must be considered: [13].

In this case delays seem to have been largely due to a co-defendant's strategy, although there were also delays due to the unavailability of prosecution witnesses including police officers. The facts needed clarification, and the case was remitted to the Supreme Court of Mauritius, but it is implicit in the Board's approach that where a co-defendant or a prosecutor is causing delay, the defendant should object to that delay and ask that his objection be recorded, because at sentencing his attitude to the postponement of the proceedings will be closely examined: [16], applying Celine v State of Mauritius [2012] UKPC 32, and Boolell v State of Mauritius [2006] UKPC 46 (noted here 18 October 2006). But mere acquiescence in delay is not the same as actively promoting delay [17].

While there is no doubt that an early plea of guilty is a mitigating factor, courts have been careful to distinguish the absence of a mitigating factor from the presence of an aggravating factor: see for example Republic of Croatia v Snedden [2010] HCA 14 (noted here 19 May 2010). Failure to plead guilty at an early stage can result in loss of a sentence reduction, but it does not – or should not – lead to an additional penalty. This reasoning satisfies legally trained minds, but defendants can find it difficult to follow. It is, however, important not to coerce guilty pleas: Hessell v R [2010] NZSC 135 at [60]-[61], discussed here on 16 November 2010.
Here is the Board's treatment of this point [18]:

"On the question of the appellant's decision to contest the case on grounds that proved to be unfeasible, the Board considers that this factor should be treated with some caution. A defendant to any criminal charge is entitled to put the prosecuting authorities to proof of his guilt. The Board considers that the circumstances in which, by reason of a not guilty plea, a trial is delayed call for anxious scrutiny before he is penalised for such delay."

The word "penalised" here is inappropriate for legal discourse. There is a tendency to pussy-foot around points that should be stated absolutely. What do "some caution" and "anxious scrutiny" mean?

If the defendant "is entitled" to put the prosecution authorities to proof, how can exercising that entitlement result in punishment? It may result in loss of a mitigating factor, but it would be wrong to treat it as an aggravating factor. Similarly it would be wrong to treat trial delay as an aggravating factor, whereas it would be correct to treat unjustified trial delay caused by the defendant as grounds for reducing or eliminating the mitigating effects of loss of the right to a trial within a reasonable time. Or at least that is what this decision recognises.

It is unfortunate that the Board was so brief on this point. On what principled basis should a defendant be deprived of the full mitigating effect of unreasonable trial delay? The defendant has already lost the mitigating effect of an early guilty plea. The basis for mitigation arising from an early guilty plea is the pragmatic one of encouraging the saving of court time and the associated expense of trial. There is a link between the guilty plea and the saving of time and cost. On the other hand, mitigation arising from breach of the right to trial without undue delay is based on encouraging prosecution efficiency. If the prosecution process has been inefficient to the extent of being unreasonably slow, where is the link to the defendant's plea? Without judicial clarification we can properly wonder whether the Board is correct to recognise that a plea of not guilty may reduce the defendant's remedy for unreasonable delay by the prosecution.

Not a long vacation

And now a quick look at some decisions of the Supreme Court of Canada, the delivery of which reminds us that in the Northern Hemisphere it is not the season for long vacations.

In R v Manning, 2013 SCC 1 (17 January 2013) legislation required a judge to take into account particular circumstances relating to the offence and the offender, but the judge applied also the broad principles of sentencing, when deciding whether to order forfeiture of a motor vehicle. The judge was wrong.

In R v O'Brien, 2013 SCC 2 (17 January 2013) on a charge of uttering threats a mens rea element is the intention that the words intimidate or be taken seriously by the person spoken to. The defendant had said to his ex-girlfriend that he would kill her if she had an abortion, and the trial judge held the intent was not proved. Crown's appeal against acquittal dismissed.

R v Ryan, 2013 SCC 3 (18 January 2013) holds that in common law duress the threat must be made to encourage the defendant to commit the offence. Therefore duress was not available where the defendant counselled the murder of her abusive husband, relying on his conduct as threatening.

Proportionate confiscation of proceeds of crime

You can't read the dissent of Lord Phillips and Lord Reed in R v Waya [2012] UKSC 51 (14 November 2012) without marvelling at its brilliance. Nor can you then read the majority judgment of seven other members of the Court without thinking it too is pretty good.

All judges agreed [1]-[34], [82] that the Proceeds of Crime Act 2002[UK] had to be interpreted to avoid the making of a confiscation order that was disproportionate. However the minority concluded that no order should be made at this stage because any order would be relatively modest, while the majority ordered payment of £392,400.

The key difference, although there were others, was that the majority did not accept that the governing consideration on proportionality was what the minority termed the "real benefit" obtained by the defendant through the offending [26].

The facts were simple: the defendant had purchased a flat which fell into the high end of the property market in London, paying 40% of the purchase price with his honestly obtained money and 60% by funds secured by a mortgage that he obtained by a false representation as to his income.

The dishonesty was minor and was dealt with in separate criminal proceedings by a modest community-based sentence. It was unclear how the lender would have reacted if the truth had been known. There was no risk to the lender's funds because of the size of the defendant's contribution and the unlikelihood of a decline in that part of the property market. The only loss that might have been suffered arose from the higher rate of interest that the lender might have charged. At the time relevant to confiscation, about 5 years after purchase, the flat was worth more than double the purchase price and the mortgage had been discharged, including an early payment penalty paid from clean funds. Substituted financial arrangements, all judges agreed, were not relevant.

