Retrial after invalid conviction is not double jeopardy: Smith v United States 21-1576, 15 June 2023

It has long been recognised at common law that a trial held in the wrong location does not on that ground result in a verdict that can subsequently be the basis for a plea of previous acquittal or previous conviction: Smith v United States 21-1576, June 15, 2023. That common law dealt in the United States with the venue Clause, and this case deals with breach of the vicinage Clause.

If a trial is held without jurisdiction, there is no lawful determination of criminal culpability. Therefore, a subsequent trial, held lawfully, does not raise issues of double jeopardy. The usual rule is that a retrial is the remedy.

This is not to say that there are no difficult issues concerning whether a trial has been a nullity. There are dangers in making generalisations in the absence of factual contexts, as was observed in AJS v The Queen, noted here on 15 June 2007, and see Bounds v The Queen, noted here on 28 July 2006. Decisions of appellate courts grappling with the consequences of errors are often not unanimous (although Smith was a unanimous judgment, but Blueford v Arkansas, noted here on 26 May 2012, was not). The intention of the legislature in making a rule that has been broken should be determinative of the consequences: DPP v Penn (Virgin Islands), noted here on 13 May 2008. In Smith, breaches of the venue and vicinage clauses of the Constitution clearly pointed to nullity (although the Court did not use that word, instead putting the question as whether such breaches were exceptions to the rule that retrial is the appropriate remedy, and holding that, like the venue clause, the vicinage clause was not such an exception).

It may be possible for a defendant to waive a fundamental error at trial by knowingly acquiescing expressly or tacitly in the continuation of the trial: Ruddy v Procurator Fiscal [2006] UKPC D2 (Scotland), noted here 20 February 2006, while failure by a court official to sign an indictment has been held to result in a nullity: R v Clarke, noted here on 7 February 2008.

In Smith the result was plainly right: the appellant was asking the Court to hold that a conviction entered without jurisdiction could nevertheless support a plea of previous conviction.

Now, if you haven’t already done so, look up vicinage.

The interests of justice and time limits for filing conviction appeals: Pierre v R (Bahamas) [2023] UKPC 15

Legislation that leaves judges to decide an issue “in the interests of justice”, without any indication of what that means, can leave us wondering if there is any law involved in the decision process.

An example is a decision whether to extent the period in which a person may file an appeal against conviction, so as to override a statutory limitation (often 20 working days) on that period.

In the absence of statutory guidance, beyond referring to “the interests of justice”, it is for judges to work out in case law what that means. To the extent that such case law actually assists in the decision process, the decision is a matter of law. Otherwise, it is just a policy decision, at risk of being arbitrary and not law at all, even though made by judges.

The Privy Council has recently addressed this decision: Pierre v R (Bahamas) [2023] UKPC 15 (11 May 2023).

The decision whether to grant an extension of the period within which an appeal against conviction may be filed is a balancing exercise [28]. It is characterised by flexibility [29]. The ultimate question, whether extension is in the interests of justice [26], requires consideration of the overall justice of the case, taking into account the important public interest in the finality of legal proceedings, the efficient use of judicial resources, good administration, the interests of other litigants, the interests of victims and their families, and the interests of witnesses [27]. An extension of time should be granted if the appeal may expose an injustice, and each application will turn on its own facts and circumstances as the discretion is unfettered and extremely wide, and the interests of justice may require departure from legislated time limits [30].

All these matters are nebulous and don’t help to clarify what the threshold is for granting an extension of time to file an appeal against conviction. It is trite and unhelpful to say each case turns on its own facts and circumstances. In adding the various considerations to the interests of justice, the Board seems to have redefined what the interests of justice means, but without setting out that new meaning.

The expression “in the interests of justice” usually means in the interests of correctly deciding an issue according to law. The issue here is the conviction and its correctness in law. All that should matter when deciding whether an appeal should be heard is whether there is a reasonable prospect that the appeal will be successful. There are questions subsidiary to that, such as whether the arguments proposed to be advanced have previously been determined correctly, whether a legal point was overlooked or wrongly decided in the earlier proceedings, and whether any new evidence could cast doubt on the conviction.

It might be useful to look at legislation governing when a criminal cases review commission can refer a conviction to an appeal court. If such a reference is made, the appeal court must hear the appeal. Legislation may state that the governing criterion for the commission’s decision is the interests of justice, and specify some matters that must be taken into account.

An illustration is New Zealand’s Criminal Cases Review Commission Act 2019, s 17. The matters listed in s 17(2)(a)-(c) are helpful, but the addition of (d) “any other matter that the Commission considers relevant”, while serving as a sort of safety net to avoid excluding meritorious references arising from circumstances that can’t be predicted, could potentially have the unfortunate effect of allowing the Commission to refuse to refer a case on grounds that extend the meaning of “the interests of justice” to include the dreadful inertia of the justice system (the so-called interest in the finality of judicial proceedings), an apologetic reference to the inconvenience of diverting resources to the issue, and a simpering solicitousness for the supposed interests of victims and prosecution witnesses.

