Conviction appeals: a virtual proviso?

I am not saying that updating one’s textbooks is a wonderful hobby.

But it can bring to your attention cases that, although currently suppressed, are of great interest to lawyers.

One such opened on my screen this morning. Because of its suppression order, and the possibility that the order may still be in effect (the case is not currently freely available online), I dare not speak its name. Nor will I say anything about its alleged facts, the charge(s), or anything else that could with any seriousness be regarded as a breach of the order.

The legal point is about how appellate courts are to interpret s 232(2)(c) of the Criminal Procedure Act 2011, concerning certain types of appeals against conviction. Specifically, and in historical context, has the removal of the proviso affected the meaning of “miscarriage of justice”? Under the proviso, an appeal could be dismissed if, notwithstanding the existence of a miscarriage of justice, it was not a “substantial” miscarriage of justice.

The new approach, under the current legislation as interpreted by the Court in this case is, if there has been an error relating to the trial that is more than inconsequential or immaterial, ask (1) whether the error has resulted in a real risk that the outcome of the trial was affected adversely to the appellant; and if there is that risk, ask (2) whether on the material available to the appellate court the court can be sure that the appellant is guilty, taking a conservative approach to this assessment in the light of the disadvantages that the appeal court has.

Has the Supreme Court read-in a proviso? On the plain words of the legislation, which are admirable for their simplicity and not in need of modification, there is no proviso. The appellate judges just assess a risk, and do not have to reach a verdict. But the approach set out by the Supreme Court comes down to: if there is a real risk that an error affected the result of the trial adversely to the appellant, allow the appeal “provided that” (my words)  the appeal can be dismissed if the appeal court finds the appellant guilty.

I suggest that it is important to recognise that an appellate court is not permitted to readily accept that guilt is proved on the record, but must be very careful and only dismiss appeals where guilt is obvious.

And to those who say, "But Don, if the answer to question (1) is yes, how can the answer to (2) also be yes?" I can only reply, I feel your pain.

The Court has turned a statutory question which addresses how the fact-finder at trial could have been affected into a question about the appeal court's verdict.

To what extent was there a problem of statutory interpretation here? To what extent should a court rely on the expectations of people who work in the background in the preparation of legislation (and who write explanatory notes to bills), to ascertain the meaning of an enactment? There are statutory directions about how legislation is to be interpreted (we have the Interpretation Act 1999 and the yet to come into force Legislation Act 2019 update: it was fully in  force, except for s 148, on 28 October 2021) and these point to using the text and purpose of the enactment - and here we would look at the purpose provision of the Criminal Procedure Act 2011, s 3, which is simply "to set out the procedure for the conduct of criminal proceedings". On the face of the legislation (s 232 of the Criminal Procedure Act 2011) there is no interpretive difficulty.

On a plain reading, s 232 reproduces the approach to appeals that had been accepted in R v McI [1998] 1 NZLR 696 (CA), as described in Matenga (below) at [12]-[13]. The focus in McI was on what the jury would have done, and the appellate court was not required to come to its own verdict. This raises the question whether the drafters of the legislation were thinking of the law as stated in McI when they said that no change was intended. [1]

It is only when one tries to fit the law as modified in Matenga into the new provision - in accordance with the prediction of the legislation drafters that there would be "no change to the core principles underlying the courts' current approach" to these appeals - that some interpretive stretching is needed. What the core principles underlying the courts' approach were is indeed itself an interpretive question.

I have commented on a case concerning the relevance of the old law to new law on appeals, Baini v The Queen [2012] HCA 59 at [14]-[15]. (In the update to that comment, I have referred to the present case, but with its citation only.)

In the present appeal the interpretive point was obiter, because the Court found that an evidential ruling had rendered the trial unfair, and that therefore the conviction(s) had to be quashed without further consideration of the evidence. Naturally, the Court would want to decide at the earliest opportunity how s 232(2)(c) works, and it did seek submissions on the point, but as it turned out there was no argument because counsel agreed that there had been no change in the law. Normally, failure to take an issue, and the obiter nature of the decision, would make a case weak authority, but obviously here the authoritative decision has been made.

Still, one mustn’t mope. Moving forward with this: the position really isn’t all that bad. The decision is that if an appeal court finds that there was an error at trial that created a real risk of an adverse outcome for the defendant, the appeal against conviction must be allowed unless the appeal court can be sure, on the evidence properly admissible, that the appellant’s conviction was correct. This approach is that which had been clearly set out in R v Matenga [2009] NZSC 18 (where inadmissible evidence had been adduced by the prosecution and the Supreme Court could not be satisfied that the admissible evidence proved guilt). In Matenga the Court noted at [32] that where a case turns on the honesty or reliability of witnesses the appeal court is unlikely to be able to be sure of the defendant’s guilt, and this was the position in Matenga (at [35]). Where inadmissible evidence was relied on at trial, the appellate approach is as stated in Lundy v R [2019] NZSC 152 at [42], and see Ellis v R [2021] NZSC 77 at [29]-[30] (leave to adduce evidence refused).

