Attempting to have possession of a controlled drug

If legislation [1]  has omitted to provide for an offence of procuring a controlled drug for supply, and so also omitted an offence of attempting [2] to procure the drug for supply, can there be implied into the legislation an offence of attempting to have possession of a controlled drug for supply?

This was a puzzle that intrigued subtle-minded law students when I was at law school.

It raises questions about the interpretation of criminal legislation: should the narrow view be taken, so that it is for the legislature to plug the gaps if that is what it wants to do, or should the courts fill in the gaps on behalf of the legislature under the guise of applying what is thought to be the legislature’s intention?

There could be good reasons for the omission from the legislation of an offence of attempting to have possession for supply. For example, possession for supply is a state of affairs, of itself causing no harm to anyone. It doesn’t make a drug available to potential users (that is addressed by the offences of importing, manufacturing, cultivating, supplying). The offence of possession of a drug was introduced relatively late in the history of our drug laws. [3] It is a sort of preparatory (inchoate) offence. Of itself, it is less of a threat to the community than conspiracy to supply a drug, or attempting to procure a drug. Those offences will usually involve interaction with other people, and it is their combined interest in the drug that is the threat to the community. A person who has possession of a drug for supply could be said to be on the threshold of committing a more serious offence. There might follow an attempt to supply the drug. The possession might be part of, or might lead to, a conspiracy to supply the drug. No one doubts that there are such offences as attempting to supply a controlled drug and conspiracy to supply a drug. The law extends plenty of community protection in such circumstances. And the offence of attempting to procure the drug is available too, but the penalty is  (deliberately, in view of the reduced societal threat) lower. [4]

On the other hand, perhaps it is so obvious that there is an offence of attempting to have possession of a drug that there was no need for the legislature to say so. Possession is an offence, and an offence can be attempted. [5] The ingredients of the offence are: having an intent to have possession of the drug, and doing or omitting an act for the purpose of achieving that possession, as long as that act or omission is not merely preparatory for the commission of the possession. This is really the same as attempting to procure the drug, but there is no offence of procuring a drug for supply and therefore no offence of attempting to procure a drug for supply. So, on this interpretation, an offence of attempting to have possession of a drug for supply does the same work.

Strict interpretation, or purposive interpretation? Which shall it be?

The history of this issue, and its present resolution, is addressed in Mesman v R [2022] NZCA 418 (7 September 2022).

The phrase that sticks out for me, probably because it must have been written with a twinkle in the eye, is in para [23]: “Statutes … have never been a safe haven for the grammarian …”. Of course this is not to be taken literally, because grammar is of fundamental importance in statutory interpretation. But it flags a pragmatic approach in the service of harm reduction.

The appellant had tried to obtain delivery to herself of a package by courier ([4]-[7]). My knowledge of this case comes entirely from the judgment, but it seems to me that the appellant may have been liable as a party to the attempted supply of the drug to herself by inciting that attempt. [6]

The Court in Mesman held that there is an offence of attempting to have possession of a controlled drug.  Noting at [22] that the Crimes Act “criminalises attempts to commit any offence”, the Court begged the question. The Crimes Act does not criminalise attempts to commit “any” offence, but uses the word “an”, which can mean “an offence that can be attempted”. A ruder person that I could think that judgments have never been a safe haven for logicians. And of course they haven’t, for policy has its place and may well override logic in matters of statutory interpretation.

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[1] The legislation relevant here is s 6 of New Zealand’s  Misuse of Drugs Act 1975.

[2] Our relevant attempt offences are provided for by s 72 of the Crimes Act 1961.

[3] The first of our drug possession offences was introduced in 1908 and referred to opium that had been imported in contravention of customs legislation. The first drugs legislation was the Sale of Poisons Act 1866 and this was directed at the labelling of containers of poisons which included opium and laudanum. Then, in 1871 an upgraded Act required vendors of poisons to be registered.

[4] Procuring is an offence against s 7(1)(a) of the Misuse of Drugs Act 1975, and the attempt is an offence against s 72 of the Crimes Act 1961, with the penalty provided for in s 311 of that Act (a maximum of half the penalty for the full offence).

[5] But “an” is not necessarily “any”. If it were, there would be an infinite series of attempts to attempt.

[6] Party liability is governed by s 66 of the Crimes Act 1961. By consigning the drug to the courier, the supplier did everything necessary to commit the attempt to supply the drug to the appellant. By inviting that attempt, the appellant appears to be liable for the incitement. There is some conflict of authority on whether the supply must have been intended for someone else (the offence is “supply to any other person”, s 6(1)(c)), but it seems sensible to say that the other person is the appellant. This is the approach taken in R v Drew [2000] 1 Cr App R 91, [1999] Crim LR 581  (CA).