The minority, applying the Act, concluded that the amount of the order – before modification by the proportionality requirement – would have been the current value of the flat minus the current mortgage on it. This came to £987,400. However, applying its "real benefit" approach, the minority reasoned that what the defendant really obtained dishonestly was a loan on more favourable terms that might otherwise have been required, and it would have ordered that the case be remitted to the lower court for that amount to be calculated. However in view of the stress that the proceedings must have caused the defendant, the minority would have simply quashed the confiscation order.

The majority interpreted the Act differently and calculated the amount of benefit dishonestly obtained by the defendant as the percentage of the increase in the defendant's equity in the property that he had obtained dishonestly (60%), and this was £392,400. In summarising this reasoning I am ignoring a minor complication arising from some repayments from clean funds made before the discharge of the mortgage. The majority saw no reason to view an order for £392,400 as disproportionate.

It might be controversial to treat movements in the property market as if they were proceeds of the defendant's dishonesty. The causal question is interesting: the defendant's dishonesty caused him to be able to purchase a property, but did it cause him to be able to make a profit? Perhaps it did. But should it then only be regarded as a contributing cause, very minor compared to market forces?

The generally important part of this case is its application of s 3 of the Human Rights Act 1998 [UK] to read in the requirement that an order not be disproportionate (applying Ghaidan v Godin-Mendoza [2004] 2 AC 557, discussed here 6 February 2005). I mean 'generally important' in the sense of important for the interpretation of this Act, for criminal proceeds legislation differs in various jurisdictions, as mentioned here on 16 May 2008. But the judgments also illustrate how senior judges can disagree over what is proportionate and how a fairly straightforward Act can be applied differently to fairly simple facts. Perhaps the complexity of the law of property is inescapable, but it is surprising to see judges differ so markedly over what is proportionate.

Update: for information on the behind-the-scenes difficulties experienced by the judges in deciding this case, see the book review posted here on 17 April 2015.

A veiled attack on substantive fairness in Canada?

The substantive right to a fair trial must be distinguished from its procedural correlatives such as the right to confront witnesses and to present a defence. The procedural rights may be subject to balancing against competing rights, but the substantive right to a fair trial is regarded as absolute in some jurisdictions.

The Supreme Court of Canada has recently not distinguished procedural fairness from substantive fairness, and by a majority it has treated the apparently composite right to a fair trial as something that can be balanced against competing rights: R v NS, 2012 SCC 72 (20 December 2012).

The implications of the case extend far beyond its facts, which raised the issue of how a court should decide whether to permit a witness to wear a niqab (face covering). There is obviously a range of potential answers: always permit it (Abella J), never permit it (LeBel and Rothstein JJ), and sometimes permit it (McLachlin CJ, Deschamps, Fish and Cromwell JJ).

The majority held that if a right competed with the defendant's righs to confront witnesses and to present a defence, and if there was no way to give full effect to all these rights, there would then be a balancing. This would require some limitation of rights, perhaps but not necessarily on both sides.

In including the substantive fair trial right in this balancing exercise the majority have declined the opportunity to use it as the ultimate criterion. Contrasting views of the importance of substantive fairness are found in cases from other jurisdictions, not considered in this case: R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45 (HL) (mentioned here on 4 September 2004, and see also the discussion of Randall v R (Cayman Islands) [2002] UKPC 19 and of other relevant cases here on 16 September 2010, R v Davis [2008] UKHL 36 noted here as the second entry for 19 June 2008, and the still-obscure position in Gäfgen v Germany [2010] ECHR 759 noted here on 25 June 2010.

NS appears to establish that in Canada the right to a substantively fair hearing is not absolute. The minority judgments illustrate arguments that now must be regarded as wrong. McLachlin CJ summarised her position for the majority [34]:

"... The question is whether the salutary effects of requiring the witness to remove the niqab, including the effects on trial fairness, outweigh the deleterious effects of doing so, including the effects on freedom of religion ... ."

This assumes that the right to a fair trial may not outweigh freedom of religion. And at [46]:

"I have proposed that courts should deal with the conflict between rights in cases such as this by finding a just and appropriate balance between freedom of religion on the one hand and fair trial rights on the other. The result is that where a niqab is worn because of a sincerely held religious belief, a judge should order it removed if the witness wearing the niqab poses a serious risk to trial fairness, there is no way to accommodate both rights, and the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so."

The deleterious effects are the limitation on freedom of religion, the inhibition of complainants and the consequential escape of offenders from justice. Obviously those are hugely important considerations. The salutary effects are preventing harm to the fair trial interest and safeguarding the repute of the administration of justice. The need to find a balance between the deleterious effects and the salutary effects recognises that the salutary effects do not necessarily outweigh the deleterious effects.

It may be that when unfairness goes beyond procedural unfairness and becomes substantive unfairness, it will always outweigh the deleterious effects of requiring a competing right to yield. But that is not clearly stated as the ratio of this case. On its face the majority reasoning has an unpleasant "ends-justify-the-means" blemish.

Although this case is newsworthy for its decision about the wearing of niqabs and the place of religious expression in the courtroom, it has much wider implications. In a contest of competing rights, the majority judgment potentially diminishes the right to a fair hearing in Canada.