I think it would be sensible to treat the first question as whether there could have been the requisite risk, and then, if there could have been, ask whether there was such a risk, and to answer that by reference to the appeal court's verdict.

Interestingly, in refusing leave to adduce evidence in the Ellis appeal, the Court rejected a Crown submission that on appeal the Court would essentially be acting as the "final trier of fact" (at [32]), and stated that it would be engaged in "determining whether a miscarriage of justice occurred at the appellant's trial. That is a quintessentially appellate task." This view pushes any thought of the proviso (the old law applies to this appeal) well into the background.

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[1] Mistakes can occur in the explanatory notes and official commentaries. In the Select Committee Report on the Bill the Commentary on the appeal provisions contains a misunderstanding of the significance of the word "rehearing" (see my note on 2 December 2019). Anyway, the Commentary was added when the original draft of the relevant clause (236) was revised by removing a reference to rehearing, and by defining substantial miscarriage of justice to include reference to trial unfairness, so that after later removal of the word "substantial" by the Committee of the Whole House, the clause  was brought into a form mirrored in what is now s 232. I recently found my submissions to the Select Committee (17 February 2011) in which I raised concerns about the appeal proposals, including an objection to the use of the expression "substantial miscarriage of justice". The then Chief Justice wrote to the Committee a few days later (25 February), also submitting that the word "substantial" should be omitted. The fact that the Bill was called the Criminal Procedure (Reform and Modernisation) Bill does suggest that it shouldn't be assumed that its provisions do not reform the law. And you can see from the linked documents that the Commentary's assertion of no change precedes the deletion of the word "substantive" at the last Committee stage. However, the same assertion is repeated in the Supplementary Order Paper (SOP No 281) which deleted the word "substantial": "The amendment simplifies but does not alter the test for allowing an appeal against conviction." While that may be partly true, you might still wonder why, when the wording was under consideration, no effort was made to expressly give any verdict determining ability to the appellate court by including an equivalent to what the Court has in the present case formulated as the second question.

The police as community caretakers - a "third source" authorisation?

Can the police enter without warrant (or statutory or common law authority) the house of an absent occupier to search for weapons that the absentee might use to commit suicide?

The Supreme Court of the United States has held, no: Caniglia v Strom, 20-157 USSC May 17, 2021.

The Court was unanimous, and was careful to make it clear that this decision did not affect the established law relating to entry without warrant but in exigent circumstances. The exigent circumstances exception has been confined within narrow limits, essentially so that the law conforms with common sense.

Broadly, it is not necessarily unlawful, in exigent circumstances - that is, circumstances of emergency to protect life - for the police to enter private property without first applying for a warrant to authorise that entry.

Independent of exigent circumstances, the police may (in the United States at least) generally take actions that any private citizen might take.

This decision of the Court rejects the proposition that the police may act pursuant to a “community caretaking” duty.

So, caretaking is insufficient to make warrantless entry of private property lawful; there must be exigency.

Recognition that the police can do what any private citizen might lawfully do, is controversial. It calls to mind the “third source” of governmental authority proposed by some jurists. See, for example, BV Harris, “A Call to Maintain and Evolve the Third Source of Authority for Government Action” (2017) 27 New Zealand Universities Law Review 853. See also my comment on Ngan.

The "third source" theory, repeated almost to the point of reifying the concept, is that sources of legal authority - here, the authority of the police as exercisers of the executive power of law enforcement - are legislation, firstly primary, or secondly delegated (regulations or legislative instruments), or "thirdly" facts which call for a response. [1]

Regardless of its source, a power of search must be exercised reasonably. Reasonableness (or, absence of unreasonableness) is not the source of the power, but it is descriptive of how the power must be exercised to continue to deserve recognition as lawful.

Unlawful searches are unreasonable (there are very narrow exceptions to this - for example, where the police in good faith endeavoured to comply with a law that was open to various interpretations and which needed clarification by the legislature or by the courts), and lawful searches are sometimes carried out unreasonably.

We might doubt whether a third source is needed in the context of cases like Caniglia v Strom. The courts can craft rules about police entry into residential property if elaboration of the requirement of reasonableness is required. But the source of lawful authority is primary or secondary legislation. To place the source of legality in the facts of a case is to invite anarchy. [2]

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[1] I am differing here from the usual counting of sources, in discussions of governmental powers, where the first two are parliamentary and the royal prerogative. In the present context it seems sensible to recognise the two types of legislation, as the prerogative has no application to the law of search. It may be suggested that the third source is really that which is necessarily implied with the grant by legislation of search powers. But implications are not necessarily obvious without a factual context, and where that is so I prefer - for third source purposes - to think of the facts as giving rise to (in the sense of motivating) the interpretation. Implications from the text of legislation are first or second source, whereas implications from the facts might be third source - if indeed the third source is a real thing. See S v Commissioner of Police [2021] NZHC 743 at [64], [80].