The principle underlying judicial recognition of retrospective removal of a defence: Stephens v The Queen [2022] HCA 31

If the legislature changes the law by removing a defence, and that change is not specified to apply to trials that have commenced and not been completed when the enactment takes effect, does the change apply to such trials?

Broadly, this was the issue in Stephens v The Queen [2022] HCA 31 (7 September 2022). It arose from a complicated interplay of charges and legislative change. To summarise, again broadly, there was uncertainty over when some of the offences charged were committed, and the time of their committal was relevant to whether an offence which otherwise might have been proved had then been repealed. This difficulty was belatedly addressed by the provision that had to be interpreted, s 80AF of the Crimes Act 1900 (NSW), which is set out at [19] of the judgment.

Here, the trial started (according to the relevant procedural meaning of the start of a trial applied by the 4-1 majority) on 29 November 2018, and s 80AF came into force two days later, on 1 December 2018. If s 80AF applied to this trial then a defence would be removed: [22].

Given that the legislation itself did not answer the question, this became an exercise in ascertaining the reasonable expectations of those who acted in reliance on the assumption that the known state of the law at the time that actions were done will determine their legal consequences: [33].

That is the underlying principle. It does not involve wrestling with difficult distinctions (substantive or procedural law: [31]-[32]) and difficult nomenclature (retrospective or retroactive legislation: [29]). Artificial distinctions must not be allowed to control the underlying principle: [32].

As to ascertaining the relevant reasonable expectations, the fundamental principles of criminal law, the accusatorial process, and the law in force at the relevant time will be informative [33], and the force of the presumption that the reasonable expectations will be determinative will depend upon the circumstances, as described at [34].

The Court was unanimous on the “reasonable expectations” test for determining whether retroactive effect was intended, and on the relevance of the nature of the rights that had been altered (at [49]), but Steward J dissented on whether in this case Mr Stephens did have reasonable expectations that were significantly disturbed by the application of s 80AF to his trial. Steward J took a different view on when the trial started ([55], compare majority at [8]), holding that s 80AF was in force before the trial started [56]. He examined preparatory materials to ascertain the legislative intent, concluding that s 80AF was intended to apply to trials that had commenced [61], [67], and Mr Stephens’s lawyers would have been well aware of the change in the law when it was pending and they were preparing his trial [68]. In short, Steward J described Mr Stephens’s position as seeking to have these convictions quashed merely because he was formally arraigned for the first time two days before s 80AF came into force.

Identifying unlawful benefit

Calculating a person’s unlawfully obtained benefit from criminal activity can raise some complicated issues.

Suppose a lotto ticket has been bought with illegally obtained funds, and it wins first prize. Is the unlawful benefit the value of the prize?

What if the ticket had been bought mostly with lawfully obtained funds, but to a small extent with unlawfully obtained money? Is the unlawful benefit the proportion of the prize that is the same as the proportion of the ticket cost that was paid with unlawfully obtained funds? Or, if the ticket could not have been bought at all without the small contribution of the unlawfully obtained funds, is the unlawful benefit the whole of the prize?

And what if the ticket could have been bought with lawful funds, but the purchaser absentmindedly reached into the wrong pocket for the money?

What if land is bought with unlawfully borrowed funds, and at some stage during the period the land is owned the loan is repaid with lawfully obtained funds, and throughout this time the land steadily grows in value?

What if a contract to do work is obtained dishonestly, but the work is done satisfactorily? What if the contract would still have been awarded even if the dishonesty had been known to the other party? What is the relevance of the absence of any loss to the deceived party?

And, as occurred in R v Andrewes (Defendant) [2022] UKSC 24, what if employment is obtained as a consequence of presentation of a dishonest c.v.? How much influence might the false representation have had on the successful application for the job? If the work was done satisfactorily and remunerated according to the contract of employment, what was the unlawfully obtained benefit? What if there had been no other applicants for the job? Or no applicants remotely suitable?

In Andrewes the Court reviews some cases where these sorts of questions are considered. The main one is R v Waya [2012] UKSC 51, [2013] 1 AC 294, which I have discussed here .