The obligation to select an impartial jury

Jury vetting was last week the subject of three decisions of the Supreme Court of Canada. All three inevitably focus on trial fairness.

R v Davey, 2012 SCC 75 (21 December 2012) concerns personal opinions sought by the Crown from police officers about the suitability of prospective jurors, recorded in an annotated list that was not disclosed to the defence, and a trial in which two of the chosen jurors had been marked as "good" and "ok".

Karakatsanis J for the Court observed that this case did not involve police access to any database or any police investigation. However she held there should be no systematic distribution of jury panel lists to police services for comment regarding the suitability of potential jurors [8]. State resources should not be used by the Crown to enable it to choose a jury that may be perceived to be favourable to the Crown. Targeted consultation with a limited number of individuals working on the case with the prosecution is acceptable if it is to discuss concerns as to partiality, eligibility or suitability of a prospective juror [9], but any information relevant to the selection process must be disclosed to the defence.

Where the information that should have been disclosed had not been disclosed, the question was whether there was a real possibility that the jury was not impartial or whether, had it been disclosed, a differently constituted jury would have been selected. If not, the further question was whether the circumstances created an appearance of unfairness such as to interfere with the administration of justice or such as to so offend the community's sense of fair play and decency that the proceedings should be set aside as a miscarriage of justice [24], [54], [74].

The selection process must ensure an independent, impartial and competent jury [30], and neither party has the right to select a jury or a positive power to shape a jury.

Although there had been a breach of the disclosure requirement here, in the circumstances there was no unfairness and the appeal was dismissed. The reasoning is fact-dependent and the Court defers, with only a slight weakness appearing in [72] where mention is made of the defence not having used all its peremptory challenges.

An interesting and undecided point was what standard would be on the Crown if it had the burden of showing that the jury had been impartial or that there was no appearance of unfairness such as to amount to a miscarriage of justice [55, footnote 5]. Karakatsanis J thought it may be the balance of probabilities. Arguably there is no need for a further legal burden: on appeal the appellant has the legal burden and that should be that. But the point here is that a new issue – factual impartiality - is brought into play, as a sort of defence to the appeal. However you might well think that since the possibility that a different jury might have been chosen is not necessarily related to the real harm of a biased jury, it is inappropriate to make that a criterion for a successful appeal. Therefore it would be preferable to take the more conventional approach of requiring the appellant to succeed on either (i) establishing a real risk that the chosen jury was not impartial, or (ii) establishing the appearance of unfairness. No question of a burden on the Crown would then arise.

The second vetting case did involve use of a police database: R v Emms, 2012 SCC 74 (21 December 2012). Here Moldaver J delivered the judgment of the Court. Information obtained at the request of the prosecutor and not disclosed to the defence concerned whether prospective jurors had criminal convictions or were in other respects "disreputable persons". Although the Crown was entitled to have inquiries made for the purpose of checking eligibility to serve, which included absence of disqualifying convictions, or for other information to support challenge for cause, and was obliged to disclose that information to the defence, it was not entitled to have checks on the further question of whether a prospective juror might be disreputable. But if information on disrepute came to light it should be disclosed to the defence if the Crown considered it to be relevant to the jury selection process [48]. Here the appellant failed to establish that, had the information been disclosed, there was a reasonable possibility that a differently constituted jury would have been chosen [22]-[29]. Neither was the departure from what was, by the time of the trial, a required procedure, sufficient in the circumstances to amount to a serious interference with the administration of justice, or to offend the community's sense of fair play and decency to the extent of being a miscarriage of justice [43]-[49].

The third, and leading, decision (first in time and applied in Emms and Davey) is R v Yumnu, 2012 SCC 73 (21 December 2012). Moldaver J, for the Court, set out the fundamentals applicable to when police databases may be used in jury vetting. Nothing could do more harm to the criminal justice system than the Crown and the police joining forces to obtain a favourable jury [37]. The Crown has the responsibility, as an officer of the court, to ensure every defendant receives a fair trial [40]. Randomness and representativeness are two qualities looked for in juries, and checking that gives rise to an appearance of stereotyping through the use of peremptory challenges could be seen as incompatible with the Crown's responsibility [40]. The privacy of prospective jurors is also important [43], although there are countervailing interests in ensuring eligibility and impartiality [45]. Limited use of police databases is permissible to check for grounds for challenge for cause [50]-[51]. Sometimes those checks may reveal other relevant information. Any information that is relevant to jury selection (outside matters of public knowledge or feelings, hunches, suspicions, innuendo or other amorphous information [64]) must be disclosed to the defence [55], [63].

There is also a duty on defence counsel to disclose information where there is good reason to believe a potential juror may be ineligible or may not be impartial [66]-[67].

Importantly, jury selection is not a game and winning or losing are concepts that ought not to be associated with it. The aim is to obtain an impartial jury: "The jury does not belong to the parties; it belongs to the people." [71].

Attempts by one side or another to obtain a favourable jury are inimical to the right of every person who is charged with an offence to be tried by an independent and impartial tribunal [72].
In these kinds of cases the appellant must establish that the Crown did not disclose information that it should have disclosed, and that if disclosure had been made there is a reasonable possibility that the jury would have been differently constituted [75]. The point mentioned by Karakatsanis J in Davey above, about the Crown showing that nevertheless the jury was impartial, was left open for another day [76].

