Indulgence

If you’re on holiday now, as I am sure you think you should be, it can only be helpful for me to share my favourite holiday reading. This is not to indulge in autobiography, just to indulge in indulgence.

My holiday reading, for at least 10 years from the early ‘90s, was enlivened by three authors who each produced a new novel annually. Robert G Barrett, Kinky Friedman, and Donna Leon. Barrett has departed the planet, Friedman seems to think his oeuvre is complete, and Leon is still at it.

Her latest, Unto Us a Son is Given, I have just finished. It is the best-written of all her (my count) 29 novels. She has toned down her tendency to preach, although there is occasionally a preoccupation with the sexually unusual. Often she picks up on current concerns in Venice, but this one isn’t particularly localised in that way. An entertaining read for people who want to be reminded of Venice.

The lawyer in me finds fault with this sentence at the end of Chapter 7:

“The man walked through the door and pulled it closed.”

See what I mean? This is a difficult sentence. The man walked through the doorway, not through the door which is the thing he pulled closed. Polysemy yes, not “wrong” but distracting.

Sometimes I wonder too about her accuracy, or at least her choices. For example, she has her protagonist walk, at the beginning of Chapter 8, taking his usual route, to Rialto from his office at Rio San Lorenzo, via Campo SS Giovanni e Paolo, whereas one would have thought it more convenient to get there via Campo Santa Maria Formosa. I’m not showing off - anyone can use a map, but, to be frank, I find it more convenient to go that way.

But I can show off: a current concern in Venice is the route taken by the large cruise ships, one of which got out of control last week and injured some Australians and a New Zealander (and for a reasonable assessment of the incident, see the magnificent blog by Erla Zwingle). They go past my view of the lagoon several times a day ...

Kinky Friedman is by far the wittiest of these three, and of many others. He sets most of his stories in New York, with a cast of characters closely resembling his real-life friends, and starring himself as a private eye. One, Ratso, appeared in Martin Scorsese’s Rolling Thunder Review (Netflix), and although he seems not to have particularly endeared himself to Dylan he does mention Kinky Friedman as one of the three great song writers. You only have to hear his “They Ain't Makin' Jews Like Jesus Anymore” to know what Ratso means. Friedman’s description of Ratso in The Love Song of J Edgar Hoover, p 85:

“... rumours of his sartorial improvement had been greatly exaggerated. He still looked pretty much like Ratso. Pink trousers with Elvis Presley song titles scrawled all over them in hot purple. Unfashionable and unpleasant-looking racoon coat and coonskin cap with the creature’s head attached, eyes sown shut. Antique red shoes which, I knew from past experience, had once resided on the wheels of a man who had gone to Jesus.”

Ratso was smoking a cigar, and Friedman comments on its high quality. Ratso replies:

“ ‘Yeah. These are top-drawer. Sorry I don’t have another one to give you. My lawyer got this out of a special humidor that was given to him by a former client.’

‘I’m glad to see they’re good for something.’

‘Humidors?’

‘No,’ I said. ‘Lawyers.’ ”

Barrett wrote stories for men, or at least from a strongly male perspective. His approach was to give a detailed account of the daily activities of his protagonist, Les Norton, including his sexual routine which had little variation but which apparently also had some appeal for a female readership. Given the detail, I found it strange that in none of his numerous books does Les Norton, or anyone else, masturbate. Strange, given the minute details of practically everything else. Friedman, in contrast, embraces the topic. Here, in the book mentioned above, at p 81, we find:

“ ‘There’s got to be something I can do.’ 

‘You can practice masturbating with your left hand,’ said Rambam, as he headed for the door. 

‘I’m afraid that’s impossible,’ I said to his large, retreating back. ‘My penis sloughed off when I was working for the Peace Corps in the jungles of Borneo.’ 

‘That would explain a lot of things.’ ”

I find that Barrett and Friedman are re-readable, but Leon, although enjoyable for fans of Venice, is more of a oncer.

Well, it’s 28 degrees in Venice as I type this. All one can do is head for the fridge for another of those cold bottles. I left and closed the door.

_____________________________

Update April 2020: In her latest, Trace Elements, Leon is more competent with doors. For example, Chapter 19 page 188: “At the door, he stepped around and ahead of her, pulled it open, and closed it after them.” But this raises something I found a bit irritating about this novel: there is too much detail about small things, and this limits our opportunity to exercise our imagination. At least there is no walking home via Campo SS Giovanni e Paolo (see the more rational route described in Chapter 8, page 64). Still, elaborate descriptions can have a point, even if, in Leon's case, the point may not be particularly relevant to the book's themes. For example, see the the eating of dinner in Chapter 7, page 55-57, which includes “Brunetti selected a few slices of tomato, set them on his plate, and added a few leaves of basil: that done, he quickly speared basil, mozzarella, and then a slice of tomato.” The colours of the Italian flag, we are told. Why do we need to know that?

