Unfair trial or not unfair trial? Hewey v R (Bermuda) [2022] UKPC 12

Was the trial that was the subject of the appeal in Hewey v R (Bermuda) [2022] UKPC 12 unfair?

The judge’s summing up to the jury had not been a “model” of fairness and clarity (at [47]).

If that lack of fairness and clarity made the trial unfair, why did the Board not say that there was no question of applying the proviso? [1] Instead, the Board was merely “unable to conclude with confidence” that there had been no substantial miscarriage of justice (at [52]).

The lack of fairness involved exaggerating the probative value of prosecution evidence concerning particles that were alleged to have been gunshot residue, and reversal of the burden of proof by pointing out that the defendants had not provided any explanation for the presence of the particles (at [39]).

The issue was the identity of the driver of a motorcycle when its pillion passenger shot the victim. The particle evidence was allegedly physical evidence linking the appellant to the scene of the firing of the gun. Eyewitness evidence was challenged as unreliable, and the role of the particle evidence was to support the eyewitness. It was, in that context, of central importance.

Arguably, the two errors should have made the trial unfair, rather than simply being incidents of erroneous comments in the summing up. But alternatively, was this trial one where the departure from good practice was not so gross, persistent or prejudicial that the Board had no choice but to quash the appellant’s conviction?

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[1] Randall v R (Cayman Islands) [2002] UKPC 19, [2002] 2 Cr App R 17 per Lord Bingham at [28], saying that the question is whether “the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty.”

A lawful but contextually unreasonable search: R v Tim, 2022 SCC 12

For an example of circumstances where a lawful search was in breach of the defendant’s right not to be unreasonably searched, see R v Tim, 2022 SCC 12. Two unlawful searches, of the defendant and his car, were followed by a third, which was lawful but in breach of Mr Tim’s Charter rights, in particular the right to be secure against unreasonable search or seizure (clause 8); bringing into play consideration of the remedy of inadmissibility in clause 24(2).

Here, the third search was in breach because of its close temporal and contextual association with the unlawful searches (at [80]).

This was different, on the facts, from a causal connection with the unlawful searches. For readers in New Zealand, s 30 of the Evidence Act 2006 is the governing provision on admissibility of improperly obtained evidence in criminal cases. It sets out law which is not hugely different in its results from Canadian law on the point. Subsection (5) defines when evidence is improperly obtained, and its use of the words “obtained” and “in consequence” raises the question of whether a causal connection between the impropriety and the finding of the evidence is required.

Our courts have recognised that causation is not always necessary, as for example where a confessional statement is obtained from the defendant but after that the procedural error occurs of failing to get the defendant to read it through and to make any corrections before signing it. The statement can be held to have been improperly obtained. See Denney v R [2017] NZCA 80 at [31].

Political laughter at law: extradition, risk of torture and trial unfairness, and Minister of Justice v Kim [2022] NZSC 44

I must admit that I had a good laugh at the brilliant cartoon by the gifted Sharon Murdoch, published yesterday in Stuff (see the cartoon dated April 17, 2022 at https://www.stuff.co.nz/opinion/94869389/sharon-murdoch-cartoons ).

The Kim case has been slowly reaching its climax in New Zealand, and I have commented on it before, on June 12, 2019. Our Supreme Court’s latest judgment in the case is Minister of Justice v Kim [2022] NZSC 44 (13 April 2022). I will call this the second decision.

Just as with law cases, there is always another side to the story in political commentary. One may disagree with the Court’s decision if one looks at it from a political point of view, while agreeing with it from a legal point of view.

On the torture point, the legal question was whether there was a reasonable basis upon which the Minister of Justice could be satisfied that there was no real risk that Mr Kim would be subject to an act of torture if extradited to the PRC.

There were several reasons for the Court’s conclusion in its second decision that such a reasonable basis existed. The case is an ordinary one with no political importance to the PRC. Why, in other words, would the PRC authorities have resort to torture? Further, the investigation of the case in China had progressed to an advanced stage, so again, why resort to torture? And the trial would not be in a part of China where the authorities had a reputation for torturing criminal suspects. And, although an ordinary case, this one has attracted a good deal of international attention because it could be a precedent on the safety of extradition to the PRC. So, with everyone watching, why resort to torture if that would create difficulties in future cases? Here, torture would be irrational, so that there was a reasonable basis for the Minister to accept the assurances that had been obtained from the PRC (since the Court’s previous judgment in this case) and to conclude that there was no real risk that Mr Kim would be tortured.

So the legal decision on this point was sound. The Court was not making a political decision.