[2] Just a bit of exaggeration here, probably. The name "third source" may be misleading: it seems to be not a source of power but a freedom that exists to do what is not prohibited by positive (legislation or judicially-made) law. See Jeff Simpson, "The Third Source of Authority for Government Action Misconceived" (2012) Auckland University Law Review 86. While we are thinking about this, and the hypothesised power of the police to do anything that an ordinary person could lawfully do, let's note the Right Honourable Sir Stephen Sedley's comment in London Review of Books, vol 43, no 13 (1 July 2021), p 19: (in an only slightly different context), that is "a formula that embraces acting out of caprice, greed or spite."

Protecting prosecutors from police prosecution

In Ontario (Attorney-General) v Clark  2021 SCC 18 (30 April 2021) the Supreme Court of Canada explained why Crown prosecutors should have immunity from prosecution by their clients the police for alleged failure to carry out their public duty in the conduct of prosecutions.

The issue of immunity here arose from police complaints that prosecutors had failed to challenge at trial allegations by the defence that officers had assaulted defendants. The result of the prosecutions on charges relating to robbery had been a pre-trial stay of proceedings for one defendant and a reduced sentence for the other who had proceeded to trial.

Prosecutors are not shielded from all claims alleging abuse of powers. There is in Canadian jurisprudence an “accused-centred policy thread woven through the authorities” (majority judgment delivered by Abella J, at [40]). Sometimes, defendants may sue prosecutors, so should police also be able to? No: “allowing police officers to initiate such causes of action would raise profound risks to the rights of the accused and to prosecutorial independence and objectivity, and it would undermine the integrity of the criminal justice system.”

Reasons are: the difference in function of police and prosecutors ([41]), the need for Crown prosecutors to act independently ([43]) being a buffer between the citizen and the police ([44]), the need to avoid injustices and wrongful convictions ([48]), the need to avoid placing prosecutors under pressures which could distort independent decision-making ([51], [53]),the need to protect public confidence in the independent and objective ability of prosecutors to conduct fair trials ([56]), the need to protect defendants’ fair trial rights by freeing prosecutors from accountability to the police whose interests are adverse to those of defendants ([58]).

In summary ([51]):

“Piercing the immunity of Crown prosecutors to make them accountable to police officers puts them in perpetual potential conflict with their transcendent public duties of objectivity, independence and integrity in pursuit of ensuring a fair trial for the accused and maintaining public confidence in the administration of justice.”

Côté J dissented, on the basis that a high threshold for liability for misfeasance in public office would protect prosecutors while also giving remedies for police officers who are subject to severe criticism in criminal proceedings to which they are not parties. The need for a remedy in an individual case should not be obliterated by generalities. For some of the important points made by Côté J, see [117]-[122], [129], [133], [138].

Preventing unfairness of one's own making

My heart missed a beat yesterday at breakfast. A newsreader announced that the Supreme Court of the United Kingdom had held that fairness does not trump public safety concerns.

Not to worry. The fuller story was that a stay of proceedings should be ordered if there was no alternative means of avoiding unfair proceedings.

This was a civil case: R(on the application of Begum) v Special Immigration Appeals Commission [2021] UKSC 7. In civil cases fairness is assessed by taking into account the interests of all parties, and some forensic disadvantage will not necessarily prevent continuation of the proceedings.

A stay of proceedings, when used in the context of fairness, is usually aimed at protecting a party from the unfairness that would occur if proceedings were allowed to continue.

In the unusual circumstances of this case, the stay would prevent Ms Begum from appealing against an order depriving her of her citizenship of the United Kingdom. At least, until the circumstances changed to the extent that she would be able properly to participate in her appeal.

The related issues before the Supreme Court were able to be determined without causing unfairness to her, because no issues of fact were involved.

Some interesting points are illustrated in the judgment of the Court, delivered by Lord Reed P. Examples are the differences in approach to appeals, depending on whether they are against discretions or against evaluative judgements; the need for appellate courts to have an evidential basis for their determinations of facts; the appropriateness of judicial deference to the decisions of ministers who are answerable to Parliament; and the need to recognise when guides to decision-making are not rules and so do not turn a discretion into an evaluative judgement.

(I am spelling judgement with that middle e to draw attention to the point that what is being addressed is the mental process, not the outcome. The outcome is, as we know, spelt in law without that middle e. The courts, in contrast, tend to use the latter spelling most of the time.)

The danger of holding dual-citizenship is illustrated by the circumstances of this case.

The principle of legality, rights limitation by necessary implication

Parliament may make laws that deliberately infringe people’s rights. Including rights contained in a Bill of Rights.

 

But bills of rights may require that legislation is to be interpreted consistently with individual rights, so far as it is possible to do so.