Attention to eating techniques occurs in many novels, of course. The genius Don DeLillo in White Noise, Chapter 23, page 175 gives us: “We watched him use his spoon to mold the mashed potatoes on his plate into the shape of a volcanic mountain. He poured gravy ever so carefully into the opening at the top. He then set to work ridding his steak of fat, veins and other imperfections. It occurred to me that eating is the only form of professionalism most people ever attain. … He immersed a piece of steak in the gravy that sat in the volcanic depression, then put it in his mouth. But he did not begin chewing until he’d scooped some potatoes from the lower slopes and added it to the meat. A tension seemed to be building around the question of whether he could finish the gravy before the potatoes collapsed.”

Whereas Leon uses the image of the flag for no particular reason, DeLillo's volcano evokes his novel's Airborne Toxic Event and its theme of Death. To be fair to Leon, Barrett also uses the walk-through-in-minute-detail technique, but in his use it is engaging, perhaps because it includes fist fights and sex. There you go, Ms Leon.

Try again. Fail again. Fail better.

Haven’t we seen it all before? A person wants something, they are refused with reasons. They make another request, supposedly in the light of those reasons, and they get what they want even if the second request is flawed.

This must be a psychological thing on the part of the decider. It might be a simple planning issue - whether to give permission for a helicopter landing site, for example, or a deportation surrender matter that the Minister of Justice has to decide. It’s a sort of regression: a person who is criticised on one performance of a test, is expected - even assumed -  to do better on a further similar test, but instead they tend to regress to their average performance: see Daniel Kahneman, Thinking, Fast and Slow.

A spectacular example of the latter, deportation, occurred in Kim v Minister of Justice [2019] NZCA 209. The Minister ordered deportation. The High Court on review said the Minister’s decision was flawed and referred the issue back. The Minister considered more evidence and ordered deportation again (cf, Kahneman’s repeated test), and the High Court on review said OK, you got it right this time (cf, Kahneman’s optimistic expectation of improvement), but on appeal the Court of Appeal said, no, High Court, although you were right with the first review, you got the second review wrong. (This is another regression: the High Court’s good performance of the first review was followed by a poorer performance of the second review.) The Court of Appeal ordered the Minister to reconsider the matter with particular reference to specific points (listed at [278]).

Wearing a decision-maker down with repeated applications, a practice learnt very early in life, is successful often enough for it to be an enduring behaviour. At least the Court of Appeal in Kim didn’t trouble the High Court by remitting it back, instead it left it with the Minister (a different person now) to say, “Oh, merde, not this again.”

Kim is particularly interesting for its observations on information about the criminal justice system in the People’s Republic of China, and for its recognition that a real risk that the person would be subject to an unfair trial is sufficient to refuse deportation (at [176]-[180] and [278(e)]).

Update: On 20 September 2019 the Supreme Court granted leave to each party respectively to appeal, and to cross-appeal: Minister of Justice v Kim [2019] NZSC 100.

And on 4 June 2021 the Supreme Court delivered a substantive, but not final, decision: Minister of Justice v Kim [2021] NZSC 57.

And on 13 April 2022 the Supreme Court, after receiving further information, assurances, and submissions, reinstated the Minister's decision to surrender Mr Kim for extradition: Minister of Justice v Kim [2022] NZSC 44.

Conviction appeals from judge-alone trials: review or rehearing?

On one of those subtle issues that would only occur to lawyers, the Supreme Court has decided how appeals under s 232(2)(b) of the Criminal Procedure Act 2011 against convictions in judge-alone trials, where the issue is the judge's assessment of the evidence, should be approached: Sena v Police [2019] NZSC 55.

They are not reviews, they are rehearings.

The difference? Reviews make allowance for the notion that reasonable minds may differ, and that, even if the appeal court might have reached a different conclusion, the judge’s verdict will be upheld if it was within the bounds of what was reasonable. Rehearings require the appeal court, once persuaded by the appellant that an error has occurred, to reach its own conclusion on the record of the evidence. But rehearings are not fresh hearings; the appeal court will recognise that in making findings of fact the trial judge had the advantages of seeing and hearing the witnesses, and had an overview which might not be available to appeal judges who may be given by counsel a rather selective view of the evidence. Where credibility is in issue, the appeal court will exercise “customary caution” (at [38]).

On rehearing, the appeal court will focus on whether it can be satisfied of guilt beyond reasonable doubt. This differs from a verdict insofar as if the court is not so satisfied it will usually order a new trial, rather than enter an acquittal, although the latter course may be taken in appropriate circumstances, such as long passage of time, the completion of a sentence, the unavailability of witnesses, or the compelling nature of fresh evidence of innocence.

Sena does not decide how appeals under s 232(2)(a) from jury verdicts should be approached. The Court was careful to specify that it was dealing with appeals from judge-alone verdicts.