As to fair trial, again the decision is particular to the circumstances of this case and the particular assurances offered. Is there a real risk that the trial would fall below the requirements contained in Article 14 of the ICCPR? These are minimum requirements, designed to accommodate different legal systems. But still, the question is particular to the individual trial under consideration. And the right to a fair trial is not to be balanced against a public interest in extradition, as the Court noted in [281] of its first decision in this case. (The right not to be tortured is also an absolute right, and I have reservations about the Court's inclusion of references to other interests in [40] of the second decision.) The issue is minimum standards, not best practice. Have assurances removed a real risk that the trial would be unfair? Together with assurances received from the PRC about trial procedure, the Minister could also consider the opportunities that would be given for monitoring of the trial by New Zealand officials (see [297] of the first decision). Diplomatic assurances between states provided in good faith amount to moral and political obligations on the state providing them (see [257]-[260] of the first decision). Such assurances as to trial fairness could be relied on for similar reasons that the assurances as to absence of torture could be relied on.

The issue came down to whether the Court, assessing the extent of the assurances given by the PRC about the fairness of the proposed trial, could conclude that those assurances did indeed cover the minimum standards required by the ICCPR, and that they did provide a reasonable basis for concluding that the trial of Mr Kim would be fair in that sense. There was no credible evidence, specific enough to be relevant here, to suggest the contrary.

True, cartoonists may have their own evidence about other cases, but apparently not about this one.

Proximity and fishing in safety searches upon arrest: R v Stairs, 2022 SCC 11

Attempts to codify the law - that is, to capture the whole of the law on a given subject in a statute so that it is not necessary to refer to sources outside the statute to ascertain what the law is, except that judicial decisions may explain how the statute applies in particular circumstances - usually fail.

Some people thought that our Search and Surveillance Act 2012 codified the law relating to that subject, and indeed it does have a comprehensive feel about it. But, as a recent case from the Supreme Court of Canada illustrates, not everything is covered.

On arresting a person, an officer may search that person for anything that could be used to cause harm to anyone or to facilitate the person’s escape: s 85. Let’s call that a safety search, There doesn’t seem to be any provision concerning a safety search of the arrested person’s immediate vicinity.

The Canadian case, R v Stairs, 2022 SCC 11, addresses the power of safety search where the arrest is carried out at the person’s residence. To what extent can a safety search occur - in the same room, or beyond that in another room in the residence? For example, the person may be arrested in a bedroom, but then may need to use the toilet. Or the arrested person may need to be escorted through the kitchen, a room that is normally full of potential weapons.

Under s 85 a safety search does not require any grounds: there is no need for the officer to have reasonable grounds to suspect that the arrested person is carrying any of the sorts of items covered by the section. As long as the arrest is lawful, and the search is carried out for the purpose of locating such items, and it is carried out in accordance with the actions described in the section, it will be lawful.

Some searches do require grounds, and these can be one of two kinds: where the officer has reasonable grounds to suspect that the items of the kind described in the search power will be found, and those where the officer has reasonable grounds to believe that such items will be found. The thresholds for lawfulness in this respect can be either suspicion or belief. The statute will say which applies. We are concerned with warrantless searches here, and when these require grounds, the threshold of belief applies.

For example, s 83, referring to warrantless search of a place for evidential material relating to an offence for which the person has been arrested, requires reasonable grounds to believe the specified things. The same threshold applies to search of a vehicle: s 84. Similarly, the threshold of belief applies to the more extensive search of an arrested person pursuant to s 88.

In Stairs, the common law equivalent of our s 85 is described at [34], although it is wider than our s 85 insofar as it includes search for evidence of the arrest offence in addition to safety items. Also, there is a third, and lowest, threshold: there must be some reasonable basis for the officers action, that is, it must in the circumstances seem reasonable to check for safety items: [37]-[38].

In the context of constitutionally protected rights, a balancing of privacy and police objectives for safety searches of a home was necessary: [55]. For arrests that occur in the arrested person's home, distinctions are drawn between areas of the residence that are within the physical control of the arrested person, for which the common law standard applies; those which are proximate to the arrest, a contextual and case-specific inquiry: [60]-[61], for which the threshold is reasonable suspicion [66] (applying Chehil, discussed by me here on 3 October 2013), [82]; and those in more remote areas which, without a warrant, are prima facie unreasonable: [50].

So, some potentially useful gap-filling to which our courts may have occasion to refer. But an important consideration will be whether the omission of the kinds of search mentioned in Stairs from the New Zealand legislation was deliberate. The Law Commission’s report Search and Surveillance Powers, R97 (29 June 2007) at [5.30] significantly rejected a power to search beyond the person of the arrestee:

“ … a vast array of items in any home could cause harm or facilitate escape, ranging from wine bottles to keys to cutlery. To allow an incidental search for these purposes is in effect to authorise a fishing expedition (no matter how narrowly defined in terms of proximity to the exact place of the person’s arrest), because it would authorise looking for virtually anything.”

Witness credibility, absence of cross-examination, and trial fairness: R v Samaniego, 2022 SCC 9

Reading R v Samaniego, 2022 SCC 9 (March 25, 2022), and its excellent summary by Henna Mohan at thecourt.ca , might leave you wondering about the extent to which defence counsel has a duty to obfuscate evidence tendered by the prosecutor.