Fairness, efficiency and case mismanagement: R v Haevischer, 2023 SCC 11

I once knew a judge whose smile was upside down. The corners of this person’s mouth almost reached the jaw line. When I first noticed this, I thought the condition must be neurological. Then I noticed it in many judges, so it must have been contagious.

If inverted happiness is a judicial condition, what causes it? What is its relationship to sadness? Sadness should be unknown among judges, as they have chosen to have reasonably secure employment without any of the pressures of running a law practice. They can approach each case without a care in the world. Which side wins or loses should be of no concern whatsoever to the well-balanced judge.

But there are some pressures on judges, although they are pseudo-pressures, invented by people who care about time and motion efficiency. Judges are closely policed by such officials. It would be scandalous now, whereas I can remember when it was unremarkable, for a courtroom full of counsel, clients and their supporters, to wait until as much as an hour for a judge to return from a long wet lunch at the club. 

Judges are supposed, nowadays, to make rapid decisions in the summary jurisdiction. There will be some lawyers still in practise who can remember a judge in Auckland who, after hearing all the witnesses in summary cases, would spend 20 minutes or so sitting in silence at the bench, presumably mulling over the evidence, before delivering oral verdicts that almost invariably resulted in convictions. That judge, like nearly all judges, was a thoroughly decent person, and no one would have thought of complaining about such a leisurely approach to judicial work.

Now, judges are supposed to engage in “case management”. This is an invention of time-and-motion experts who apparently had little appreciation of the importance of judicial disengagement with trial preparation. Accompanying this is an unrealistic expectation that each side of a criminal case will cooperate with the other to achieve efficient disposal of a case, as if it were a civil matter.

We didn’t used to have disclosure requirements (except for notice of alibi), and defence counsel would not expect to be given any information about the conduct of the preceeding investigation. All that could come out in voir dire hearings, which, if they were used at all, occurred during trials. But now there seems to be immense fear of inconveniencing juries by sending them out of courtrooms while voir dire hearings, which can be quite lengthy, are held. Such hearings are now usually held before trials, and are scheduled in separate case management hearings. Case management tends to generate multiple pre-trial hearings, as judges are now expected to care about whether a defendant pleads guilty before trial so that trial schedules are not disrupted by unexpected guilty pleas.

Defendants are given incentives to plead guilty before trials. Aside from jeopardising counsel’s income, pre-trial guilty pleas presuppose adequate disclosure of information about the way evidence was obtained, and encouragment of such pleas is assumed not to place improper pressure on innocent people to plead guilty. That presupposition and that assumption are quite unrealistic.

With lengthy lists of cases awaiting trial, pressures on judges to place pragmatism above careful conduct of trials according to law, can result in case management becoming case mismanagement.

A reminder of the need to lawfully conduct case management of trials is given by the Supreme Court of Canada in R v Haevischer, 2023 SCC 11. I do not suggest that any of the thoughts I have set out above reflect what actually happened in this case, but it does illustrate an incorrect approach to a refusal in case management to set down a defence application for a stay of proceedings prior to trial. A refusal to do that is only lawful if the application is, in Canadian law, “manifestly frivolous”. The Court, in a unanimous judgment, explains in detail what that threshold means. Every judge who works in the criminal jurisdiction should study this judgment.

Statutory delay of parole eligibility: Morgan v Ministry of Justice (Northern Ireland) [2023] UKSC 14

The life of a criminal barrister has several sources of irritation.

One is the difficulty of getting clients to see the marvelous subtlety of the logic of the criminal law.

For example, “If you plead guilty you will get a reduced sentence” is not the same as, “You get a longer sentence for not pleading guilty”. You do get a longer sentence, but only because it is the sentence that fits the crime and any mitigating factors you point to will not include a guilty plea.

Yes, but …

Another irritant is having to explain for the millionth time the difference between a sentence of imprisonment and an eligibility for release. Why, for example, a person sentence to a richly-deserved 10 years’ imprisonment [1] may be released after, say, only one year. [2]

This distinction between the sentence and the release is particularly acute if the law on release is changed after a person is sentenced, so that initial calculations of time to be spent in prison have to be revised upwards. You can imaging how irksome this is for the prisoner, to whom it looks like an increased sentence.

The need to properly interpret such a change was the central issue in Morgan v Ministry of Justice (Northern Ireland) [2023] UKSC 14 (19 April 2023). The answer looks easy now that we can read the judgment, but there were respectable arguments on both sides. Did the change in release eligibility amount to a retroactive penalty, and further, did it make it impossible for proper legal advice to have been given before the change?