 

The exact wording of this sort of interpretive requirement may vary between bills of rights in different states. [1]

 

However, there is a generally applicable principle which requires that when Parliament intends its legislation to infringe individual rights, it can only do so “by express words or necessary implication.” This is called the principle of legality.

 

Differences over whether rights infringement was a “necessary implication” were central in D (SC 31/2019) v Police [2021] NZSC 2 (9 February 2021). [2]

 

The majority held that the relevant legislation was insufficiently clear to displace the presumption against retrospective penalties. The minority considered that the only available interpretation of the legislation was that it did displace that presumption.

 

It is for Parliament to decide what to do to avoid the consequent incongruities (noted by Glazebrook J, dissenting on this point, at [243]-[248] and referred to in the joint majority judgment of Winkelmann CJ and O’Regan J at [82]).

Given the disagreement here among Judges of the final appeal Court over application of the principle of legality, you might fairly ask whether the majority could have given clear guidance on how such disagreement might be avoided in future. Should the principle of legality have been modified by excluding “necessary implication”, so that clear words are required for legislation to infringe rights? A statutory example of clear words is mentioned at [79].

 

The rejection in New Zealand of the more “far-reaching” interpretive approach in Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557 drew mention from Glazebrook J at [253] of academic commentary about when the courts might be prepared to override Parliament’s purpose.

 

The extent to which, on an appeal against sentence, the appellate court should consider evidence of recent (that is, post-sentencing) assessments an offender’s prospects of rehabilitation, also arose for comment in this case.

 

No objection had been taken to the consideration of such material by the appellate courts here, so the point did not need to be decided, but William Young J observed that on sentence appeals the issue is whether there had been an error at sentencing, so he had reservations about the practice ([305]-[307]). Glazebrook J had reservations too, but on the narrower ground that the scheme of the present legislation seemed to be against consideration of such updating material (at [262]).

There are also some interesting remarks on judgment anonymisation in contrast to name suppression: see [136]-[147].

I don’t need to distress you with a more detailed consideration of this appeal, because the Court itself sets out an admirably clear summary of the positions taken by each Judge and the result of the case (at [1]-[11]). Thank goodness for that.

Update: All the judges in this case recognised that Parliament may wish to address the anomalies identified by Glazebrook J (see majority judgment at [82]). A Bill was introduced on 17 March 2021, and it became law on 23 March 2021, to make the retrospective effect explicit in respect of people convicted and sentenced on or after 14 October 2016 (when the Registration Act came into force) for offences committed in New Zealand or overseas before that date. An exception is made for the individual appellant in D (SC 31/2019), who can keep his victory in the appeal. This exception may be for constitutional reasons, illustrating the separation of powers - Parliament, in correcting its legislation after the successful efforts of an appellant, will not interfere with the court's decision in that individual's case.

 

 

[1] For example, s 6 of the New Zealand Bill of Rights Act 1990, s 3 of the Human Rights Act 1998 [UK], and see my comment on the difference between these (8 September 2011). See also my discussion of Momcilovic (9 September 2011).

 

[2] The principle of legality is referred to in this case at [76]. For background, see Bruce Chen “The Principle of Legality: Issues of Rationale and Application” (2015) 41 Monash University Law Review 329. In New Zealand the principle has statutory form in s 6 of the New Zealand Bill of Rights Act 1990. Its rationale as an interpretive aspect of the rule of law is that Parliament understands the way the courts will interpret its legislation, treating it as improbable that there would be a departure from fundamental rights without express and unambiguous statutory wording to avoid the risk that legislation will have unintended consequences.

Consent and sexual grooming - when discussion gets irrational

Calm rationality quickly flies out the window when talk turns to the subject of consent in the offence of rape.

 

This thought occurred to me upon reading an article in the December 2020 edition of the New Zealand Universities’ Law Review. [1]

 

The issue was whether so-called relationship evidence (not a statutory term) should ever be admissible in support of a defendant’s claim of having a belief on reasonable grounds that the complainant consented.

 

Note that a requirement for conviction is that the prosecutor proves beyond reasonable doubt that the defendant did not have a reasonably held belief in consent.

 

Written by an academic, the article offers criticism of two decisions of senior courts, with the aim of encouraging debate over reform of this area of the law.

 

There is a good deal of virtue signalling. The author claims the views he supports are “progressive”. There are plenty of harsh adjectives. One decision is described as “effectively greenlighting the exploitive sexual behaviour forming the subject of the case,” as “brush[ing] aside any attempt at more subtle, sophisticated or policy-based discussion,” as failing to “get to grips with these issues” in a way that “is simply evidence of deeper flaws underlying [the decision’s] approach” to the legislation. Further, there is vagueness, indeterminacy, and erroneous reasoning.

 

Needless to say, with that resounding criticism as a motivator, I read the decision at which it was aimed. Here it is: Christian v R [2017] NZSC 145, [2018] 1 NZLR 315.