First, some general observations will occur to readers in relation to the role of defence counsel in a trial.

All counsel have a duty not to mislead the court, but this does not mean that defence counsel must assist the court to recognise the truth of the prosecutor’s evidence. Not misleading  the court has a narrow meaning: not knowingly stating facts or points of law incorrectly; not suggesting something for which counsel has no proper grounds; not departing from the client’s instructions in order to present a better defence on invented facts. Given that counsel would recognise the impropriety of doing those things, the primary duty to the client does not detract from the duty to the court.

If, in cross-examination, defence counsel can make a witness’s testimony less clear or less intelligible than it appeared at first, counsel for the prosecution will have the opportunity to re-examine the witness and seek to restore clarity and intelligibility. It is, given that, not improper for defence counsel to attempt to “muddy the waters” in the interests of the client.

All this must be done within the confines of fairness, and that is a matter for the trial judge. Powers to exercise this sort of control may be statutory (for example in New Zealand we have s 85 of the Evidence Act 2006). Essentially, questions that are “improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand” must not be allowed.

Where the defence strategy is to obfuscate prosecution evidence, that must therefore, on this statutory formulation, be done without improper, unfair, misleading or needlessly repetitive questioning, and without using language that is too complicated for the witness to understand.

The exercise of judicial control over the questioning of witnesses is called, in Samaniego, an aspect of trial management.

Some questions must be disallowed if they seek to introduce inadmissible evidence, and that is a matter of law, not of trial management. The majority judgment at [25] sets out the different approaches on appeal to evidential rulings and to trial management decisions:

“Trial management decisions and the rules of evidence must generally remain separate issues on appellate review. The standard of review for evidentiary errors is correctness, while deference is owed to trial management decisions. Extricable evidentiary errors are held to a more stringent standard of review than trial management decisions. The trial management power is not a license to exclude otherwise relevant and material evidence in the name of efficiency.”

Experienced barristers will have noticed that the very best cross-examination is brief and to the point. Of course there may be exceptions to this, for example where a witness’s evidence has covered numerous topics, each of which contains material that has to be challenged. And there may be cases where aspects of a witness’s character that could impinge on the accuracy of testimony need to be exposed by careful probing. But generally, brevity is best.

“The art and skill of advocacy is ‘a highly refined one whose very best practitioners may manage to persuade in the face of facts…’ ” [ L. Zedner Criminal Justice (Oxford University Press, 2004) at p. 169, cited in Edward Johnston, “The Defence Lawyer in the Modern Era” at p 35]. 

If I were to criticise Samaniego, I would say this. We may wonder whether the Canadian appellate courts’ tendency to resort to deference is really appropriate. Deference is a weakness in appellate powers. To decline to review a decision, saying that the decider was in a better position to make the decision, is to deny a right of appeal. This has crept into the posited distinction between decisions of law and decisions concerning case management. Is this a material distinction? As indicated above, in New Zealand this sort of case management, determining what questions are allowed, is a part of the law of evidence, and is certainly not a discretionary matter (as the word “must” in s 85 indicates). Again, the Canadian courts in this regard seem to be withdrawing from their appellate role and denying rights of appeal.

Regardless of who caused the error in this trial, there was a failure to cross-examine on a matter directly relevant to the credibility of the only witness who gave evidence on the sole issue in the case. This amounted to a denial of the fundamental right to challenge evidence adduced by the prosecutor. It was a fundamental failure of trial process, and regardless of the likely effect of the error on the outcome of the trial, there had not been a fair trial and a new trial should have been ordered. It was wrong of the majority to say, at [35]-[36], on appeal we don’t consider what better decisions may have been made by counsel. That is another denial of appeal process. Case management should require trial judges to ensure trials are fair, and it seems odd that if a judge realised that counsel was making a mistake (here, thinking an inconsistency occurred between the witness’s second and third statements, when in fact the inconsistency was between those two and the first statement), the judge could simply keep quiet and let the error amplify, and that appellate judges could treat it as an error that was inconsequential.

I don’t ignore the apparently persuasive aspects of the majority judgment. But consider how a juror might have reacted had the witness’s inconsistencies been exposed. The witness identified in his second and third statements who had the gun initially, but in a first statement the witness didn’t know who had the gun initially. Is the witness a careful person who speaks with precision? Is the witness’s subsequent account an innocent invention? How reliable is the witness’s memory? Why did the statement change? Can we be sure the witness is accurate now?

So, while it is tempting to say that this is one of those rare cases where absence of cross-examination in relation to credibility did not prevent the appeal court from correctly deciding that the witness’s trial evidence was credible to the criminal standard of proof, in the context of the admitted animosity of the witness towards the appellant (in contrast to the admitted friendship between the witness and the co-defendant), there must, in my respectful opinion, be a reasonable doubt and the appeal should have been allowed, perhaps with a retrial being ordered.