A central consideration was a decision of the Grand Chamber of the Eurpoean Court of Human Rights, Del Río Prada v Spain (Application No 42750/09) (2014) 58 EHRR 37. Pursuant to that decision, the imposition of a sentence could be taken to include the administrative rules as to release. It is not always easy, as European decisions illustrate, to distinguish between measures concerning the imposition of a sentence and measures concerned with its execution or enforcement. In Del Río Prada the distinction was recognised and endorsed, and the same distinction had been made in the relevant domestic law (see Morgan at [83] ff) but the Spanish law interpreted in Del Río Prada was distinguishable (at [94]).

And on the foreseeability of the law point, there was authority for the proposition that measures relating to the execution or enforcement of a sentence do not need to be foreseeable (at [100]). As noted at [103], the Court in Del Río Prada had said that foresight of a change in a penalty is to be assessed in the context that “the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition in the Convention States”.

Any barrister who has to explain to a client why an increase in the period that has to be spent in prison is not the same as an increase in the sentence can hand over the judgment in Morgan. And any advice on when release can be expected can always be given with the caveat that the law on release might change.

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[1] Another source of irritation is having to use all those fucking apostrophes when specifying periods of sentences such as imprisonment.

[2] On good behaviour and without a judicially-imposed minimum term, a successful application for release on parole after serving one-third of the sentence can be expected, with any actual period in custody prior to being sentenced taken into account as time served. In the example I have suggested, the prisoner was most fortunate to have been refused bail from the outset and so to have spent a couple of years in pre-sentence custody. In any event, release on parole comes with conditions and there is potential for recall to prison to continue serving the sentence until it expires. This applies to so-called long-term sentences, which are usually defined as being more than two years’ imprisonment. Shorter sentences of imprisonment commonly have no parole date but release is usually when half the term has been served. Consult your local laws.

Decisions on unproven facts: R (on the application of Pearce) v Parole Board [2023] UKSC 13

In a criminal trial, facts in issue need to be proved to the relevant standard. For example, the elements of the offence charged must be proved beyond reasonable doubt. In civil cases, the facts that have to be proved to make out a claim must be proved on the balance of probabilities.

Parole hearings are judicial (but inquisitorial) and civil. Where a prisoner who is subject to an indeterminate sentence, such as imprisonment for life, applies for parole, the governing legislation may provide, for example, that the Parole Board may not direct release on parole unless it is “satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”

In that legislative enviroment, [1] one might ask whether this absence of a need to protect the public is a fact in issue that must be proved on the balance of probabilities before release may be ordered.

This was a point of contention in R (on the application of Pearce) v Parole Board [2023] UKSC 13 (5 April 2023). The proceedings in the Supreme Court did not involve the applicant for parole, as the release issue had been settled, but the appropriateness of guidance given administratively to the Board was under review.

Nevertheless, the judgment is of general interest because of its treatment of information received by the Board which amounted to accusations about the applicant's dangerous conduct, although those accusations were never proved. In what circumstances, if any, could the Board use unproven allegations to reach a conclusion that release on parole should be declined?

If an allegation has not been proved, that may still mean that it was nearly proved and that it raises sufficient concern to justify its being taken into account. But some accusations may never have reached the courtroom, or even been the subject of a formal complaint. Plainly, in those circumstances, the Board would have to be careful to comply with the requirements of fairness to the applicant.

The premiss of the legislation is that, for this category of prisoner, release will not be ordered unless the prisoner satisfies the Board that confinement is no longer necessary for the protection of the public. The prisoner’s absence of dangerousness is in issue in the proceedings, and taking unproven allegations into account on that issue is to do what in a trial would be unacceptable.

But parole proceedings, although they must be conducted in compliance with the rules of natural justice, are not trials, and the Board is not required to confine its deliberations to admissible evidence. The prisoner is not in jeopardy of conviction in a parole application, and indeed the prisoner can only gain an advantage without risking further penalty. So the decision process can be described as evaluation of risk based on an holistic assessment of all the circumstances. [2]

“[A] decision-maker, whether a member of the executive branch of government or a judicial body, when assessing future risk, is not as a matter of law compelled to have regard only to those facts which individually have been established on the balance of probabilities; the decision-maker, from the assessment of the evidence as a whole, can take into account, alongside the facts which have been so established, the possibility that allegations, which have not been so established, may be true” (at [44], and see the summary at [65] and the conclusions at [72]-[87]).

This case applies where a tribunal acts judicially and inquisitorially to assess a risk but without being bound by the rules of evidence. There may be a tendency for more issues in criminal law to be approached in that way, for example as a result of advocacy of the introduction of special courts to try allegations of a sexual nature. Would a move away from jury trials permit the abolition of the law of evidence? Would trial by expert assessors of information be any better than trial by jury? [3]

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[1] Section 28(6)(b) of the Crime (Sentences) Act 1997 [UK].