On the facts here the appellant failed to establish a real possibility that a differently constituted jury would have been selected [77]. And on the alternative ground of appearance of unfairness [79] what happened here was neither a serious interference with the administration of justice nor was it such an offence to the community's sense of fair play and decency that there was a miscarriage of justice [89].

Again one might object that the possibility that a different jury would have been selected is an inappropriate requirement: even if the defendant had known what the Crown knew about the juror, the defendant may have already run out of challenges at the critical moment.

This separation of two aspects of unfairness – actual unfairness and the appearance of unfairness – gives rise to an interesting interpretive question for those who will have to apply s 232 of the Criminal Procedure Act 2011 [NZ]. There, "an unfair trial" may be construed as including a trial that appears to have been unfair, although this is far from certain.

The Supreme Court of New Zealand has taken a rather more constrained approach to the Crown's disclosure obligations in relation to jury vetting: Gordon-Smith v R [2009] NZSC 20 (23 March 2009, noted here). The dissent of McGrath J in that case is in line, concerning what needs to be disclosed to the defence, with the Supreme Court of Canada's statement of the law. The majority however went so far as to give the impression there might be some justification for limiting trial fairness:

"[18] It is always important that there be no justified perception or real risk of unfairness in any respect, if that can be avoided consistently with other relevant features. The privacy and security of jurors is such a feature. ..." [emphases added]

But Gordon-Smith was decided in a torrid atmosphere of public unrest at the perceived and potential misuse of jury panel lists especially by unrepresented defendants.

This is not to say that the Supreme Court of Canada is not also capable of wobbling a bit when it comes to trial fairness for the defendant, as shall be seen when I come to discuss veiled witnesses. However as far as jury vetting goes, the cases invite discussion of when the court should react to procedures that, although improper, had no discernible effect on the result of a trial, and if reaction is appropriate, what remedy should be given to a defendant when those at fault are out of the court's reach.

A note on substantive trial fairness

An issue of trial fairness is raised if a judge fails to address an element of an offence. If an element is overlooked, but the evidence overwhelmingly proves that element, does it matter that the fact-finder did not make a finding on it?

The significance of the omission will need to be assessed in the circumstances of each case. Trial fairness is not simply a procedural matter. If it was, the answer would be the same in every case. But trial fairness has substantive meaning: the law must be accurately applied to facts determined impartially.

In R v Khawaja, 2012 SCC 69 (14 December 2012) an element of the offence had been overlooked, but the error did not affect trial fairness:

"[93] This is an exceptional result, appropriate in the exceptional circumstances of this case. Generally speaking, if an appellate court finds that the offence for which an appellant was convicted includes an additional essential element, fairness would require ordering a new or directed trial. In this particular case, however, this Court can be confident that the appellant suffered no prejudice deserving of a new trial only because the evidence on the additional element of the offence was overwhelming, as indeed the trial judge found, and it is plain that the appellant's strategy would not have changed had the element been recognized at trial."

A misunderstanding of this would be that the ends justified the means: if the person was obviously guilty the error could not affect the fairness of the trial. What the Court means here is that the error did not affect the impartial determination of the facts because the defendant would not have conducted his defence differently had the error not occurred, and the defendant was not deprived of a real chance of a more favourable outcome.

Bain, Binnie, Fisher, Bayes – how should judges reach conclusions?

Once again out little nation is divided over the Bain case and its consequences. The current controversy is over whether the report by retired Canadian Supreme Court Justice Ian Binnie should be accepted or whether its review by retired New Zealand High Court judge Dr Robert Fisher QC has cast doubt on its conclusions.

We have seen here recently how appellate judges on the same court can differ sharply over what conclusions can be drawn from the evidence in a case. Is there a right way to arrive at conclusions from facts?

In trials juries are given little guidance on how to reason, other than being told that the drawing of inferences is a process of using logic and common sense, something people do all the time in their daily lives. It is assumed that people have an innate ability to reach proper conclusions. This assumption must be correct. We tend to be right more often than we are wrong, but without examining why.

Judges have to give reasons for their decisions. The process of articulating reasons imposes a discipline on judicial thinking, and until that process is completed a judge may not know what conclusion is going to be reached. An echo of this is the instruction to jurors to keep an open mind while evidence is being given.

Bayesian analysis is useful in revealing or guarding against errors of logic when inferences are drawn from facts. Dr Fisher has used this in his report. This does not mean that Ian Binnie was wrong to not use it in his. Most people have no idea what Bayes' Theorem is and they infer correct conclusions without using it. The interesting question is whether Dr Fisher has revealed any error of logic that was sufficient to make Ian Binnie's conclusions wrong.

My assessment is that the only candidate for being an error of this significance is Dr Fisher's claim that Ian Binnie failed to consider the evidence cumulatively as opposed to by taking each item at a time. Ian Binnie has denied, in an email to the Minister of Justice that has been published, that he made this error.

It would be astonishing if Ian Binnie had made this mistake. Judges habitually stand back after evaluating the probative value of particular facts and look at the overall picture. That is done to enable a conclusion to be drawn from the combination of the probative values of the facts. This process is what is done instinctively when people exercise their judgment.

There are all kinds of influences, revealed by psychologists, which can cause people to make mistakes. A Bayesian approach to inference drawing can counteract those, but its best application requires extensive statistical information, far beyond what is usually available in court cases.