There is nothing unusual about having strong dissenting judgments in final appeals. Law is just a numbers game. [1]

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[1] I must admit I thought I was being a bit cheeky in saying this, but later I came across this: "...In Fitzleet Estates Lord Wilberforce explained (p 1349) that doubtful issues have to be resolved and “the law knows no better way of resolving them than by the considered majority of the ultimate tribunal”. ": Chandler v The State (No 2) (Trinidad and Tobago) [2022] UKPC 19 (16 May 2022) at [63].

Statutory interpretation, extraneous materials, the rule of lenity: Wooden v United States No 20-5279, March 7, 2022

Judicial approaches to statutory interpretation can be contentious, even among judges of a final appellate court.

This is illustrated in a recent decision of the Supreme Court of the United States, Wooden v United States, No 20-5279, March 7, 2022.

Here, the phrase “committed on occasions different from one another”, used in relation to a series of offences, was said to be ambiguous when applied to ten burglaries committed by Mr Wooden when he had entered a storage facility on one evening (some two decades ago) and had stolen items from ten different units in that building.

The penalty for which he had been sentenced on the present occasion turned on the number of his previous convictions.

Obviously, the burglaries were not committed simultaneously, but were they committed on different occasions?

One thing courts sometimes do in cases of statutory ambiguity is to have a look at what the legislators were considering and saying when the legislation was proposed.

Is that passing the buck? Should the judicial branch call in the aid of legislators in that way? In this case, Barrett J cautions against judicial resort to extraneous materials: “I would impute to Congress only what can fairly be imputed to it: the words of the statute.”

The ordinary meaning of “occasion” applied here led to the conclusion that the ten burglaries were indeed committed on the one occasion.

But if there had been ambiguity, how should that be resolved? Gorsuch J considers in some detail the “rule of lenity”, which is (here) that an interpretation favourable to a defendant in a criminal case should be preferred. This rule should be applied once ambiguity is identified.

However, Kavanaugh J, criticises Gorsuch J’s reference to the rule of lenity, saying that it should only be applied as a last resort, because there are other interpretive techniques (such as, in contexts other than the present, the presumption of mens rea) that can be used to address ambiguity. This means that the rule of lenity will “rarely if ever” have a role.

In Wooden the Court was unanimous as to the reversal of the decision of the Court of Appeals for the Sixth Circuit.

I have previously referred to cases on the rule of lenity: here, and here.

Waving the flag: Pwr v DPP [2022] UKSC 2

Flag waving during a demonstration in public in central London was an offence in Pwr v DPP [2022] UKSC 2 (26 January 2022).

Legislation, described at [2], made it an offence for a person to carry or display an article in a public place “in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”. The offence is summary only and the maximum penalty is six months’ imprisonment.

Apart from the carrying or displaying having to be done knowingly, which was not in issue here, the prosecutor did not have to prove that the defendants (appellants) intended to arouse the necessary suspicion required for the actus reus.

The judgment illustrates the established approach to statutory interpretation in determining whether an offence is one of strict liability, applying it here to the language of the provision, the statutory context, and the purpose of the provision creating the offence.

Here, if mens rea was required, what would it be? Answering that was a task of “immense difficulty” [37].

A second aspect of the decision is determination of compliance with the law on limitation of the right of free speech. The decision involved consideration of factors (which were not criteria) and their interrelationship in the context of the circumstances of the case. It was not necessary for the defendants to have incited violence before the specific limitation on their flag-waving created by the relevant offence was justified.

How delightful it was to see Smith and Hogan, Criminal Law, 5th and 6th eds referred to at [51]. I can report that the passage quoted there also occurs in my older copy (I have it before me now), the 4th ed (1978) at p 816, discussing s 2(1) of the Prevention of Terrorism (Temporary Provisions) Act 1976.

Also delightful to see Sweet v Parsley [1970] AC 132 cited [29]. Almost makes one nostalgic for law school. Not quite, though.

Mistakes that are not innocent mistakes: Bell v Tasmania [2021] HCA 42

Criminal responsibility is not usually imposed on people who are in no way morally blameworthy. At least, that is so for serious crimes as opposed to purely regulatory offences. There may be some vagueness over where the boundary is there. And, notoriously, at the opposite extreme, opinions may differ over what can reasonably be required of people who are subject to great levels of stress, such as shipwreck survivors who kill and eat a moribund occupant of their lifeboat.[1]

Mistakes may be made by a person who performs acts that constitute the physical elements of an offence. Some of these mistakes may amount to a denial of the mental elements necessary for criminal responsibility (we call those the mens rea elements). There is nothing controversial about that, as long as the mistake is about fact and not about the law defining the offence. But, sometimes a mistake may be made about some material circumstance (that is, a physical element of the offence, but one that does not engage a mental element), and it may raise a question as to whether it is right to impose criminal liability.