Section 232 is silent on whether either of these sorts of appeals are reviews or rehearings. The Court’s extensive survey of the previous law and the various interpretations of earlier legislation demonstrates how the correct approach to these appeals has not always been clear.

There was some mention of appeals against verdicts in jury trials, under the old law. This was relevant because the first appeal in Sena had been to the High Court, which had applied the jury verdict approach to this judge-alone verdict (at [2]).

The old law on the reasonableness of jury verdicts had been considered by the Supreme Court in R v Owen [2007] NZSC 102, which I noted here. As summarised in Sena, under that law “the ultimate issue for the appellate court was whether the jury could not reasonably have been satisfied of guilt beyond reasonable doubt” (at [14]). This required exercising a review function, not the appeal court substituting its own view of the evidence for that of the jury.

So we are left wondering whether there will continue to be a difference between appeals from judge-alone verdicts (now, rehearings) and appeals from jury verdicts (used to be review, but what now?)

A clue, almost so subtle that if you look at it directly it disappears, is in footnote 43 of Sena.

No one is saying that the review-or-rehearing classification is watertight for all kinds of appeal. Appeals brought under s 232(2)(c), claiming a miscarriage of justice for any reason, might involve issues concerning the correctness of a trial judge's exercise of a discretion together with other issues that are appropriately considered by way of rehearing.

[Update: For application of Sena, (to a case decided before the judgment in Sena was delivered), illustrating a failure to give adequate reasons for convictions in a  judge-alone trial, see Webster v Police [2019] NZHC 1335.]

Book review: Doing Justice by Preet Bharara

A book with a blurb that I agree with:

“Simply, utterly brilliant ... Bursting with humility and humanity.”

You may have to make allowance for the fact that Mr Bharara is an American, with all the hubris that that implies. Outside America (meaning, the United States of America) we might get a little tired of being told how wonderful Americans are, with the best of everything. A claim that Mr Bharara supposes is right is "Nobody does trials like Americans” (p 264). Many of us will mutter, “Just as well.”

The subtitle of this book is “A Prosecutor’s Thoughts on Crime, Punishment and the Rule of Law”. This, matched against the title, raises the question, are prosecutors the ones who “do” justice? If they are, doesn’t anyone else do justice too? What does Mr Bharara mean by “justice”?

“Justice is a broad and hazy subject ... people will regard a result as just if they regard the process leading to it as fair and if they believe the people responsible for it are fair-minded ... [it is] a way to reach the truth.” (pp xiv – xv)

But truth isn’t always the outcome: the high standard that must be reached by the prosecutor means that many guilty defendants will escape conviction. And the prosecutor’s proper reaction to such outcomes, when trials have been properly conducted, is to say “the jury has spoken, justice was done, and we move on.” (p 294) “That nervous feeling you have when the jury comes out [to return its verdict], prosecutors? That is justice working. Unpredictable verdicts, what a luxury.” (p 283)

So it is the process, rather than the result, that either is or is not just, and more people than only the prosecutor are involved. Each participant is entitled to an opinion, of course, although their sweeping generalisations must be read with their perspectives in mind.

Even from the short passages I have quoted you can see that the book is written in accessible prose, suitable for a wide age-range readership. It brings to mind some of the dangers that those who try to make justice work must strive to avoid: improper charging and plea bargaining, uneven rewards for co-operators (“snitches”), concealment of enforcement officers’ misconduct, over-preparation of witnesses for trial, erratic judicial behaviour, and the brutality of prescribed sentencing regimes.

There is, too, plenty of advice for lawyers. Most important is the need to develop listening skills. And, relatedly (no spoilers), flashes of humour (pp 262-263). A clever retort to judicial rudeness is also memorable (p 247). And lots of humanity, including concern for conditions in prison (“Rikers Island is a broken hellhole” p 308), and humility (his daughter’s description of the author on p 279).

Few criminal lawyers would not want to read this book by the former senior New York prosecutor (technically, U.S. Attorney for the Southern District of New York), who has the distinction of having been asked to stay on in his job by the President, only to be sacked by that same President (guess who) after refusing to take a phone call that might well have been one that the President should not have attempted to make.

Update: For an American defence lawyer's reaction to the book, see Clive Stafford Smith, Aiming Low, Times Literary Supplement July 30 2019.

The Book of Why by Judea Pearl and Dana Mackenzie

Perhaps, after hearing rumours that artificial intelligence (AI) will replace judges and juries, you have picked up a book called The Book of Why – The New Science of Cause and Effect by Judea Pearl and Dana Mackenzie (2018). This sounds like just the thing to bring you up to speed on that topic.

The book is not really about replacing judges and juries, although it does deal with how to get computers to find causes by analysing data. Conventionally, unless a randomised controlled experiment has been conducted, data produced in an experiment says nothing about causes, only about correlations, although observational data, such as (for example) may be gathered in surveys and analysed by statisticians, can generate conditional probabilities from which causal effects are inferred. The main focus of the book is on how to avoid the need for randomised controlled experiments, and yet be able to say something about causes, or at least how to identify when there is no alternative to conducting a randomised controlled experiment to determine causal effects.