 

The Court did not decide that relationship evidence (the complainant’s previous sexual experience with the defendant) is always admissible. The Court (in the joint judgment) was simply applying the law to the circumstances of the case before it. Its speculative comments at [45] are no more than supposition about what could be a positive expression of sexual consent, a positive expression which is necessary for it to be legitimate (that is, reasonable) for the defendant to infer consent. Relationship evidence “may be capable of evidencing consent if there is nothing to indicate that the mutual expectations [concerning consensual sexual behaviour] are no longer accepted.” [emphases added]

 

The decision does not change the law. It did not have to resolve general matters, which are for legislators to decide. It does not make assertions about when relationship evidence must support an inference of consent. The word “grooming” is used once (at [67]), and is here equivalent to “seducing”, something the Court felt was highly unlikely but it should have been left for the jury to consider.

 

It is wrong to sever the question of consent from the circumstances in which it is claimed to have been absent. I disagree with the author’s endorsement of the view that “Consent is ... given to a person, not a set of circumstances.” Indeed, the quotation from Lady Hale offered in support of the separation of consent from circumstances actually puts the opposite proposition: “One consents to this act of sex with this person at this time and in this place.”

One must look at the circumstances to assess whether the defendant could not reasonably have believed the complainant was consenting. Just as propensity evidence can be admissible against a defendant, so too should it be admissible against a complainant. If a complainant had a propensity to consent to sexual intercourse with this defendant on other occasions similar in time and place, and if there is nothing to indicate any difference on the present occasion, why should that previous behaviour be ignored?

It is sometimes said that it is illogical to say that because a complainant consented before, there must have been consent now. That indeed is illogical, but it is not really the rationale for the relevance of previous conduct. The focus is on what the defendant perceived, and whether a perception of consent on the present occasion was reasonable. The relevant standard is common sense, which is not always the same as logic.

 Grooming, as that word is currently used by commentators in this context, means “overbearing the will of a younger complainant in order to falsely manufacture their compliance.” While the conduct referred to in that definition is indeed objectionable, and should be criminal, that is not the sense in which the word is used by the Court in this decision. There could have been an issue for the jury about whether the complainant’s will had been overborne or whether she had been seduced into consenting.

 

The complexities of life are not necessarily appropriately examined within the strictures of absolute evidentiary rules. Courts need the flexibility to assess evidence in the full context of the realities of sexual behaviour.

 

 

[1] Scott Optican, Christian v R and Jones v R: How Bad Consent Law Creates Bad Evidence Law in New Zealand Sexual Offence Trials (2020) NZULR 283.

Balancing and proportionality in admissibility decisions

How do we predict judges’ decisions on the admissibility of improperly obtained evidence?

 

Some lawyers think it all depends on who the judge is, and what the judge had for breakfast.

 

But really, prediction is quite easy, at least for lawyers competent in this area of practice.

 

In New Zealand, the decision must follow a statutory structure, set out in s 30 of the Evidence Act 2006. According to s 30(2)(b),

 

“if the Judge finds that the evidence has been improperly obtained, [the judge must] 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.”

 

 

Points to note concerning the method are: (1) it is a proportionality determination, (2) carried out by means of a balancing process. Further, (3) appropriate weight must be given to the impropriety, and (4) proper account must be taken of the need for an effective and credible system of justice.

 

We can’t give this any meaning until we see how it is applied in practice. But structurally, at least we know that there is balancing, proportionality, and importantly point (4) which is the decision criterion. It is all decided against what an effective and credible justice system requires.

 

But again, we need the judicial decisions to reveal what this means.

 

There are two kinds of precedents here: weight precedents and proportionality precedents.

 

We need to know, in the case we are dealing with, what weight will be given to factors favouring admission of the evidence, and what weight will be given to factors favouring exclusion of the evidence. Then, with that combination of admission and exclusion weights, we need to know what the precedents indicate will be the proportionate outcome.

 

You might find it easiest to consider the whole thing diagrammatically. Not all lawyers need the assistance of diagrams, but I certainly do.

 

As there are basically two things to consider – admission and exclusion factors – we could put them on the x- and y-axes of a graph. The y-axis, the vertical one, will be for the admission factors, and the horizontal x-axis will be for the exclusion ones.

For each axis there will be movement to a higher or lower position as relevant matters are taken into account. For example, the logically first consideration on the admission axis will be the starting point for sentencing, but movement down from this may be required if the evidence is not particularly important to the prosecutor's case or, more significantly, if the evidence is unreliable. And on the x-axis, a serious impropriety might be reduced in weight by considerations of urgency or public safety.

 

Experience warns us that the x-axis will need to carry more information than the y-axis, so we can stretch it out a bit to make room. The rectangular field, bounded on two sides by these axes, can be thought of as a field of balance points.