Nearly all judicial decisions are made only on the balance of probabilities. This standard recognises that we can seldom be certain we are right, and that in the interests of finality a decision on the balance of probability is good enough. Hugely important decisions are regularly made in the courts on that basis.

It is significant that Dr Fisher has not endeavoured to decide whether Ian Binnie's conclusions were right or wrong, but that he correctly restricted his report to Ian Binnie's method. Plainly, if Dr Fisher were to go further in a subsequent report, he would apply the Bayesian approach. But that should lead to the same conclusions that Ian Binnie reached unless radically inappropriate assessments of likelihood were made by Ian Binnie over critical facts to such an extent as to influence the result of considering the combined probative values of all the relevant facts.

I was surprised when reading Ian Binnie's report at how he treated the evidence of the luminol footprints. Depending on the length of those footprints, they could have removed the case from being an exercise in assessing probabilities and made this a case of direct evidence of innocence. That was recognised in the Privy Council hearing, as both sides agree. However Ian Binnie has been generous to the prosecution by recognising some doubt over the accuracy of the measurement made by the police scientist of the footprints on the carpet at the scene.

Whether the measurement could really have been susceptible to error to an extent sufficient to cast doubt on who left it there is a matter of judgment for those who have looked at the evidence that was given on this point.

In his conclusions on the footprint evidence at para 263 of his final report, Ian Binnie appears to accept a margin of error in the measurement carried out by the police scientist at the scene of about 5mm. Taking this at its most favourable to the prosecution, the print at the scene may have been 285mm, and David’s 300mm foot may leave a print that was 295mm. That is a difference of 1cm. In tests referred to at para 252 it was noted that carpet prints were never less than the actual foot length, so it seems extremely generous to the prosecution to accept that David may have left a print that was 295mm, especially if the police scientist’s notes did not record uncertainty or imprecision when the length was measured as 280mm. In any event, even a difference of 1cm (more likely 1.5cm, and even more likely greater than that) marks a clear difference between David and Robin’s footprints. The defence expert said that David’s foot could not have left the print found at the scene (again para 252), and Ian Binnie recommended without hesitation that these results be accepted (para 257).

At the measured 280mm the footprints were exact matches for prints that would be left by Robin Bain's foot.

It is in my opinion appropriate for a fact-finder to accept that David’s foot did not make these prints. The footprints are direct evidence of who the killer was.

The other evidence in the case is consistent with guilt or with innocence. Taken together, in my opinion, and remember I am for the moment ignoring the footprint evidence, the other evidence amounts to proof beyond reasonable doubt that David was guilty. In reaching that conclusion I use a Bayesian approach and assess probabilities on a commonsense basis as best as I can. That method is acceptable in the absence of more formal statistical data. This is why it was reasonable for the Robin Bain supporters to argue that David was guilty. It is also why the Court of Appeal was right in 2003 to conclude that on the evidence before it David was guilty. The footprint evidence in its final form was unknown then (see para 156 of the Court of Appeal’s judgment). The Privy Council corrected the Court of Appeal on the legal grounds of how an appellate court should deal with conviction appeals: not by coming to its own verdict but, if it finds an error that could have affected the fact finding at trial, by ordering a retrial if the prosecution wanted one. At the Privy Council the footprint evidence was approaching its final form and that is why the Board indicated that it was critical evidence, and both sides accepted that.

When the final form of the footprint evidence is included in the assessment it overwhelms the cumulative effect of the other evidence, and requires the reverse conclusion. Now, it can be concluded that what was unlikely did in fact happen. And now David’s innocence is proved beyond reasonable doubt. In Bayesian terms the likelihood ratio is so strongly in favour of the hypothesis that David is innocent that there is no real possibility that he is guilty.

If all the other evidence in the case proved guilt to a probability of 0.95, the footprint evidence would reduce that to 0.80; if all the other evidence in the case proved guilt to a probability of 0.99, the footprint evidence would reduce that to 0.96. So when I say there is "no real possibility that he is guilty" I do acknowledge that 0.96 may be proof beyond reasonable doubt for some people. The estimates of probabilities are used as follows. The first question is, what is the probability of getting these footprints, on the assumption that David is guilty? Experiments showed that it is most unlikely that David's foot could have left prints of that size, so this probability might be assessed as, say, 0.25, which seems rather generous to the prosecution. The second question is, what is the probability of getting these footprints, on the assumption that David is innocent? Because they fit well with the size of Robin's feet, this probability may be close to 1. The third question is, what is the ratio of these probabilities? This ratio, the likelihood ratio, reflects the probative value of the footprint evidence, and it is the probative value of the evidence for the prosecution case. It is, on these assessed figures, approximately 1 : 4. That is the assumption I make when I say that the footprint evidence reduces the probability of David being guilty. The assumption may be far too generous to the prosecution, because the probability that David's foot could have left a print of the size discovered could well be much less that 0.25: in none of the tests did his foot leave a print of that size. There is a possibility that a stretched sock may move under the sole of the foot so that its heel is closer to the toes, and so produce a shorter blood print than the foot wearing it, and I assume that the people who carried out the tests were alert to this.