What would the conditions be for an acceptable exculpatory mistake about such a circumstance? Honesty and reasonableness seem to be obvious requirements: the mistake should be one that a reasonable person would have made, and it should have been made honestly, in good faith.[2]

The excuse[3] of mistake was discussed in Bell v Tasmania [2021] HCA 42 (8 December 2021). Here the emphasis was on another aspect of acceptable mistakes: they must be about the “innocence” of the conduct.

The offence here was supplying a controlled drug to a child, and a child was defined as a person under the age of 18 years.

The defendant (appellant) had injected a person with methamphetamine, thinking that the person was over that age.

Supplying the drug to another person was, and is, a separate offence. The mistaken belief, even if it had been honestly and reasonably held, was not an innocent belief: it was belief that another offence was being committed.

The appeal was unanimously dismissed.

Kiefel CJ and Bell J at [9] mentioned historical concerns over the acceptability of a gap between moral culpability and criminal responsibility, and at [12] the common law criterion of the rightness of branding the defendant as a felon and applying punishment. Those concerns were not present where the mistake warranted conviction for an offence: [13], [15]. A provision excusing a defendant from all criminal responsibility for the relevant conduct does not operate in an absence of belief that the conduct was lawful. This contrasts to a corresponding provision in Queensland, whereby the defendant is excused to the extent of the facts that were believed to exist, so that on the facts here the defendant would be excused for supplying the drug to a child but convicted for supplying it to a (non-existent) adult: [18]. The Tasmanian legislature had decided not to follow the Queensland enactment: [23].

Gageler J agreed that under the Tasmanian legislation, the defendant must think the conduct was innocent, that is, not an offence at all. Gordon and Steward JJ came to the same view: [46]-[47], and observed that this conclusion was not harsh, unfair, or contrary to the principles of the criminal justice system: [48]. Edelman and Gleeson JJ were of the same mind: [54], and they embarked upon an extended examination of the development of the common law excuse of honest and reasonable mistake. Again, the mistake must be such as to excuse all the conduct, and here it did not: [105].

It was significant in Bell that no issue was taken over the extent of the mental elements of the offence: the prosecutor only needed to prove the intention to supply the drug. There was no requirement for the prosecutor to prove that the defendant knew or believed the recipient was a child: Kiefel CJ and Keane J at [5], Gordon and Steward JJ at [41], Edelman and Gleeson JJ at [71]. This meant that the issue was not absence of mens rea, but instead was the applicability of the excuse of mistake.

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[1] You certainly don’t need to be reminded of R v Dudley and Stephens, and the ridiculous prospect of judges making law which they acknowledge they could not themselves obey. But I just mention that case as an aside: it is not a “mistake” case, but rather it is a “boundaries of the criminal law” case.

[2] Self defence can encompass mistakes, but the requirement may be that they are honest mistakes, even if not necessarily reasonable mistakes; the reasonableness requirement attaches to the force used in self defence. See, for example s 48 of the Crimes Act 1961 [NZ]. When I was a law student this provision used the masculine pronoun only, but now we have the recognition that some people are female: “Every one is justified in using, in the defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use.” This plainly needs updating, for now we have more pronouns in recognition of the LGBTQ+ people. Where will this end? To the revisers of statutes, I recommend (consistently with my stubbornly-held view: here) avoidance of all personal pronouns here. Try it.

[3] Is it an “excuse”, or a “justification”? The reasonableness requirement suggests justification (compare self defence in note 2 above). Absence of moral blameworthiness also suggests justification. But the expressions might be used without any intention of drawing a distinction between them.

Conviction appeals and judicial differences - lack of unanimous appellate verdict in a final appeal

In most appeals against conviction the focus is, to use the broadest of non-technical descriptions, on errors and on the soundness of the verdict at trial. In such appeals, differences among judges can occur on each of these matters.

An illustration is Hofer v The Queen [2021] HCA 36 (10 November 2021).

On whether there had been a qualifying error, Kiefel CJ, Keane J, Gleeson J (jointly) and separately, Gordon J, held that there had been such an error. Gageler J, while agreeing with the plurality in dismissing the appeal, held that there had been no such qualifying error.

And on whether the verdict at trial had been sound, the plurality held that it was, but Gordon J held that it wasn’t, and Gageler J didn’t need to address this question.

The case is of wide interest to appellate buffs, partly because of Gageler J’s recognition that he was bound by an earlier decision of the High Court (Weiss v The Queen [2005] HCA 81, discussed critically ten times on this site so far - use the search box) even if he disagreed with it, because its correctness was not in issue in this case: [97], and partly because of his discussion of how Weiss reorientated the function of appellate courts in deciding this type of conviction appeals: [85].

If appellate judges find that an error at trial was significant, in the sense that it created a real chance (etc, [120]) that it affected the verdict, then the appeal judges must themselves reach their own verdict on the available record (and on such new evidence as may be admissible on appeal), unless for reasons usually relating to the issues at trial - such as assessments of witness credibility - it is impossible to do so.[1] The Supreme Court of New Zealand has given itself this function too, by means of what I think is a rather strained application of techniques of statutory interpretation. See my discussion here, on 1 July 2021.