 

This field of balance points will be divided into an area of admission points and an area of exclusion points. There will be a boundary between these points, and the shape of that boundary line will be a visual representation of the decision criterion, point (4) above. The shape of the boundary will be revealed by decided cases.

 

And yes, it has been. Although different lawyers, reading the cases and coming to their own understanding of them, might come up with differently shaped boundary lines, here is mine:

 

 

I like to think it reveals this pleasing curve because the outcomes of the decision process have been pleasingly rational. There are, inevitably, a few cases that don’t fit the pattern, and they can reasonably be said to have been wrongly decided. There are also some cases in which the weighing process has not been carried out consistently with the logic of binding precedents, but although wrongly reasoned they are usually correctly decided insofar as their proportionality outcome is consistent with the pattern of precedents.

 

Walking through the diagram, we have:

 

O to A: the merely technical nature of the impropriety is insufficient to ever result in the exclusion of evidence.

 

A to B: low level impropriety and low level public interest in admission: usually the result will be exclusion of the evidence. The line A-B is not straight, and it is bent to increase the exclusion zone in this part of the field.

 

B is the flattish part of the boundary line, reflecting the distortion of the field that occurred because we stretched out the x-axis a bit. It corresponds to point E on the y-axis. Broadly, if the starting point for sentencing, based on the prosecutor’s summary of facts (or on the state of the evidence at the time the issue has to be decided), would be in the region of four years’ imprisonment or more, the offending can be called - in this context - serious. There are exceptions, where public interest concerns require the offending to be regarded as serious even though the starting point would have to be lower because the statutory maximum penalty is relatively low. These cases can be given appropriate weight on the y-axis as exceptions to the four-year guide.

 

C to D: some improprieties are too serious for evidence obtained as a result of them to ever be admissible, regardless of how serious the alleged offending is. The boundary line between the admission and exclusion zones reaches the top of the field before the top right corner. This can be thought of as a representation of the “cuts both ways” description of offending of high level seriousness. [1] Such offending favours both admission and exclusion, and long-term considerations of the repute of the justice system lead to exclusion prevailing.

 

Of course, there is much more to be said about this. [2] But my point here is that diagrams can help to reveal the underlying rationality of balancing and proportionality decisions.

 

 

[1] See my recent discussion of this here (11 November 2020).

 

[2] For much more, see my perpetually draft paper on this site. Recent updating of that paper has been difficult because of the caution required by suppression orders and the increasing of court backlogs. But I can say that the pattern of precedents has continued up to the present.

Justifying the "implied licence" exception to trespass

Sometimes the common law recognises that uninvited entry onto another person’s (the occupier’s) private property is not trespass. An implied licence is given, in some circumstances, to strangers to enter on private property to speak to the occupier. This usually, in the suburbs, involves going through a gate, walking up a path to the front door, and knocking. In a more urban environment it can mean just entering a vestibule and pushing a doorbell intercom. Or even just pushing a button if there is no vestibule. It is the existence of the gate, path and front door, or the bell, from which the occupier’s permission to enter is implied.

 

This common law implied licence can be revoked by an occupier. A sign prohibiting entry may be displayed. The person may be told to leave. The occupier may simply not answer the door knock or bell push. If the visitor does not leave, a trespass is committed.

 

The traditional justification for the implied licence has been protection of the occupier’s property rights against undesired entry by everyone else, including officials of the state. Whether an implied licence exists has traditionally been determined according to what the visitor is seeking to achieve by entering. This is because permission to enter would not be implied if the occupier would not have wanted to receive a visitor who had an adverse purpose. In this sense it is a subjective assessment.

 

For example, an implied licence would not authorise an official, entering without any legislated authority, to coerce an occupier to give information. But a purpose of seeking the occupier’s voluntary cooperation would be within the licence.

 

Some revision of the legal basis for implied licences has occurred. Under this revision, implied licences exist for pragmatic reasons, not because of what an occupier would want, but because of the way society works today. This is an objective justification for implying the licence to enter.

 

A consequence of this revision is that where the person entering has both a traditionally legitimate reason for entering (that is, a reason to which the occupier would not object) and a traditionally illegitimate reason (that is, a reason that is objectively reasonable although not one that the occupier would have been assumed to like), the entry is not a trespass but is protected by the implied licence, subject always to revocation. To both check on well-being, and if the circumstances arise, to compel release of information, can be within an implied licence: Roy v O’Neill [2020] HCA 45 (9 December 2020).

 

The Court split 3-2 on this. Two majority judgments were delivered, by Kiefel CJ and jointly by Keane and Edelman JJ. The joint dissenters were Bell and Gageler JJ. The dissent was on both the law and the interpretation of the evidence.