And for those of you who are pronoun buffs, try rewriting the first paragraph of Andrewes to remove the gender pronouns:

This appeal raises an important issue on the confiscation regime laid down by the Proceeds of Crime Act 2002 (“POCA”). It concerns what is often referred to as “cv fraud” (“cv” being shorthand for “curriculum vitae”). Typically, as in this case, this occurs where a fraudster includes lies on his or her application form for a job (for example, by including qualifications or experience which he or she does not have) and, as a result, is appointed to the job. The fraudster performs the agreed services satisfactorily and is paid the agreed salary until the fraud is discovered. On a conviction for fraud, should there be a confiscation order stripping the fraudster of his or her earnings (net of tax and national insurance)? In particular, would such a confiscation order be disproportionate under the proviso in section 6(5) of POCA? 

My suggestions:

 …. lies on an application form …

… by including non-existent qualifications …

… stripping the fraudster of those earnings …

Ho ho. And happy blog-birthday to me for tomorrow! Eighteen years! Merde, how time flies.

How much of the work should a final appeal court do? Two remittal and retrial decisions of the High Court of Australia.

Sometimes one wonders why an ultimate appeal court orders new trials or refers issues back to lower courts. Why not decide cases finally, since they have arrived at the final appeal court?

Two decisions of the High Court of Australia today prompt these questions.

First, whether the High Court should have decided the issue itself instead of pointing out the error of the court below and remitting the case for reconsideration by that court. In Dansie v The Queen [2022] HCA 25 (10 August 2022) the Court corrected a view that had been held on the approach to appeals brought on the grounds that the verdict of the tribunal of fact - whether a judge alone or a jury - was unreasonable.

Having pointed out the error and having said what the lower appellate court should have done, the High Court remitted the case back to that court for it to follow the method set out. Couldn’t the High Court have saved time and expense by applying its own statement of the correct method?

Ironically, the error had been one of deferring to the assessment of the evidence by the fact-finder, instead of the first appellate court assessing the evidence for itself and making up its own mind on whether there was a reasonable doubt about guilt that could not be dispelled by taking into account advantages that the fact-finder may have had in assessing the evidence.

In this case there was no evidence that gave the fact-finder an advantage over an appellate court, so there was no reason to have any deference for the fact-finder’s assessment of the evidence.

This was one of those heart breaking cases about whether the death of the defendant’s spouse had been accidental. There was little dispute about the evidence, and the issue was what inferences could be drawn.

The High Court has clarified the law at [15]-[16], and has usefully referred to Pell at [13].

Secondly, on whether a new trial should have been ordered: O’Dea v Western Australia [2022] HCA 24 (10 August 2022): Here the issue was whether the liability of the person who actually commits an offence includes liability of someone who doesn’t actually commit the offence.

Simple, you might say, and simple it was - at least for the majority of the Court in a 3-2 split.

The prosecution had been brought on the basis that the defendant had been sufficiently involved to the extent that he was guilty even though it could not be proved that he did the act that was a necessary element of the offence, because of a sort of agency. There were alternative and proper ways of alleging guilt, but the prosecution case eschewed those and opted for the (incorrect) “actually does the act” but by way of agency basis for the alleged liability.

Having decided that the chosen basis means what it says, and that therefore the jury had not been left with the correct issues, the Court ordered a new trial. Wasn’t this double jeopardy? Why give the prosecution a second opportunity, after carefully spelling out at [79] what the prosecution needed to do? Could the High Court have done what it has recently decided it can do: assess the evidence for itself and decide whether there was a reasonable doubt about guilt under the law as correctly applied? In view of the prosecutor's stance at trial (see [41]) - accepting that it could not be proved beyond reasonable doubt that the criminal acts were done by Mr O'Dea - should a verdict of not guilty have been entered on this appeal?

Arbitrary detention, right to legal advice, a 5-4 split on final appeal: R v Lafrance, 2022 SCC 32

The first thing that strikes one on reading R v Lafrance, 2022 SCC 32 (22 July 2022), is that the Supreme Court of Canada was divided 5-4. This difference of opinion between the two judgments centred on evaluating the evidence on the issues of detention and access to counsel. The majority held that the Charter rights had been breached and on application of the balancing exercise set out in R v Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 the evidence was inadmissible. The minority found no Charter breaches and so did not need to consider the balancing exercise.

My impression is that this difference in evaluation of the evidence is illustrative of the inappropriateness, in the different context of appeals against conviction, of allowing appellate judges to act as juries. But don’t get me started on that topic.

More positively, or just positively, the majority in Lafrance set out at [90] the current approach to the balancing exercise in Grant. I have previously, and somewhat sarcastically, suggested that the original description of the process as a “decision tree” would be more appropriately put as an “impenetrable thicket”. But it seems that the thicket has been given the severe pruning it so richly deserved, a development going back at least as far as R v Le, 2019 SCC 34.