What is of potential interest to lawyers, it seems to me, is the diagrammatic representation of causal relationships that can arise in given circumstances. Can the kinds of diagrams described in this book give lawyers tools for analysis of issues in trials, where the fundamental question will be whether the defendant caused the relevant harm?

Here I have borrowed from Chapter 4 some of Pearl and Mackenzie’s examples of the use of causal diagrams. What I borrowed is the diagrams, and I have tried to apply them to the facts of cases I have imagined. Any mistakes are therefore mine, not the authors’. Decide for yourself whether this kind of approach may be of assistance in your work. There are, as the authors acknowledge, other ways of addressing whether cause has been established, but here is the causal diagram method, inasmuch as I currently understand it.

The authors claim the method is such fun that it can be thought of as a game.

The letters represent events or states of affairs (or, as one could say, variables, in which we may have varying degrees of belief), not people. I illustrate this in Game 1 for X and A, just so you get the hang of it.

Game 1

                                       

Defendant pulls trigger (X = this action by defendant)), gun fires (A = what the gun was caused to do), cartridge casing ejects (B), bullet hits victim (Y).

Here there is nothing to block the causal chain from X to Y. B is irrelevant to whether the firing of the gun caused the bullet to hit the victim.

Game 2

                                          

The prosecutor charges the defendant with participating in the manufacture of an illegal drug on two occasions, C and Y. The prosecutor's case is that the defendant had an appetite (A) for the illegal drug and that this appetite grew (X). On each occasion the appetite for the drug caused the defendant to collect (B and E) quantities of a substance that could be used to make the illicit drug, and his possession of this substance caused him to be accepted as a participant in the manufacturing process. However, the defendant explains (D) the accumulation of the substance by saying that the appetite is for that substance and that there was no purpose in accumulating it except to consume it.

Blocking (constriction) of a causal chain can occur if there is more than one possible cause for an event or a state of affairs. Here, there is a blockage in the prosecutor's causal chains A to C, X to Y, and B to E. B to E is blocked by the defendant’s explanation D. If the blockage is strong enough to maintain the causal direction D to B then C will be irrelevant to Y and A will be confined to enhancing X, which again will be irrelevant to Y because of the blocking of E. X to Y is blocked if D to E is of sufficient strength (ie if it carries sufficient credibility to raise a reasonable doubt about X to Y).

Game 3

                                      

                                           

This diagram can be taken in stages to reflect the course of a trial. The prosecutor alleges the defendant hated (X = the defendant's emotion) the victim, and this caused the defendant to kill (Y = what happened to) the victim. Hence the first step is the arrow from X to Y.

The defendant claims that it was another person who both (B) caused the defendant to hate the victim and killed the victim. There is now an arrow from B to Y. This creates a back-door cause, B to Y, of the victim’s death by the hand of that other person, which weakens the causal connection X to Y.

The prosecutor replies by adopting the defendant's allegation that the other person caused the defendant to hate the victim. Hence the arrow from B to X. The prosecutor argues that the causal chain B, X, Y strengthens the link X to Y.

The defendant adduces evidence of an alibi, that he is identified by security camera footage as being somewhere else at the time the victim was killed. This is represented by the arrow from X to A. The defendant hopes this will reduce the strength of the alleged causal link X to Y.

The prosecutor replies by challenging the identification of the defendant in the footage and says it really showed the other person who hated the victim. This is represented by the arrow from B to A.  

If the arrow B to A were to be reversed, because the defendant's alibi made it more likely that the other person who hated the victim was the murderer, there would be a causal chain A, B, Y, which the defendant would hope would reduce further the alleged link X to Y. The prosecutor's attack on the defendant's alibi was an attempt to block the suggestion that the other person was the murderer.

Game 4

                                         

Prosecutor alleges the defendant has large accumulated debts (X) which have caused the commission of the present fraud (Y), relying on propensity evidence: when the money problems began (A) they led to the defendant committing fraud (B), and contributing to that earlier fraud was a propensity for dishonesty (C), which also caused the presently alleged fraud (Y).

The proposed causal chain generated by the propensity evidence is blocked by C to B. This reflects the legal position that propensity alone is insufficient to prove current offending. There must be some evidence of current offending before the propensity evidence has anything to corroborate. If there is some such evidence, the admissibility of the propensity evidence will depend on the extent to which the prosecutor can reverse the causal link from C to B, for example by showing that previous commission of fraud (B) strengthened the defendant’s propensity for dishonesty. If the link then went from B to C, there would be no blockage in the causal chain X, A, B, C, Y.