The appellate verdict in Hofer was not unanimous. The majority verdict favoured the upholding of the conviction. As this verdict was not unanimous, should a retrial have been ordered? And, in any case where an appellate verdict unanimously favoured there being a reasonable doubt about the appellant's guilt, would it be appropriate to order a retrial, or should an acquittal be entered?

The plurality judgment in Hofer contains a helpful discussion of the implications of non-observance of the rule in Browne v Dunn in criminal cases: [29]-[37].

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[1] Update: For illustration of circumstances where the Court considered it was inappropriate for it to reach a verdict, and instead ordered a retrial, see Orreal v The Queen [2021] HCA 44  (16 December 2021).

Rights consistent reading-down of the three strikes sentencing legislation

Our Supreme Court has allowed the appeal against sentence in the Fitzgerald case which I mentioned here on July 17, 2020: Fitzgerald v R [2021] NZSC 131 (7 October 2021).

The case required interpretation of (mainly) s 86D(2) of the Sentencing Act 2002:

(2) Despite any other enactment, if, on any occasion, an offender is convicted of 1 or more stage-3 offences other than murder, the High Court must sentence the offender to the maximum term of imprisonment prescribed for each offence.

It was universally acknowledged that in this case the result of application of a literal interpretation of this subsection was well beyond excessive punishment for the offence and it would shock the conscience of properly informed New Zealanders. This level of punishment was, in this case, a breach of s 9 of the New Zealand Bill of Rights Act 1990:

9 Right not to be subjected to torture or cruel treatment

Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.

Does the phrase in s 86D(2), “Despite any other enactment” include s 9 of the Bill of Rights?

Deciding this can require considering an interpretive provision of the Bill of Rights, s 6:

6 Interpretation consistent with Bill of Rights to be preferred

Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

Here, the phrase “can be given” is important. How big a stretch is permitted by this phrase?

The role of s 6 is not necessarily central to reasoning, because the common law has parallel interpretive tools, particularly the principle of legality (discussed here on 11 February 2021 in relation to D (SC 31/2019) v Police [2021] NZSC 2 ). These parallel tools may be used in combination, or separately.

In this appeal the majority judges were Winkelmann CJ, O’Regan and Arnold JJ jointly, and Glazebrook J.

Winkelmann CJ reasoned that s 6 goes beyond the principle of legality [57], describing it as a powerful interpretive obligation [73]. Noting that the common law permits, in appropriate circumstances, the reading-in and reading-down of legislation [59]-[62], and remembering that the result must not be a refusal to apply legislation [66], she concluded that an exception can be read-in to s 86D(2), [112]-[121]. This was consistent with the purpose of the provision [122] and it applied only where s 9 of the Bill of Rights would otherwise be breached [137]. Further, where the exception applies and ordinary sentencing principles come into play, these are supplemented by a principle requiring a stern sentencing response to such recidivism [138].

On the other hand, O’Regan and Arnold JJ relied primarily on the principle of legality as permission for reading-in the exception to s 86D(2). They pointed out [206] that it would have been easy for Parliament to have specified that the provision applied despite the Bill of Rights. Section 6 requires a similar approach to that adopted under the common law principle of legality [207]. After surveying decisions they concluded [215] that apparently unrestricted general words are not sufficient to displace presumptions reflecting core legal values. There are more such values than are included in the Bill of Rights, and in this sense the principle of legality is wider in scope than s 6 [217]. Explicit statutory language is required to override the right protected by s 9 [218]. A rights-consistent meaning of s 86D(2) can be given under s 6 without defeating Parliament’s purpose [219]. This conclusion is supported by another principle of interpretation: that legislation should be read, so far as possible, as being consistent with New Zealand’s relevant international obligations [225].

Glazebrook J, agreeing in the result reached by the other majority judges, was careful to say what she was not making any comment about. See footnote 337, para [243], [244] and footnote 348, [245] and footnote 351, footnote 352. She applied ordinary principles of interpretation, namely the purpose of the legislation [249], the need for reading-down in the light of the principle of consistency with international law and with fundamental human rights, and the constitutional status of the Bill of Rights [250], and the principle of legality [251]. She added in footnote 363: “I do not wish to comment on the relationship between s 6 of the Bill of Rights and the principle of legality, except to say that I agree with Winkelmann CJ that s 6 of the Bill of Rights may go further than the principle of legality.” At footnote 366 she did not agree with the Chief Justice’s comments regarding a stern sentencing principle being added because of s 86D(2).

The majority judges agreed that where the read-in exception resulted in the application of ordinary sentencing principles in a particular case (such as this), a discharge without conviction could be considered, although it might only rarely be appropriate. The question of sentence was remitted to the High Court.

The interpretation of s 6 is now delicately poised: Winkelmann CJ [67] appears to be willing to give it a strong meaning, consistent with Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557, while William Young J [294]-[302] (the dissenting judge in this appeal) is more conservative, requiring a rights-consistent interpretation to be reasonably available. The other judges appear to be reserving their positions on this issue.

