Now we are fifteen ...

Hooray! This blog is now 15 years old.

Time to stretch and reflect. Quoting others can be fun ...

“There is more trouble in interpreting interpretations than in interpreting the things themselves, and there are more books on books than on any other subject. We do nothing but write comments on one another. The whole world is swarming with commentaries; of authors there is a great dearth.”

Montaigne, Essays, Book 3 Chapter 13, On Experience. 

“... much reading robs the mind of all elasticity, as the continual pressure of a weight does a spring, and ... the surest way of never having any thoughts of your own is to pick up a book every time you have a free moment. The practice of doing this is the reason erudition makes most men duller and sillier than they are by nature and robs their writings of all effectiveness: they are in Pope’s words 'For ever reading, never to be read.'” 

Schopenhauer, Essays and Aphorisms, “On Thinking for Yourself”.

As an aside, in this week which marks the 100^th anniversary of the publication of experiments in which nitrogen nuclei were split by alpha particles, one’s thoughts turn to Lord Rutherford. Catch a glimpse of the unconscious sexism and intellectual elitism of my fellow Nelson College alumnus ... 

“An alleged scientific discovery has no merit unless it can be explained to a barmaid” 

Ernest Rutherford, quoted by GJ Whitrow, Einstein, the Man and His Achievements p 42.

But returning to law: 

“... as a means of improving one’s own position and popularity, it remains true that there is nothing so effective as to defend someone in the courts, and provide assistance in that field generally. One of the many excellent customs of our ancestors was their invariably respectful treatment of experts in the interpretation of our excellent law.” 

Cicero, On Duties, Book 2.

On not prosecuting addicts for drug possession

The Misuse of Drugs Amendment Bill 119-3 has passed through Parliament and will come into force the day after it receives the Royal assent. [Update: Assent was on 12 August 2019, so in force from 13 August.]

Of particular interest is its addition of two subsections, (5) and (6), to s 7 of the Misuse of Drugs Act 1975.

The new subsections apply only to offences against s 7(1)(a): unlawfully procuring or having in possession, or consuming, smoking, or otherwise using, any controlled drug.

These offences carry maximum penalties of imprisonment for six months if a Class A drug is involved, or for three months in any other case.

The new subsections are:

(5)   To avoid doubt, it is affirmed that there is a discretion to prosecute for an offence against subsection (1)(a), and a prosecution should not be brought unless it is required in the public interest.

(6)   When considering whether a prosecution is required in the public interest, in addition to any other relevant matters, consideration should be given to whether a health-centred or therapeutic approach would be more beneficial to the public interest.

These have been publicly taken to be effective decriminalisation, or at least that was said about them before the last four words were added to (6).

The decision to prosecute is described as discretionary. This is important in legal terms because discretions are treated differently by courts from exercises of judgement. See Stanley v New Zealand Law Society [2019] NZCA 119 at [21], referring to Taipeti v R [2018] NZCA 56, [2018] 3 NZLR 308.

What the public interest means is not elaborated by the setting out of examples of relevant considerations. It is acknowledged that there can be “other relevant matters”, and the new matter to consider is “whether a health-centred or therapeutic approach would be more beneficial to the public interest.” Obviously, the health-centred and the therapeutic approaches are not intended to be competing considerations, but they are to be taken together. Apparently, when they are available they weigh against prosecution.

The legislation does not refer to the Solicitor-General’s Prosecution Guidelines, but these are expected to be followed by the police. The Guidelines refer to the “decision” to prosecute, but also to a “discretion as to whether a prosecution is required in the public interest” ([5.2], [5.5]). Guideline [5.7] sets out the presumption in favour of prosecution, and [5.7]-[5.8] give illustrations of what matters can be considered in weighing up the public interest. The approach is individualistic: each case is to be considered in the light of its own circumstances.

Guideline [5.9.13] refers to whether there are any proper available alternatives to prosecution. Perhaps the new subsections come into play here: did Parliament intend to make an addition to the Guidelines, without actually referring to them, or did it intend to give special weight, separately from the Guidelines, to the consideration of a health-centred or therapeutic approach? Section 7(6) uses the phrase “in addition to any other relevant matters”, but this doesn’t answer the question, and it is not necessarily giving dominance to whether the health-centred or therapeutic approach would be more beneficial to the public interest than would prosecution.

It was this issue which was contentious in Parliament. The National Party in opposition took the view that this was de facto decriminalisation, because even where the public interest in proceeding with a prosecution has (in other respects) been met a prosecution would not proceed if a therapeutic approach would be more beneficial. That is, the presumption would move from favouring prosecution to favouring non-prosecution. The Police Association, the New Zealand Drug Foundation, and the New Zealand Law Society all had the same understanding (see the Report of the Health Committee on the Bill 119-2, the National Party members’ view).

The point has not been clarified in legislation. Is the health-centred or therapeutic approach to the public interest dominant, or is it just a factor in the decision whether a prosecution is in the public interest? The words of the subsections do not suggest dominance, but the fact that this approach has been singled out for statutory mention could. The majority of the Health Committee simply said that the discretion “allows the Police to consider a health-based approach in place of a punitive one when appropriate.” This too does not suggest dominance, but the expression “when appropriate” does shroud the decision process in mystery.

Judicial scrutiny of the discretion could require consideration of complex issues. People charged with offences against s 7(1)(a) are likely to want to challenge the exercise of the discretion to prosecute in their own particular circumstances. There could be a flood of applications to the High Court to review the exercise of such discretions, although the risk of cost sanctions may deter all but the wealthy few, raising in turn issues of equal access to justice.

The practical requirement to accept a therapeutic approach may undermine the right to refuse to undergo medical treatment - New Zealand Bill of Rights Act 1990, (BORA) s 11, although this might be a justified limitation on the right, s 5. This issue was not covered in the advice to the Attorney-General on compliance of the Bill with BORA. There have been indications that it is only in cases of addiction that the health-centred or therapeutic approach will be relevant, the Minister noted in this context that “Fear of prosecution can deter people from seeking help to deal with addiction issues.”

There is, therefore, good reason to think that the discretion not to prosecute will only be exercised in relation to people who, in the opinion of the police, need medical help with addiction. This seems to be the intent behind an amendment to the Bill at a late stage which put the focus on benefit “to the public interest” (subsection (6) above), instead of, as previously worded, just "beneficial" without saying to whom. The change has been taken as swinging the pendulum back towards the status quo. My own view, at this stage, is that this is correct, and that the mystery brought to attention by the Health Committee’s majority’s words “when appropriate” disappears if they mean “in cases of addiction.” So if it's not effectively decriminalisation, which is what bothered the National Party, why did its MPs vote against the Bill? Apparently, because these provisions seemed to add nothing to current practice, and were too vague (although the National Party would have supported other aspects of the Bill). Looking at the third reading debate, you can see how confused the politicians were over what they were voting for or against.

People on the way to addiction or to the other adverse effects of drug use could also benefit from a health-centred or therapeutic approach, so decisions may have to be made as to whether these people should be prosecuted and then given the opportunity of diversion, or whether there should be no prosecution so that an approach like that taken with addicts can be tried. In some areas of the country, currently Waitakere, Auckland and Christchurch, specialist therapeutic sittings of the District Court, known as the Alcohol and Other Drug Treatment Court, are available where prosecution has been commenced, so this will be relevant to deciding whether prosecution is in the public interest in those cases.

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.