Game 5

                                         

This is said to be a more realistic version of Game 4, with two new causal links B to X and X to Y. Using facts like those in Game 4, X to Y is the evidence necessary before propensity evidence has anything on which to operate (that is, to corroborate). B to X is the allegation that previous fraud (B) has caused present indebtedness (X), for example by resulting in reparation orders of a magnitude beyond the present means of the defendant.

Now the alleged causal link X to Y is supported by A, X, Y, and by A, B, X, Y, and by C, B, X, Y.

So, how secure is the position of judges and juries in coming to verdicts? Computers can't perform experiments, they can't use what the authors call "do-operators" to change things in the experimental environment. Where there are causal chains, data may be available to be used to generate conditional probabilities which AI can handle. But where a blocked chain cannot be ignored as being irrelevant, an experiment will be necessary to provide more data. A computer could not, therefore, play Game 2 because of the blocking effect of D (which would require an investigation of the likelihood that the defendant did consume the substance), or Game 3 because of B to A (unless it was able to compare the video image with the defendant, although there may be legal objections to that, or with the other person), or Game 4 because of C to B. Judges and juries surmount these difficulties with something ineffable called judgement.

Update: for more on AI and probabilities, including reference to this book by Pearl and Mackenzie, see the review by Paul Taylor in London Review of Books, 2021 vol 43, p37.

Go back!

What should be done about the failure of the Psychoactive Substances Act 2013 to control unapproved psychoactive products?

Unapproved psychoactive products should be controlled drugs. As such, their classification should follow recommendations of the Expert Advisory Committee on Drugs, and pending any advice to the contrary they should be Class C controlled drugs.

An arguably premature revision of the mental elements for liability for drug offences was undertaken in Cameron v R [2017] NZSC 89, [2018] 1 NZLR 161 (not freely available online, strange to say). [Background: perhaps the delay in its availability was due to outstanding proceedings against an absconding defendant keeping suppression orders in force until his death, reported on 2 March 2019 - although there had been extensive media coverage in 2018 of the entire case up to sentencing, with everyone named. No, that's not the reason. There is no reason.] The new requirement of knowledge that the substance was a controlled drug, or of recklessness as to its being a controlled drug, is too narrow in that it pinpoints “controlled drug”. This means knowledge of, or recklessness as to, the substance being scheduled in the Misuse of Drugs Act 1975, including knowing it by a name that is a common term for a scheduled substance (see Cameron at [40], [93]).

The problem here is that under this requirement it would be a defence for a person to have thought that the substance was an unapproved psychoactive product (there are currently no approved products, and none are in the process of being tested for approval).

Under the pre-Cameron law, the mental elements for guilt included knowledge that the substance was a drug that had an effect on the mind. This requirement, settled for some 30 years after some interesting cases were digested, did not give rise to intrinsic difficulties of proof. If anyone asked what I thought, I would say, go back to that. Cameron is suited to an anticipated future in which there are approved psychoactive products and it is necessary to recognise the innocence of people who honestly think they have such a product when in fact they have a controlled drug. On this view, we have here a rare example of reality not having caught up with the law.

As far as controlled drug analogues are concerned, we should wonder whether the legislated criterion of "substantially similar" structure to a controlled drug is really on point. The purpose of the Act is to prevent the harm that is caused by the use of controlled drugs, and substantial structural similarity serves (whether accurately or not, we don't necessarily know) as a proxy for that. In any event, for liability, mens rea should address the effects of the substance when used. If requiring knowledge of, or recklessness as to, structural similarity seems somewhat absurd (it has never been necessary for a defendant to know that a substance was an isomer, a salt, an ester or an ether of a scheduled substance) courts should be more comfortable assessing whether a defendant knew of, or was reckless as to, the effect of the substance on the mind of a user. People who manufacture and distribute such substances should be well aware of their effects when used, and of the similarity of those effects to those caused by use of controlled drugs. So, for offences in relation to analogues, there is no reason to treat the mental elements for liability as being any different from those applicable to other controlled drug offences. Our current legislation follows international precedents, at least as to definition of the actus reus, but that should not stop the search for improvements in the case law definition of the elements of mens rea.

It's a matter for you ... but you may well think ...

The High Court of Australia has accepted that, as a general rule, judges presiding at jury trials should not comment on issues of fact: McKell v The Queen [2019] HCA 5 at [31], [46]. Comment should only be used to correct an error or restore balance: [53]-[55]. The power to comment is to be used to ensure trial fairness, and is not to be used to add force to one side so as to sway the jury: [3].

It is important, obviously, that perceptions of trial fairness be kept consistent internationally. One reason for this is so as not to impede extradition processes.

The Supreme Court of New Zealand may well be alert for an opportunity to revisit the approach to judicial comment set out in R v Keremete CA247/03, 23 October 2003, applied recently in B v R [2018] NZCA 80.