Personally, and I just say this to get you thinking, my view at present is that the interpretation of s 6 is only a delicately poised issue because Lord Cooke refused to accept he had been wrong in Phillips.

Fair criticism?

Yesterday our media published an article critical of a judge who had repeatedly failed to direct juries correctly on the burden and standard of proof in criminal trials. The article gave me the impression that the judge was stubbornly refusing to follow Court of Appeal corrections of his approach.

I don’t know the judge, but I note that he has now retired.

Close inspection of the four cases shows that the Court of Appeal did not start dealing with these appeals until after the fourth trial. The same pattern applies to other cases alluded to in the article. This means the judge may not have been alerted to the errors as identified by the Court of Appeal.

It may even be that the judge had simply been following an out-dated (or what is now an out-dated) Bench Book model instruction set out for judicial guidance. I don’t know if that is so, because Bench Books are not available for inspection. The directions may have been toughened up after one of the Court of Appeal judgments, delivered on 8 October 2019.

The trials I am referring to were held in June 2016, December 2016, August 2017, and November 2017. The Appeal judgments were given in May 2018, April 2019, July 2019 and October 2019.

The media article linked above refers to the Court of Appeal's decision in R v Wanhalla [2006] NZCA 229, but the judgments in that case, delivered by three judges jointly and two judges each separately, can be read as not being expressed in mandatory terms; for example, from the joint judgment at [48] "something to be said ... at least in broad terms", [49] "inclined to the view that Judges should ...", [52] "there is no single formula which is required", "we are not to be taken as asserting that the formula just stated is mandatory", "It is sufficient to make it clear that the concept involves a high standard of proof which is discharged only if the jury is sure or feels sure of guilt."

And the Court in Wanhalla was not intending to change the way judges directed juries on the burden and standard of proof: [53] "It is most unwise for appellate courts to change course suddenly as to how trial Judges must sum up on the standard of proof."

Problems arising from departure from the Wanhalla direction were only becoming evident to the Court of Appeal by May of 2018, and on 8 September 2019 the Court said that such departure "is a perilous course." This firming-up of the status of the Wanhalla direction only occurred after the cases criticised in the article mentioned above.

The lengthy time it takes to get guidance from appellate courts could be blamed for the numbers of trials containing errors.

It is important to be fair when criticising anyone. It seems to me that the criticisms here may not have been soundly based.

My discussion of our leading case on the burden and standard of proof is here, and the Australian case is discussed here.

Update: You might like to look at a paper by Jason Anthony Aimone et al., "An Experimental Exploration of Reasonable Doubt" (14 September 2021), in which the results appear to suggest that jurors are influenced more by their own pre-conceived ideas of what a reasonable doubt is, than by directions from trial judges, and that differences in assessments of the standard of reasonable doubt correlate strongly with jurors' race.

Convictions arising from "the same facts": availability of the special plea of previous conviction

Whether a plea of previous conviction is available depends, in New Zealand, on the application of s 46 of the Criminal Procedure Act 2011. In particular, the phrase “arising from the same facts”: does the present offence arise from the same facts as an offence for which a conviction has been entered?

I used to think that this has the effect of requiring the prosecutor to allege all the relevant offences in the one proceeding, to avoid dragging things out with multiple separate prosecutions.

However, it has been made clear by the Court of Appeal that it is necessary to examine the essence of each charge and to compare the facts needed for proof to see to what extent there is an overlap. Some overlap will occur, but is it an overlap to the extent of giving rise to “sameness”? See Rangitonga v Parker [2016] NZCA 166, [2018] 2 NZLR 796.

A clear explanation has been given recently (31 August 2021) in Mitchell v Police [2021] NZCA 417. The Court adopted Venn diagrams as suggested by counsel. The issue was whether a conviction for driving with excess breath alcohol was a bar to conviction for driving on the same occasion contrary to the terms of a zero alcohol licence. The common fact was driving with alcohol in the breath (not per se an offence). The offences were held not to arise from the same facts, because in essence the breath alcohol offence arose from the level of alcohol in the driver’s breath, and the licence offence arose from the zero alcohol terms of the licence.

The Court noted at [36] that it did not favour the analysis which seems to have found favour with the Supreme Court of South Australia in two cases advanced by the appellant: Arthur v Police [2008] SASC 213, (2008) 101 SASR 529 at [42] and Jones v Police [2019] SASC 36, (2019) 135 SASR 255 at [51].

Update: on 14 December 2021 the Supreme Court granted leave to appeal.