 

Bell and Gageler JJ summarise what I have called the traditional or subjective basis for an implied licence:

 

“[37] The implied licence to ‘knock and talk’ is accordingly confined by reference to the ‘purpose’ of the visit, in the sense that the status of an uninvited visitor as either a licensee or a trespasser depends on what the visitor is seeking to achieve at my home by walking up my path, standing at my doorstep and knocking on my door. If the purpose is just to talk to me, and in talking simply to ask for permission to come inside or to go elsewhere on my land or simply to ask for my voluntary cooperation in pursuing some inquiry, the totality of the conduct is within the scope of the licence. If the purpose is just to coerce me, the totality of the conduct is outside the scope of the licence; it is a trespass.”

 

 

And as to visitors with mixed purposes,

 

 

“[40] ... the answer lies in identifying the limits of the permission granted by the implied licence to ‘knock and talk’. The preferable view is that a police officer who walks up my path, stands at my doorstep and knocks on my door exceeds the limits of the permission granted by the implied licence, and is therefore a trespasser, if the police officer has any conditional or unconditional intention of ordering me to do anything. That view is preferable because it is clear and workable and because it is consonant with contemporary community expectations. At this stage in the development of the common law of Australia, it is an appropriate resolution of the ‘contest between public authority and the security of private dwellings’ [citing Kuru v New South Wales(2008) 236 CLR 1 at 15 [45], quoting Halliday v Nevill (1984) 155 CLR 1 at 9.]”

 

The objective basis for the implication of a licence to enter private property was put by Keane and Edelman JJ as being akin to a presumption:

 

“[67] ... it is based upon ‘an incident of living in society’ [citing Halliday v Nevill (1984) 155 CLR 1 at 19], ‘the reasonable requirements of society’ [citing Tararo v The Queen [2012] 1 NZLR 145 at 172; [2010] NZSC 157 at [15]], ‘the habits of the country’ [citing McKee v Gratz (1922) 260 US 127 at 136], or ‘background social norms’ [citing Florida v Jardines (2013) 569 US 1 at 9].”

 

 

Plainly, citation of those authorities makes it appear that what I have called the revised or objective approach is really long-established. However, in Tararo at [11]-[12] the joint judgment by Blanchard, Tipping, McGrath and William Young JJ points out that originally the licence was based on the implied consent of the occupier (that is, it was what I am calling subjective), and more recently, to accommodate such things as undercover police operations, a “more satisfactory legal basis” is that the licence is implied by law to permit entry for reasonable inquiry, subject to revocation.

 

The move from subjective to objective justification for implication of a licence to enter private property accommodates the “mixed purpose” visitor, subject to express revocation (Kean and Edelman JJ at [72]-[73]).

 

Kiefel CJ accepts the objective justification for recognition of implied licences (at [11]). The law implies the occupier’s permission as a socially desirable limitation on the law of trespass. Importantly, the purpose of entry must involve “no interference with the occupier’s possession nor injury to the occupier” (at [13], [16]).

When does the seriousness of offending "cut both ways" in improperly obtained evidence admissibility decisions?

You don’t need me to point out that the law loves its metaphors. Most of all, the metaphor of scales: decisions are often described as balancing exercises. Justice with her scales. So it is with s 30(2)(b) of our Evidence Act 2006.

 

A decision whether to exclude improperly obtained evidence requires careful and clear reasoning, for a refusal to take account of credible relevant evidence is a serious matter. Section 30(3) lists matters to which the judge may have regard, although this is not an exhaustive list. But the message is that particularity is needed when explaining whether improperly obtained evidence should be excluded.

 

One imagines, therefore, that various considerations fall on one side or the other of the metaphorical balance. Depending on the circumstances, they will be given varying weights, on the side of the balance that is appropriate.

 

The need for judicial decisions to be predictable, and not arbitrary, reflects the need for litigants to be able to anticipate the outcome of their arguments. The balancing exercise must be as consistent as possible between cases. Some factors will always be on one side of the balance (favouring admission of the evidence) while others will always be on the other (favouring exclusion).

 

All well and good, in theory. But in practice things have got a bit muddled. There has been confusion over whether the seriousness of the alleged offending is always a matter that weighs in favour, to varying degrees, of admission of improperly obtained evidence. You would expect that the more serious the alleged offending, the more likely it is that evidence will be admissible notwithstanding that it was improperly obtained.

 

But there is a limit to that. It has been said that seriousness of the alleged offending “cuts both ways”. This introduces a sword (or perhaps a pruning saw) metaphor to combine with the scales metaphor. Accordingly, it is said that seriousness favours admission of the evidence, but where the seriousness is high it weighs in favour of exclusion, because in serious cases there is a heightened public interest in having law enforcement officials obey the law.

 

Let’s examine that. Is it the seriousness of the offending that weighs in favour of excluding the evidence, or is it the heightened public interest in having enforcement officials obey the law? Is the public interest in having law enforcement officials obey the law greater, the more serious the alleged offending? Isn’t official obedience to the law just as important in ordinary cases? The more technical an offence, the stricter should be compliance with the law by the authorities, surely. Why should (and here’s another metaphor) the pot be allowed to call the kettle black?