More relevantly to a civil standard of proof, for a probability of David's guilt of 0.49, thus qualifying him for compensation, and for all the other evidence in the case suggesting a probability of guilt of 0.95, the probability of his foot leaving a print of the size found would need to be 0.05. That is, out of every 100 footprints David made, 5 would be of the size found at the scene. Given that there is no scientific evidence that he ever left the size of footprints found, it should seem reasonable to allow that he might do so no more than 5 times in a hundred. In science, measurements are routinely considered acceptable if they are in the plus or minus 5% range, although obviously greater accuracy is preferred. To disqualify himself for compensation he would need to leave footprints of the size found at least 6 times in every hundred footprints.

The frightening thing about cases of circumstantial evidence (that is, like this case without the footprint evidence) is that an item of direct evidence proving innocence might be missing. We are very fortunate that in the investigation of this case the police did not trample all over the scene, that they noticed the footprints, that they had them measured, and that they disclosed those measurements to the defence. On the critical evidence there is no reason to criticise the police.

Nor should the defence be criticised for not noticing the significance of the footprint evidence at the first trial. We are very fortunate that Mike Guest, David’s then lawyer, introduced Joe Karam to David, and that Joe sensed that David was innocent. We are fortunate that Joe launched his campaign and wrote his books and persisted with David’s cause.

My conclusion is that because David can prove innocence beyond reasonable doubt he is entitled to compensation without the need to show that anyone acted improperly.

[Update: on 2 August 2016 a second and final report was published. At [115] its author, the Hon Ian Callinan QC (formerly of the High Court of Australia), states: "... the question is not whether the case could or could not accommodate the presence of Mr Robin Bain's footprints, but the reliability and probative value of the evidence of the footprints themselves in the light of all the evidence." If a criticism of this is to be made it would be that it could mean that the question of what the measurements were is determined by all the evidence in the case. Indeed, Mr Callinan appears to consider evidence other than that of footprint measurements as part of his evaluation of the evidence of their length, and says at [328] that the footprints are "inconclusive". In my opinion it is necessary first to determine what the evidence is, before turning to the question of its probative value. Mr Callinan does not demonstrate why the footprint evidence does not have the importance that it was acknowledged to have at the Privy Council hearing. He neglects to get to grips with what the evidence is: the objective evidence is the experimental results obtained by Drs Walsh and "Sandilands" [Binnie sic, Sandiford], see Binnie at [248]-[252]. The range of prints obtained from a 300mm foot would be 288-310 (Walsh) or 300-315 (Sandiford). And the range for a 270mm foot would be 258-280 (Walsh). None of the results gave a print shorter than the foot by 15mm which is what would be needed on all the assumptions favourable to the Crown and allowing a range of error for the measurement at the scene of plus or minus 5mm. The conclusion should have been that David was innocent, certainly on the balance of probabilities. It is easy to find support in the circumstantial evidence for any conclusion, but the footprints were direct evidence of who the killer was.]

Verdicts on appeal - and appeal verdicts - in Victoria

The interpretation of "substantial miscarriage of justice" in s 276(1)(b) of the Criminal Procedure Act 2009 [Vic] was the subject of Baini v The Queen [2012] HCA 59 (12 December 2012).

The decision will be of only limited interest where legislation differs, as for example it does in s 232 of the Criminal Procedure Act 2011 [NZ]. Here there is a definition of the required "miscarriage of justice", and what the appellate court needs to be satisfied of is that an error, irregularity or occurrence in relation to or affecting the trial has created a real risk that the outcome of the trial was affected.

But back to Baini, where the High Court of Australia split and two judgments were delivered. The majority, French CJ, Hayne, Crennan, Kiefel and Bell JJ, allowed the appeal and remitted the case to the Court of Appeal for it to determine whether, having regard to the whole of the evidence at trial, there could have been no reasonable doubt about the appellant's guilt.

Gageler J, dissenting, would have dismissed the appeal because the appellant had not shown that there was a reasonable possibility that the guilty verdicts would not have been returned if the error at trial had not occurred.

Those different conclusions reflect different interpretations of s 276(1)(b). The majority took a fresh start approach to the words of the enactment, whereas Gageler J read it in the context of the common law and its interpretation of common form appeal legislation. The difference between the judges was not merely in the application of s 276(1)(b), but in its meaning.

Central to the difference is the gritty problem of the extent to which appellate judges should act like jurors (see, for discussion, here, and links therein). Obviously in some appeals they have to, if it is submitted that a verdict was unreasonable. But here that was not the submission. When an appellate court is persuaded that an error at trial has given rise to a real possibility that a verdict was affected adversely to an appellant, should it thereupon quash the conviction or should it go on to look at the full record of the case and decide for itself whether the appellant was guilty?

Of course we are not considering different cases where an error at trial was sufficiently fundamental to make the trial unfair to the defendant. There is no doubt that if it did the court would quash the conviction. No, we are considering here lesser errors, but ones sufficient to give rise to a loss of a real chance of a more favourable outcome.

Whereas Gageler J found that the legislation changed the law so as to make the Weiss approach no longer appropriate in Victoria, the majority did not. Weiss, it will be recalled by the relatively few people who study this sort of thing, requires the appeal judges to in effect reach their own verdict. Although Gageler J thought that the legislative basis for Weiss had disappeared [46], [61], [67], the majority recognised that the new legislation left room for the Weiss approach by, as a matter of interpretation, including the inevitability of the verdict [15], [39].