As you can see, in deciding whether or not admission of the evidence would bring the administration of justice into disrepute, the seriousness of the impropriety and its impact on the defendant’s rights are assessed cumulatively, and then weighed against society’s interests in adjudication of the case on its merits.

This admirably clear decision process is comparable to that which is set out in case law interpreting New Zealand’s s 30 of the Evidence Act 2006.

Truth-seeking? R v J.J., 2022 SCC 28

I don’t know how well the person who determines the wording of Canada’s federal laws speaks English. Look at this:

“(3) The judge shall, as soon as feasible, inform the complainant who participates in the hearing of their right to be represented by counsel.”

“Their” right? Why not say “the” right? Gratuitously bunging in unnecessary pronouns is surely one of the more shameful habits that can be picked up at university.

The provision I quoted is part of s 278.94 of the Criminal Code, so the Supreme Court of Canada is not entirely to blame for adopting this ugly usage in R v J.J., 2022 SCC 28 (June 30, 2022).

The case is of limited interest to those who are not subject to the law of Canada, but there are some points that catch one’s attention.

The Court follows its long-established practice of referring to a criminal trial as a “search for truth” (at [1]). Is this accurate? A commission of inquiry is a search for truth. A police investigation should be a search for truth. But a criminal trial is a test of the prosecution’s case as measured against the high standard of proof. Consequently, an acquittal is not a declaration of innocence. An acquittal is not a finding of truth. So, calling a criminal trial a search for truth is, to say the least, misleading.

The idea of the trial as a search for truth goes back to R v Mills, 1990 CanLII 135 (SCC) at [73]-[74], giving this as an example of a “principle of fundamental justice” which may embrace interests and perspectives beyond those of the defendant. It is “society’s interest in having the trial process arrive at the truth.” This, in my view, is a poorly examined concept.

And at [2] the majority judgment refers to the “bleak picture” painted by accounts of the experiences of complainants in trials of a sexual nature and the tendency of victims not to report such crimes. Parliament has made procedural reforms to address this, but, the majority say, “More needs to be done.” It is unusual for judges to comment on legislative policy in this way, and it may give some readers the impression that now the Court is going to do what it can to help with the task, instead of addressing the constitutionality of the legislation in an unbiased way.

Another attention-catching point is the habit in Canadian jurisprudence of treating the requirement that a trial must be fair as meaning that it must be fair to all concerned: the defendant, the prosecution, witnesses, and the community (at [2], [125]). And why not throw in anyone else you can think of. This is, in non-Canadian terms, nonsense. A criminal trial must be fair to the defendant. It is the defendant who has the right to a fair trial. This is an absolute right. However, there may be procedural constituents of that right (for example, the right to confront witnesses for the prosecution) that can be subject to some limitation without compromise to the absolute nature of the defendant’s right to a fair trial. A witness may be screened from the defendant, or may give evidence remotely by video link, or may - within very circumscribed limits - give evidence anonymously, without affecting the defendant’s ability to cross-examine the witness.

While I agree with the majority judgment, I must admit that I find parts of it incredible. The suggestion that a witness (here, complainant) will not be tainted by disclosure of a tactic that will be used as a challenge to credibility at trial (at [186]-[187}), is optimistic. And the conclusory opinion, at [186], that “ambush” is not an effective weapon is contrary to common sense and experience. By including these points the majority is over-stating its case.

Even so, apart from these quirks, the majority judgment is persuasive. It has the excellent quality of addressing the concerns expressed by the dissenting judges. It is persuasive because the sort of evidence that the legislation deals with is (a) only rarely going to be available to the defendant, and (b) it would, in any event, be subject to the basic rules of evidence concerning relevance and the need for it not to have an improperly prejudicial effect on the proceeding. And it should come as no surprise to a complainant that the defendant has the relevant record, and that the defendant might seek to use it at trial, so pre-trial announcement of that intention is unlikely to damage the defence.

Pre-trial disclosure of the defence position may take some of the drama out of the trial. In Auckland a few years ago (actually, a good few years ago) in a rape trial the defendant had - most wisely as it turned out - made a secret video recording of the events which all occurred in his bedroom. The complainant wasn’t aware of this and at trial gave a convincing account of having been raped, but when confronted with the recording in cross-examination, her claim of lack of consent was shown, when the recording was played, to be plainly absurd.