Another update (7 July 2023): It is now over a year since the Court heard oral argument on this appeal. In the interests of free discussion, I offer the following observations:

1. In this case the charges were filed at the same time and pleas were taken on the one occasion. Usually, charges would be read and pleas entered, a prosecution summary of facts would be read, and the bench would invite submissions before deciding whether convictions should be entered (and if they were entered, they could nevertheless be provisional if an application for a discharge without conviction was to be made). If convictions were entered, the judicial officer would usually enter those by the speech-act of announcing that "on each charge the defendant is convicted". That is, convictions would be entered simultaneously, not sequentially, and no question of there being a previous conviction would arise. But here, as described at [17] of the CA judgment, the judge suggested a plea of previous conviction to the second charge. This unusual intrusion into the decision on plea set this particular ball rolling. However, it did create an opportunity to resolve an important issue: does sequential entry of pleas on one occasion create opportunities for entry of pleas of previous conviction?

2. The application of the rules concerning previous acquittal and previous conviction in ss 46 and 47 of the Criminal Procedure Act 2011 to sequential, not simultaneous convictions, is apparent in the phrases in (for example) s 46: "has been convicted", "currently charged", "was convicted", and "not readily available ... at the time the charging document for the more serious offence was filed". This reflects the policy of promoting finality, which is the main policy underlying the protections against double jeopardy.

3. The appellant correctly submitted on this appeal that the focus of s 46(1)(b) is on the facts rather than the offending. But the reference is to "those facts", and the issue is how broadly to construe that phrase. It seems to me that this points to the date and time of the commission of that offence and of the obtaining of the information about it by enforcement authorities. This is consistent with the exception delineated in s 46(2)(b). Construing "those facts" broadly in this way is also consistent with the breadth of the expression "any other offence" in s 46(1)(b).

4. In this case the question becomes, what information was obtained when the appellant was apprehended? He was driving on a road, he had an alcohol level over the limit, he was in breach of his zero-alcohol licence.

5. The appellant was properly charged with two offences and could have been simultaneously convicted of both. But it would have been a breach of s 47 if he had been charged with and convicted of one of those offences and later, perhaps after he had served his sentence for that, charged with the other. The second offence arose from the same facts as the first.

Update: Mitchell has been decided, as noted here on 11 August 2023.

Registrars and disputed bail conditions

In New Zealand we have no statutory right of appeal against a decision of a court registrar concerning bail. Registrars may determine what, if any, conditions are to be imposed in a grant of bail, pursuant to s 27(2) of the Bail Act 2000. The relevant appeal provision, s 41, does not refer to appeals against decisions of registrars.

I have always thought that a bit strange. True, registrars can only deal with bail if the prosecutor consents, but what sort of safeguard against onerous bail conditions is that?

And in the real world, a defendant may well decide to sign an onerous bond and get out of court as soon as possible, instead of waiting to have the registrar’s decision challenged. I have heard defendants say, “Nah, fuggit, I’m out of here.”

I asked the Minister of Justice in 2012 whether there should be clarification of this in the Act. After seeking the advice of “officials” she replied to the effect that no action was considered necessary.

The inference is that registrars should only impose bail conditions with the agreement of the defendant - although in the aforementioned reality freedom of choice is somewhat limited. And what if a registrar decided to impose a condition over the objection of the defendant?

Matters such as these have received some clarification in a recent case that is primarily concerned with the inherent power of the judges of the District Court to supervise and direct registrars in the conduct of judicial business: District Court at Christchurch v McDonald [2021] NZCA 353 at [38]: 

“… Parliament’s expectation was that while registrars would assist judges by determining some bail applications, that undertaking would remain subject to usual judicial oversight and supervision.”

Clearly, Parliament failed to put its intention into statutory words, presumably having confidence that we would play the game and guess at this.

Rights of appeal are statutory, and it is most unlikely that anyone would have thought to have resort to submitting that a judge of the District Court has inherent power to hear appeals. Indeed, the position alluded to in McDonald, which was really all about the power of a judge of the Family Court (a division of the District Court) to remove bail decisions from registrars, seems to be that the Chief Judge of the District Court would issue a direction that if a defendant objected to a proposed bail condition the registrar would, instead of making any decision, refer the issue to a judge.

This would avoid the suggestion of any appeal or a review. Indeed, review would be inappropriate because it would assume a degree of discretion exercised by the registrar and the judge would only intervene if that discretion had been exercised unreasonably. Far better for the judge to approach the question of bail de novo.

To ensure the point is not buried in the stack of judgments, a practice direction should be published so that, in the event that a registrar may be unaware of the proper practice, the procedure could be pointed out to that person.

Bail conditions that a defendant may think are onerous are usually imposed to help the defendant avoid getting into further trouble. People for whom that is a rather subtle point would be assisted if it were made by a judge rather than a registrar. McDonald speaks of judges, not mentioning the other judicial officers of the District Court: Justices of the Peace and Community Magistrates. Putting disputed bail matters before judges would be the most efficient course, because judges hear appeals from determinations of the other judicial officers, so the issue will end up with a judge anyway.

Update: The Supreme Court refused leave: McDonald v District Court at Christchurch [2021] NZSC 149 (5 November 2021), saying at [11] that it was not persuaded that it was arguable that the Court of Appeal had been wrong in the way it addressed the issues.