The difference is between what the jury might have thought if the error had not occurred (Gageler J) and what the appeal judges think (majority) about the verdict despite the error.
I expect that our s 232 will be interpreted on its own terms without resort to the common law history concerning the method for deciding conviction appeals. The significant point is that the inquiry stops with a decision that an error (etc) has created a real risk that the outcome of a trial was affected, because that is all that this part of the definition of miscarriage of justice requires.

The unreasoned consequences of unreasonable search

Lawful powers must be exercised reasonably, and it must be reasonable to have resort to those powers. An illustration of unreasonable resort to lawful powers is R v Aucoin, 2012 SCC 66 (30 November 2012).

Upon apprehending the defendant for traffic offences involving licensing and alcohol the officer decided to detain him in the police vehicle because he was concerned that the defendant might run away. A pat-down search of the defendant was carried out prior to this detention. Cocaine was found in a quantity that subsequently supported the defendant's conviction for possession of cocaine for trafficking. There were alternative and reasonably available ways in which the officer could have addressed his concern about the defendant running away.

All members of the Court held that it was on the particular facts unreasonable for the officer to exercise his power to carry out the search and detention, but only a majority held that the evidence was admissible.

On the facts, backup was close at hand so there was no reasonable necessity to detain the defendant in the police vehicle. There was disagreement over the extent of the balancing required to determine reasonableness: the majority appear to accept that regardless of the seriousness of the offence for which the defendant was initially stopped, if detention was reasonably necessary to prevent flight there was no need to take account of the seriousness of the offence: Moldaver J for the majority at [43], disagreeing with LeBel J for the minority at [86].
It is useful when majority judgments directly address points made in minority judgments. Unfortunately such cross-referencing did not occur on the critical issue in the case: the admissibility of the improperly obtained evidence.

The majority addressed briefly the decision process required by R v Grant, 2009 SCC 32 (CanLII), 2009 SCC 32, [2009] 2 S.C.R. 353 (discussed by me here and here and here and here). It seems that the critical point of difference from the minority assessment is that the majority accepted that the officer was not simply applying his standard procedure for more serious offences when he detained the defendant [45], [48]. The minority view of the evidence contrasted sharply, referring to the constable's evidence about his standard practice in relation to detained motorists [101] and this, for the minority, was evidence of a pattern of abuse.

How do appellate judges arrive at such different assessments of the evidence?

All judges agreed that the defendant's expectation of privacy in relation to the contents of his pockets was high, but the minority mentioned too the aggravating feature of questioning the defendant about the contents of his pockets which introduced the right to be protected against self-incrimination [104]. This did not feature in the majority's analysis. Why not?

The majority said that the impact on the defendant's privacy rights was significant, but no more so than society's interest in having the case tried on the merits [51]. There is no explanation of how that evaluation was reached. Neither is there reasoned support in the minority judgment for its opposite conclusion on admissibility. What was the likely starting point for sentence for the cocaine offence (the defendant received a sentence of two years' imprisonment)? Probably it was not in the medium-to-high range, so how was society's interest measured? What relevant decisions supported the conclusion? What do other cases say about the defendant's privacy interests as against the seriousness of the detected offending?

Unpredictability comes from the vagaries of judicial assessment of the evidence and of the relative strengths of rights.

Culpable stimulating

Information can include mis-information: Mansfield v The Queen [2012] HCA 49 (14 November 2012) where insider trading included trading in false information. You can see how similar the policy here is to that which supports criminalising an offer to supply a controlled drug if in fact there was no drug but only an intention to deceive the would-be recipient. The harm is stimulating in another person an interest in unlawfully gaining an advantage.

Far from its best work

I have long regarded (for example here, here, here, here, here, here) Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 as being far from the High Court of Australia's best work. Even that Court seems to be unenthusiastic about applying it. Support for this impression is to be found in Wednesday's decision in Cooper v The Queen [2012] HCA 50 (14 November 2012). Weiss requires an appeal court to apply the proviso if, on examination of the record, it is convinced beyond reasonable doubt that the defendant was guilty. That is, as Heydon J put it in Cooper at [85],

"...when the proviso is under consideration, the appellate court performs the role of the trier of fact."

In his dissenting judgment in Cooper Heydon J faithfully carried out that role and his detailed examination of the evidence and the conduct of the trial led him to conclude beyond reasonable doubt that the appellant was guilty.

The other judges, however, jointly held that there should be a retrial. Although they gave lip-service to Weiss, their approach was not that of acting as fact-finders. Looking at what the jury did is appropriate when considering the preliminary issue of whether there was a miscarriage of justice:

"[30] ... it cannot now be demonstrated that the jury must have rejected this alternative case. Demonstration of that conclusion depends upon the jury having rejected what the judge's instructions had identified as an available view of the facts."

This was the reason for rejecting the respondent's suggestion that the error was not a miscarriage of justice because it was immaterial. Then it was necessary to consider whether the miscarriage of justice was substantial. The proviso would apply if it was not substantial, and it would not be substantial, according to Weiss, if the evidence convinced the appeal court beyond reasonable doubt that the appellant was guilty. But the majority did not embark on the detailed consideration of the record that is required of fact finders. Instead it relied on concessions in argument [26], and it gave no reasons for concluding that an appeal court could not exclude a reasonable doubt about the appellant's guilt [27].