Keremete tolerates a contradiction that is dispensed with by the general rule in McKell. This is that the judge may express in strong terms a view on the facts, while at the same time telling the jury that it is the sole arbiter of the facts. Keremete accepts a position in which strong comment can be consistent with fair presentation of the issues while at the same time leaving the issues of fact to the jury. Muddled, to say the least.

If jury trial judges disobey McKell, appellate courts will have to grapple with summings-up like that considered in B, where the court had to accept that there was prima facie lack of balance, but decided that in context the combined significance of the errors was considerably reduced, to the point where the court was able to conclude there was no unfairness.

This cleansing-by-context process is unsatisfactory, not the least because it is mysterious. B was not a case where comment was aimed at correcting an error or restoring an imbalance. It can only have been speculation for the court to conclude that there was no real risk that jurors had been influenced by the improper judicial comments. Trial outcome and trial process are separate matters, and it would be wrong to think that, because a verdict seems to have been correct, it was arrived at fairly. An analysis analogous (and here I stretch a bit for an analogy) to the requirements for the defence of withdrawal may be appropriate in determining whether a judge has restored the balance after making an inappropriate comment: compare Ahsin v R [2014] NZSC 153 at [140], applied in De Soto v R [2018] NZCA 366. Outside of strict criteria of that sort, breach of the McKell rule should, of itself, amount to a miscarriage of justice.

In what one hopes was a flash of brilliant wit, Gageler J declined to comment on judicial comments.

Fair process and choice of mode of trial

In S(SC 36/2018) v R [2018] NZSC 124, (the Court of Appeal decision is noted here on 5 May 2018) the defendant had not been told that a judge-alone trial was available, and he was convicted following trial by jury.

The Supreme Court delivered two judgments: William Young, O’Regan and Ellen France JJ jointly (delivered by Ellen France J, paras [1]-[86]), and a concurring judgment by Glazebrook and Arnold JJ (delivered by Glazebrook J, paras [87]-[99]). The appeal was dismissed.

The error was not jurisdictional ([46], [91]), for the court had jurisdiction to try the charges by either mode, and the error did not render the jury trial a nullity. It was a procedural error, and the issue on appeal was whether it had rendered the jury trial unfair. Was it unfair to try the defendant by jury, when he had not been aware of his right to a judge-alone trial?

The jury trial had been conducted fairly ([34], [96]). The defendant would have been advised to elect trial by jury ([54], [98]). There was no reason to think this was unsound advice ([56]). He had not demonstrated that he would have rejected that advice at the time it was given. On these facts there was nothing to suggest that an unfair procedural course had been taken ([83], [98]).

On different facts, if a defendant had been unaware of the right to elect trial by jury, that would amount to loss of an important statutory right, and such an error might, depending on the circumstances, amount to an unfair process rendering the judge-alone trial unfair ([99]).

So there could be circumstances where absence of advice on election of mode of trial would result in unfair process, but those did not exist in the present appeal ([96]).

There are some areas of vagueness. As far as nullity is concerned, a threshold is mentioned ([45]-[46]). This suggests some flexibility in the concept of nullity, and the cases cited indicate differing approaches and various circumstances. Nothing was resolved about that in this appeal, so the references to some of the other cases could be called excessive and perhaps even confusing. Cases interpreting different legislation need to be shown to be relevant, and older references to the overlapping of nullity and miscarriage of justice, and to degrees of nullity, do not seem relevant to s 232 in which attention is confined to three alternative ways in which a miscarriage of justice may occur: where there is a real risk that the outcome of the trial was affected, or where the trial was unfair, or where the trial was a nullity. Too much discussion of authorities calls to mind the amusing confession of having heard, “second hand”, that “a former clerk once referred to one of my judgments as ‘over-researched as usual’”: see Justice Susan Glazebrook, “Academics and the Supreme Court” (2017) 48 VUWLR 237 at 239. In this case it's the other judgment that seems rather overwrought.

Case Note: Onus and standard of proof that evidence was improperly obtained: Kearns v R [2017] NZCA 51, [2017] 2 NZLR 835

Criminal lawyers in New Zealand are familiar with s 30 of the Evidence Act 2006 which concerns the admissibility of improperly obtained evidence. Its first two subsections are as follows, and this note focuses on (2)(a):

“(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if—

(a) the defendant or, if applicable, a co-defendant against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or

(b) the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.

(2)The Judge must—

(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and

(b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice.”

On the issue of whether the evidence in question was improperly obtained, is there an onus on any party, and is there a standard to which the issue must be decided? The distinction between the terms onus and standard must be borne in mind. An onus, or as it is also called, a burden, is on the party that has an obligation to prove something. A standard is the level of proof or satisfaction required to be established by the party having the onus. On the ultimate issue of guilt in criminal cases, the onus or burden is (usually) on the prosecution and the standard is beyond reasonable doubt. Where admissibility is in issue, the decision may involve both determination of facts – a matter of proof – and consideration of those facts to decide whether impropriety existed – a matter requiring an evaluative assessment.[1]While there have been dicta[2]that suggest that it is not appropriate to apply a standard to the exercise of judgement, subsection (2)(a) seems plainly to apply the standard of the balance of probabilities to whether, as a matter of judgement, proved facts establish impropriety. Both the determination of the facts, and the evaluation of them, are subject to this standard.