Quite possibly, such a video recording would be outside the definition of record in this legislation (see [55]), and therefore would remain admissible subject to the basic requirements of relevance and absence of improper prejudice, but the point is that the law should be hesitant to restrict cross-examination of complainants on matters such as whether there was an actus reus and whether there were reasonable grounds for absence of mens rea.

Prosecutor's fallacy and conditional probability reasoning: R v Lyttle [2022] NZCA 52

The prosecutor’s fallacy is an error in reasoning that can be very difficult to notice. It came to attention recently in what is now our leading case on costs in criminal cases: R v Lyttle [2022] NZCA 52.

The Court dealt with appeals from three separate trials, and the one relevant here is R v S, the discussion of which begins at [105].

The issue was whether injuries had been caused by assault or by accident.

There was no evidence indicating guilt other than expert medical opinion evidence. The Crown called five experts, the defence two.

Inevitably, the experts’ evidence was all based on studies of similar injuries where the causes were known [165].

Usually, experts give their evidence in the form of a likelihood ratio: for example, the injuries are much more likely to have been caused by assault than by accident. The cases for the prosecution and the defence in the trial are compared in that way.

Although it is not obvious here, it seems that the experts, as summarised from [116], were in effect saying (for the Crown): the injuries here were very much more likely to have been caused by assault than by accident.

In calling attention to the prosecutor’s fallacy, the Court was in effect saying that the probability of seeing the injuries if they were caused by assault is not the same as the probability of assault, given the injuries.

That indeed is so, as is obvious if we consider a simple example of the same error: the probability of seeing that an animal has four legs, given that it is a sheep, is not the same as the probability of  seeing that an animal is a sheep, given that it has four legs.

There are two separate things under examination in these cases: injuries by assault and injuries by accident; sheep and quadrupeds.

The seriousness of this error depends on context. If you are talking about all the sheep and all the quadrupeds in the world, it is a very serious error. But if you mean just those sheep and those chickens in that field, the error will not matter.  If the context tends to exclude innocent explanations it is like the field, but with greater recognition of innocent explanations it becomes more like the world. In a trial the context of the case provides what can be called the prior probabilities of guilt and innocence.

In R v S the context was that of a situation where accidental fall was possible, and where the defendant was of good character, well spoken of as a caring person, and a person of whom months of covert audio surveillance after the event revealed nothing to raise any suspicion.

If we pretend that the combined likelihood ratios of the experts' evidence strongly favoured guilt, say only one chance in a hundred of innocence, that would in mathematical terms be 99 to 1. But without any other evidence of guilt, and to the contrary, every indication of innocence, the prior likelihood of guilt may be 1 in 99.

Combined, the priors and the likelihood ratio on these hypothetical figures would be 1. This is the ratio of the probability, on all the evidence in the case, of guilt to the probability on the same evidence of innocence. This means a one in two probability of guilt, or 0.5, which is not enough to meet the criminal standard of proof. Nor even the civil standard, which requires more than 0.5.

At [166] the Court summarised the approach that the prosecutor had suggested at trial. This seems to have involved the sheep/quadruped fallacy: a low probability of getting the evidence of the injuries if the defendant was innocent does not in context mean a low probability of innocence given the evidence of injuries.

All the evidence in combination had to be considered when assessing the likelihood of guilt.

One lesson of the appeal in R v S is that lawyers need to be trained in reasoning with conditional probabilities. The major hurdle is that people who become lawyers have mostly been taught at an impressionable age that they are no good at maths. People who become lawyers do, however, tend to be good at logical reasoning, so let’s not despair.

Another lesson is that rare events happen, and apparently overwhelming statistical evidence is only about probabilities, not about the actuality in a particular case. This seems to be the point that was made by the witness whose comment is noted at [127]. Indeed, in law facts are only ever established to some degree of probability, expressed in words as on the balance of probabilities or beyond reasonable doubt.

The jury in R v S were unable to agree on a verdict, and the Crown elected not to seek a retrial, as noted at [112], so the charge (manslaughter) was dismissed, which is equivalent to an acquittal.

If you are interested in this sort of thing, there is more on this site: just enter "Bayes" in the search box.

Overruling "final" decisions: Chandler v The State (Trinidad and Tobago) No 2) [2022] UKPC 19

You can’t read Chandler v The State (Trinidad and Tobago) (No 2) [2022] UKPC 19 without thinking of the anticipated overruling by the Supreme Court of the United States of Roe v Wade.

When will a court of final appeal overrule its own earlier decision, particularly on a point of constitutional interpretation?