The error at trial had been, as was conceded on first appeal, giving the jury an alternative route to conviction that was not properly available. It seems elementary that in those circumstances the trial had not been according to law and a retrial was required. The defendant had not received a fair trial. Heydon J skirted around this point at [51]-[55] by saying the appellant had not cited authority for the proposition that this error was fundamental. Obviously this is mischievous:  the common law wouldn't have got started if authority was needed for every submission.

In legislation that will soon come into force in New Zealand we have abolished the proviso and established new criteria for allowing appeals against conviction: Criminal Procedure Act 2011, s 232. How would Cooper have been decided under that provision?

The short answer is that under s 232(4)(b) the trial was unfair and the appeal against conviction had to be allowed.

A longer answer is that under s 232(4)(a) the error at trial had created a real risk that the outcome of the trial was affected. Some jurors may have reasoned improperly, and there was a real risk that if they had applied the correct law they would have acquitted the defendant.

But how is this risk to be assessed? The legislation focuses on the outcome of the trial. The question is what the fact-finder at trial might have done, not what outcome appears appropriate to the appeal judges.

This approach to conviction appeals preserves the defendant's right to have guilt or innocence decided at a properly conducted trial. As everyone knows, appeal judges – confined as they usually are to the written record – make dreadful fact finders.

Acting in the client’s interests but against instructions

A cautionary note from the Privy Council on the timing of a challenge to the defendant's fitness to stand trial: Taitt v The State (Trinidad and Tobago) [2012] UKPC 38, at [18]:

"In Nigel Brown v The State
[2012] UKPC 2, para 68 the Board expressed its concern at the fact that reports as to the appellant's ability to instruct counsel were produced ex post facto and without any explanation as to why medical evidence on the issue of fitness had not been produced in the courts below. It wished to make clear that it should not be assumed that even highly persuasive evidence produced for the first time at the final appeal stage would be admitted: para 70. The fresh evidence has been admitted in this case so that it may be scrutinised. But the Board is just as anxious to make it clear that it will only be in an exceptional case that it will entertain the argument that the appellant was not fit to stand trial because he is of low intelligence due to a learning disability when the point was not taken on his behalf by counsel at his trial. It is the responsibility of counsel to assess whether his client is fit to stand trial. He is in the best position to judge at first hand whether his client is able to understand the charge that has been brought against him and to give instructions for his defence. His conclusion that his client is fit to plead will normally be given great weight. The Board will not permit the introduction of the issue for the first time at the final stage unless the evidence points very clearly to the fact that there has been a miscarriage of justice."

A finding prior to or during a trial that a defendant is unfit to stand trial is usually, perhaps always, made on the balance of probabilities: see for example s 14(3) Criminal Procedure (Mentally Impaired Persons) Act 2003 [NZ]. Counsel may therefore be in the position of having to act for a client who only by a narrow margin fails to establish unfitness to plead. There will in such cases be a strong temptation, in the event of a conviction, to look for more persuasive evidence than was offered earlier to establish unfitness. The Privy Council recognises that where the issue was raised at first instance the position on appeal is quite different to that where the issue was not raised. A decision by experienced counsel not to raise at first instance the issue of fitness to plead will be given great weight. Raising the issue at first instance may require counsel to go against the client's wishes and to insist on expert assessment. Mentally impaired clients may be insulted by any suggestion of disability (recognised at [14] of Taitt). Here the obligation to follow instructions may be overtaken by the obligation to act in the client's best interests from the perspective of avoiding a conviction.

A Canadian catch-up

Now it's time to catch up on some recent cases from the Supreme Court of Canada:

R v Prokofiew, 2012 SCC 49 (12 October 2012) concerns counsel for a co-defendant's comments on D's failure to testify and when the judge should direct the jury on D's silence. It was wrong for counsel for the co-defendant to ask the jury to infer D's guilt from his silence at trial. The exercise of a right to silence is not evidence of guilt. The jury could be invited to infer that evidence was credible and reliable if it was uncontradicted, but the judge should direct the jury that there is no requirement that uncontradicted evidence must be accepted.

R v Cole, 2012 SCC 53 (19 October 2012) discusses when there may be a reasonable expectation of privacy in relation to the contents of a computer that was provided by an employer for use at work. The circumstances had to be considered in their totality and ownership was not determinative. An expectation of privacy may be reduced but still reasonable. Here D's reasonable expectation of privacy was breached, but applying the test of admissibility required by s 24(2) of the Charter, admission of the evidence did not bring the administration of justice into disrepute.

R v Boudreault, 2012 SCC 56 (26 October 2012) decides that the offence of having care and control of a motor vehicle while impaired requires a realistic, not merely a theoretical, risk of danger, and whether this exists is a question of fact. Here D fell asleep in a parked vehicle while sitting in the driver's seat with the engine running so that the heater worked, while awaiting the arrival of a taxi. There was held to be no real risk of danger on these facts.

R v Nedelcu, 2012 SCC 59 (7 November 2012) focuses on when evidence is "incriminating". It is not incriminating if it does not tend to prove guilt but merely questions D's credibility. Here, evidence disclosed during pre-trial civil procedures was sought to be used in a criminal trial.

Dineley v R, 2012 SCC 58 (2 November 2012) concerns when retrospective legislation can be interpreted to apply to current proceedings. The key is not whether the legislation is procedural or substantive, but rather whether it changes substantive rights. Retrospective effect is only given – where this is a question of interpretation – in exceptional circumstances if it affects vested or substantive rights. Here the legislation purported to remove a defence.

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).