Ordinarily, the party that asks the court to do something has the onus of satisfying the judge that it should be done. And ordinarily, technical legal terms have their usual meaning. So on first blush it would seem that the defendant (or, if applicable, a co-defendant) who asks the court to exclude evidence which is otherwise admissible, on the grounds that it was improperly obtained, has the onus of persuading the court that the evidence was improperly obtained. The standard is said to be on the balance of probabilities.[3]Even if it is the judge who raises the issue, the onus and standard should not change.

But in this context the phrase “on the balance of probabilities” could mean “on the preponderance of probabilities”. Here, preponderance means one scenario is more likely than the other, including where one reaches the balance of probabilities fixed standard, but also including cases where the more likely scenario is nevertheless below the balance of probabilities standard. This extended meaning of preponderance can be relevant because the judge is forced to make a decision. Whichever of the alternative scenarios is the most probable wins, even if both are less likely than not. In cases that may occur only relatively rarely there is another problem: what should the decision be if there is no reason to prefer one version of the facts to the other? Both versions may appear reliable, or they may seem equally unreliable. Here there is no preponderance of probabilities, and commentators have called this the equilibrium problem. A sensible solution to such a problem would be to refer to the onus of proof: equilibrium means the party with the onus has failed to persuade the judge to rule in its favour. So, does the absence of reference in s 30(2) to an onus mean there is no onus, or is an onus implied? And if an onus can be implied, is it always on one party, or can it shift depending on what the judge perceives as the justice of the case?

At an early stage commentators thought there was no onus, and that therefore equilibrium was a problem.[4] Priestley J recognised this in R v Hanford,[5]a case where the witnesses on each side seemed equally credible. The obligation to make a decision without an onus to resolve the equilibrium led his Honour to observe that this legislative framework infringed “the constitutional right of a judge, in rare cases, to be unsure”. If one respectfully doubts that there is such a constitutional right, preferring to say that litigants have a right to have judges decide their issues, it could still be said that a legislated requirement for a finding, in the absence of an onus, is an interference with the independence of the judiciary, even, in cases of equilibrium, to the extent of potentially requiring dishonesty. Certainly it is acceptable, and common, for the legislature to tell judges what matters to take into account, and even what matters are important, but what Priestley J found objectionable was the forcing of a judge to make a decision, in circumstances where a decision couldn’t be made.

In the light of this difficulty it would be worth re-considering the interpretation of these subsections. This is not to say that these issues matter in most cases, where decisions are relatively easy and outcomes would be the same regardless of onus, balance, and the imperative to decide. Many cases almost decide themselves, at least on the issue of impropriety, and it is not unusual for prosecutors to concede the point as a preliminary to contesting the balancing decision of admissibility.

In Kearns v R[6]the appeal against a ruling that evidence obtained in a vehicle search was admissible was allowed to the extent that the issue of admissibility was remitted to the District Court for further examination of the evidence and further findings of fact. This was necessary because the judge had failed to fully examine the lawfulness of the search and the extent of impropriety. The Court of Appeal’s mention of the issue of onus was therefore cursory, particularly because the Court was discussing the rather more interesting issue of the risk that the initial approach by the police was racially motivated. It was noted at [40] that, “Once a foundation is established, subs (2)(a) obliges the court, ideally with the assistance of counsel, to elicit the evidence necessary for a finding to be made.” At [37] the Court rejected a submission that it was for the prosecutor to prove that the search was lawful, once the issue was raised:

“The legislative history of s 30 demonstrates that Parliament specifically rejected imposing the burden of proving propriety on the prosecution. Parliament chose not to follow the Law Commission’s proposed draft in that respect ... . The correct approach is that neither party carries the onus. Onus of proof language does not make sense where the judge has a duty to make a positive finding. The judge must choose, as best he or she can on the evidence, which of the scenarios (proper or improper) is the most probable and make a finding accordingly. ....” [footnote omitted]

In the context of ordinary principles of interpretation, and of Hanford and similar cases, it is not controversial that the prosecution does not (always) have the onus of proving propriety. What stands out, however, is the claim that “Onus of proof language does not make sense where the judge has a duty to make a positive finding.” One would have thought, with respect, that an onus is particularly relevant where a finding has to be made, especially in those difficult cases of equilibrium. Perhaps the Court meant to say, “Standard of proof language does not make sense where the judge has a duty to make a positive finding”, which would be true but this revision does not fit the context. Be that as it may, the Court went on to emphasise that a choice must be made, as best as it can be, between the scenarios. One alternative must be more probable than the other, regardless of any standard. This seems to amount, in those difficult cases, to forcing a fiction of unequal likelihoods on the judge. Further, it requires the judge to conclude that evidence was improperly obtained just because that is the more probable scenario, even if the probabilities of each scenario are well below the standard of the balance of probabilities. The Court may have been taking the phrase in (2)(a), “on the balance of probabilities” to mean “on the preponderance of probabilities”.