 

The idea that “there’s more at stake for the defendant” when the alleged offending is serious has been offered as a justification for recognising a heightened public interest in official obedience of the law. But, isn’t the public interest in bringing alleged offenders to trial greater, the more serious the allegation? Why is the defendant’s interest in having officials obey the law greater when the defendant was allegedly disobeying the law in a serious way?

The balancing model demonstrates that a "cuts both ways" approach amounts to double counting. It is one thing to remove a weight from one side of the scales, and quite another to then put that same weight on the other side.

 

Given that it is always nice to have enforcement officials obey the law, there must be some instinctive resistance to accentuating that desirability in cases of alleged serious offending. This might explain why senior judges can differ in the outcomes of their balancing exercises in a given case.

 

For example, our Supreme Court split 3-2 on the admissibility of improperly obtained evidence in a case this year. It currently (as far as I am aware) is subject to suppression orders, so I just call it R v [Name suppressed] [2020] NZSC 16 (5 March 2020), and I avoid discussing its facts. The majority judgment of Winkelmann CJ, O’Regan and Brown JJ, includes the following, which is an account of the law which I summarised above:

 

“... As has been noted on many previous occasions, the seriousness of the offending is “apt to cut both ways” [Footnote: Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305, at [230] and [244] per Tipping J. See also R v Chetty [2016] NZSC 68, [2018] 1 NZLR 26 at [67]; and Underwood v R [2016] NZCA 312, [2017] 2 NZLR 433 at [38]–[41].] If the offending is serious, that favours admission. However, if the offending is serious and the nature of the impropriety raises issues as to the quality of the evidence, that will tend to favour exclusion. That consideration does not apply in this case. But even where the nature of the impropriety does not impugn the quality of the evidence, there remains public interest in the careful and lawful investigation of offences, particularly serious offences. [Footnote: Underwood at [38]–[41].] As Tipping J said in Hamed, citing the Supreme Court of Canada in R v Grant 2009 SCC 32, [2009] 2 SCR 353 at [84]:

 

... while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.” [1]

 

I think this makes the mistake of treating the decision criterion (the need for an effective and credible justice system – s 30(2)(b)) as if it were a balancing matter. The decision criterion is a constant, applicable to every admissibility decision under this section. It is always, and not just in cases of alleged serious offending, necessary to have a justice system that is beyond reproach. The balancing matters, in contrast, some of which are set out in s 30(3), vary in significance and some may not be relevant at all in the circumstances of a given case.

 

In dissent, Glazebrook J – if I may summarise broadly - thought it was significant that alternative lawful means of obtaining the evidence had been available (so any impropriety was not particularly serious), and that there were sufficient lawfully obtained grounds for the issuing of the challenged search warrant, so the evidence should have been admissible. No suggestion here of a heightened public expectation that officials should obey the law.

 

Ellen France J dissented – again I summarise broadly, and paraphrase - in the application of the balancing exercise, giving greater emphasis than had the majority to the nature of the evidence obtained and the seriousness of the offending.

 

So, while the majority included what I might call the ‘reverse cut’ (a cricketing metaphor?) in carrying out the balancing exercise, the minority judges did not. Its presence or absence does not account for the judicial differences in conclusion, but it would take a bold person to deny that it played a part.

 

We could avoid any complicated arguing over whether the seriousness of alleged offending can weigh in favour of exclusion of improperly obtained evidence by simply recognising that sometimes official impropriety is so bad that it will always lead to the exclusion of evidence obtained as a result of it. The reason for exclusion lies in the degree of the impropriety, not in the seriousness of the alleged offending.

________________________

[1] There is an irony in the endorsement of this point. The majority joint judgment in Grant approaches the judge’s task of deciding how to maintain the good repute of the administration of justice by setting out a three-branched decision “tree” (!, at [86]). These “branches”, or “avenues” (at [71]) or “lines” ([at [85]) of inquiry are (1) the seriousness of the impropriety, (2) the impact of the impropriety on the defendant’s rights, and (3) society’s interest in the adjudication of the case on the merits. This third branch or avenue or line excludes the seriousness of the offending, because that “has the potential to cut both ways” ([84]), so as to be an unhelpful consideration. Charter rights operate independently of the type of crime for which the defendant stands accused.  So Tipping J in the above passage was quoting what was really a criticism of inclusion of the seriousness of the alleged offending, in the course of explaining how it should be included with the potential of affecting both sides of the balance. Like Deschamps J dissenting ([223]) we approach the decision by way of two-arm test in which factors favouring admission are balanced against those favouring exclusion, and it would be preferable for us to treat the seriousness of the offending as a factor favouring admission without seriousness ever favouring exclusion (see Deschamps J at [226]). I have commented on Grant here on July 18, 2009.

Update: For a diagrammatic representation of the decision process under s 30, see this note (8 January 2021).