The Board addressed the jurisprudence on this at [55]-[66]. The main points are:

Strong reasons for departure from the earlier decision are needed [56].

Stare decisis requires the greatest of hesitation before re-opening the issue; the earlier decision must be shown to have been wrong and lacking a sufficient foundation [57].

As the SCOTUS has said, a special reason for departure is needed, beyond a mere belief that the earlier decision was wrong [58].

It is necessary to avoid damage to the rule of law [58].

Something more than simply thinking the earlier decision was wrong is needed: for example it may have hampered the proper development of the law or distorted the law by being in conflict with established legal principles or by having to be distinguished in subsequent cases to such an extent that the law is uncertain [59].

There needs to have been a material change in circumstances since the earlier decision [60].

Where the court interpreted legislation, it will be more appropriate for the legislature to make the change, in contrast to common law which is more appropriately left to judges to change (citing Posner) [61].

The fact that the earlier decision was that of a mere majority does not weaken it, because the law has to have some way of resolving differences between judges [63].

Stare decisis promotes certainty, predictability, planning and the giving of legal advice [64].

As Lon L Fuller said, a system of legal rules has eight “desiderata”, relevantly here - retroactive laws should be avoided, legal rules should be clear, there should be a constancy of law through time, there should be correct administration of law [66].

 I add this: Another thing lawyers can’t help thinking about in this context is the difference between the internal and the external morality of law. If conformity with the requirements of the rule of law is a matter of the internal morality of the law, does such conformity tend to serve the requirements of external morality too? The (sadly, late) Professor of Jurisprudence at Oxford, John Gardner, considered this in his Law as a Leap of Faith (2012, OUP) Chapter 8, where at 220 he concludes, “Fuller is no legalist but he is surely, on this front, a bit of a quietist. He encourages lawyers to think that they are already doing their bit, qua lawyers, to save us from the abyss so long as they are upholding the rule of law. But there is always more, and sometimes more important, work to do.”

Judicial responses to rights-infringing legislation: Brown v R, 2022 SCC 18

In Brown v R, 2022 SCC 18 (May 13, 2022) the Supreme Court of Canada declared  unconstitutional, and of no force or effect, s 33.1 of the Criminal Code.

The effect of s 33.1 was to remove a defence of automatism to crimes of general intent.

This provision was contrary to the principles of fundamental justice in that it allowed criminal liability for acts that were not voluntary. This infringed s 7 of the Canadian Charter of Rights and Freedoms. It also breached the presumption of innocence by replacing the prosecution’s obligation to prove mens rea with mere proof of intoxication. This infringed s 11(d) of the Charter.

On the critical question of whether the limits on rights imposed by s 33.1 were justified in a free and democratic society under s 1 of the Charter, the Court held that, while there was a rational connection between s 33.1 and Parliament’s purpose, the impairment of rights was not minimal because alternative means of achieving the purpose could be devised. The benefits of s 33.1 were outweighed by its negative effects: the risk of wrongful conviction, the failure to distinguish between grades of moral culpability, and the disproportionate punishment that would have to be imposed.

In a companion judgment delivered the same day, two Crown appeals were dismissed because of the invalidity of s 33.1: R v Sullivan, 2022 SCC 19. This judgment addresses stare decisis issues, particularly horizontal stare decisis: when a court is bound to follow a decision of a court at the same level in the hierarchy in the same Province.

The power to declare statutory provisions unconstitutional is in s 52(1) of the Constitution Act, 1982, which states: “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”

In New Zealand we don’t have a provision corresponding to s 52(1). Our courts have no power to declare a parliamentary enactment to be of no force or effect. We do have an equivalent of s 1 of the Charter. This is s 5 of the New Zealand Bill of Rights Act 1990 (NZBORA).

However, our Supreme Court has held that there is a power to make a declaration of inconsistency with NZBORA: Attorney-General v Taylor [2018] NZSC 104 per Glazebrook and Ellen France JJ at [65], Elias CJ at [74], (William Young and O’Regan JJ dissenting at [122]).

What should be the consequences of such a declaration? These are still to be worked out.

Possibilities are the taking into account of a declaration as a mitigating factor when determining an appropriate sentence, or when deciding whether to discharge an offender without conviction. Where a provision unjustifiably limits the right to be presumed innocent and the right to a fair trial, dismissal of a charge at trial or quashing a conviction on appeal should be appropriate. As we say these days, the consequences of a declaration of inconsistency will probably be contextual and evaluative judgement will be necessary.

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].