It is respectfully suggested that the ordinary interpretation, mentioned earlier in this note, is to be preferred. It conforms with common sense as to onus, it applies the usual meaning of the balance of probabilities as a standard rather than a preponderance, it does not involve an equilibrium problem, it does not impose a fiction on judges, it does not compromise judicial independence, and it does not require highly unlikely allegations of impropriety to be accepted. If, however, a permanent onus on the defendant who seeks to have evidence excluded is thought to go too far, it can still be noted that the legislature’s refusal to place a universally applicable onus on the prosecutor, coupled with the silence of the provisions on the question of onus, does not exclude the use of an onus as the judge sees fit in the circumstances of a particular case.[7] 

[Update:] A shifting onus is consistent with the phrase in (2)(a), “whether or not”, which allows for the possibility that the prosecutor may succeed in satisfying the judge on the balance of probabilities that the evidence was not improperly obtained. The Law Commission has noted opinions to the effect that s 30 is biased towards holding improperly obtained evidence to be admissible, and has referred in this context to the equilibrium problem as illustrating that the party with the burden of proof (assumed to be the defendant) may fail to meet the standard of the balance of probabilities[8]. This appears to overlook the argument presented here.

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[1] The phrase “evaluative assessment”, is used in Marwood v Commissioner of Police [2016] NZSC 139, [2017] 1 NZLR 260 at [46] to describe the process of assessing the appropriateness of a remedy for unreasonable searches, distinguishing it from the exercise of a discretion. Illustrations of the use of evaluation include assessing whether rights have been waived in the context of police interviews: Perry v R [2015] NZCA 530 at [32], the decision by a jury on the significance of propensity evidence: R(CA477/2014) v R [2015] NZCA 394at [23], [29], and the choice of an appropriate sentence: R v Cunnard [2014] NZCA 138 at [13]. An appeal against an evaluative assessment may involve the appellate court substituting its assessment for that of the court below. Where the basis for alleged impropriety is unfairness in the way the challenged evidence was obtained (s 30(5)(c)), an evaluative assessment will be required, as is illustrated on appeal in King v Police [2018] NZHC 1213 at [27]-[34] concerning a breach of the rules for taking statements, and in R v Alsford [2017] NZSC 42, [2017] 1 NZLR 710 at [38] as to breach of privacy.

[2] For example, R v Leitch [1998] 1 NZLR 420, 428, (1997) 15 CRNZ 321, 327 (CA) referred to in Simon France (ed) Adams on Criminal Law – Evidence (online looseleaf ed, Thomson Reuters) at ED2.02(2). The evaluation for impropriety can be straightforward, for example evidence obtained in an unlawful search will usually be obtained improperly, except where the unlawfulness is minor or technical: R v Williams [2007] NZCA 52, [2007] 3 NZLR 207, (2007) 23 CRNZ 1 at [21]-[23]. Often, a breach of the law can be established by proof of facts and without a further process of evaluation, but where reasonableness has to be assessed, for example in considering the adequacy of grounds for an action, evaluation will be necessary.

[3] The expression “the balance of probabilities” is discussed extensively in Z v Dental Complaints Assessment Authority [2008] NZSC 55. It is not a flexible standard (per Elias CJ at [28], Blanchard, Tipping and McGrath JJ at [101], Anderson J “largely in agreement” with the joint judgment [146]), and it means more likely than not (per Elias CJ at [28], joint judgment at [102]).

[4] 
     Mahoney et al, The Evidence Act 2006: Act and Analysis (2007, Brookers Ltd) at EV 30.06(1). The passage in Adams on Criminal Law – Evidence, above note 2, at EA30.06(1) has been to similar effect.

[5] R v Hanford HC Auckland CRI-2007-057-1922, 24 July 2008 at [8].

[6] 
     Kearns v R [2017] NZCA 51.

[7] Flexibility is apparent in pre-Kearns dicta. In R v Follas HC Rotorua CRI-2009-077-1516, 22 November 2010, at [37] Wylie J noted and agreed with Priestley J in Hanford at [82]-[84] (including the observation that s 30(2) is ambiguous on whether the defendant, or neither party, bears an onus), and considered that the onus should be on the prosecutor (at [38]). This was noted in, and is inconsistent with, Kearns (at [37]). It may be that in Kearns it would be easier for the prosecutor, than for the defendant, to establish why the police approached the car.

[8] 
     NZLC R142 The Second Review of the Evidence Act 2006 (28 February 2019), p 134 at [7.52] and footnote 43.