[2] See [83] and [87(vii)].

[3] The use of unproven allegations as evidence may remain highly controversial, and would not necessarily be endorsed by logicians. Truth is a matter of veracity and reliability, and, as those are not logical matters, a logician would have to treat an allegation as if it were true, and ask what it then would say about the acceptability of the risk. The current potential for replacing judges and judicial tribunals with some sort of AI (which need not be confined to logical processes) is unclear, although the tools used by officials such as probation officers to assess an offender’s dangerousness or likelihood of recidivism could be seen as major steps in that direction.

Admitting improperly obtained evidence in Canada: R v McColman, 2023 SCC 8

In R v McColman, 2023 SCC 8 the Supreme Court of Canada unanimously delivered a clear explanation of the way the admissibility of evidence obtained in breach of Charter rights is to be decided in Canada.

 

The context here was an alcohol-related driving offence, evidence of which was wrongfully obtained when the officials entered on private property where the defendant had parked the vehicle.

 

The lawfulness of the officials’ conduct had been the subject of differing judicial opinions and the law was not settled at the time of these events, but in this case the Court of Appeal and the Supreme Court held that the conduct was unlawful, that is, the entry onto private property was unlawful, and the consequent detention of the defendant arbitrary in terms of the Charter.

 

The admissibility determination involved application of the approach the Court had set out in Grant, 2009 SCC 32. It involves three “lines of inquiry” as they are now called.^[1] In looking at these, one can ask whether there is some degree of over-structuring of the decision process, and whether it is appropriate to apply the decision criterion (the avoidance of bringing the law into disrepute) to each of the three lines of inquiry separately.

 

The first line of inquiry, described at [57], places attention on the official misconduct. A point mentioned at [58] is the relevance of there having been an alternative lawful means of obtaining the evidence. This is further explained at [64], where it is said that the existence of such alternative lawful means is an extenuating circumstance, reducing the wrongfulness of the officials’ misconduct.

 

That, I suggest, is a highly controversial approach. One would have thought that the fact that the officials could have acted lawfully only emphasises the wrongfulness of their not having acted lawfully.^[2]

 

The conclusion on the first line of inquiry, at [65], was that the impropriety “pulls slightly in favour of exclusion.” The metaphor now seems not to be balancing, but something like a tug-of-war. This assessment as “slightly” favouring exclusion takes the strength out of the improprieties described at [63] (not having grounds to enter the property, and not proceeding cautiously^[3] in view of the uncertainty of the law at that time). It may be that premature application of the ultimate decision criterion to the first factor, at [58], has reduced the power of the pull towards exclusion of the second factor.^[4]

 

The second factor is the impact of the improprieties on the defendant’s Charter rights, namely his right to liberty. This line of inquiry favoured exclusion of the evidence, but “moderately” (at [68]). In view of the impact described in that paragraph, the description “moderate” could seem to some readers to be somewhat weak. But in context, the police had only failed to conduct a random stop to apprehend the defendant by a narrow margin, and they arrived at the property about a minute after he had parked there. In this sense, the breach of his Charter rights “only just” occurred.

 

The Court emphasises the separateness of the first two lines of inquiry from each other [59]. Treating them as distinct (in the interests of avoiding “unstructured analysis” [59]) may cause the lesser to reduce the other. When misconduct is described as “slightly” exclusionary, its impact is likely to be thought of as slight too. But really, here the defendant was on private property when officials wrongfully detained him, without grounds and without observing the need to act with caution (one might think they acted precipitately and carelessly), and obtained all the evidence that would be used against him. In rightly pointing to the relevance of the “cumulative” weight (here we are back with the balancing metaphor) of the first two factors at [59], the separateness of the two lines of inquiry must be questioned.

 

Thirdly, the so-called truth seeking function of the trial [69],^[5] making the seriousness of the offence a relevant factor [70]. Seriousness was a factor not thought to be a useful consideration in Grant, (and see my above-mentioned comment here dated 11 November 2020), because it was apt to “cut both ways”, but in the present case the Court relied on it because the offending jeopardised public safety. This indeed is the most important factor in this case, and the conclusion that the evidence was admissible was undoubtedly correct. Here, seriousness seems to have been treated generically (at [72]), whereas it would be more logical to place attention on the actual offence that was detected: the level of alcohol here obtained from two tests was 120 and 110 mg of alcohol per litre of breath, the legal limit being 80 (at [7]). In the range of offences that are detected, this would most likely be just short of high. The Court was indeed right to conclude that the public interest in the evidence being admitted was high.

 

However, I can’t leave this without taking a swing at the application of the ultimate decision criterion to the factors individually, here the third factor [70]. It is not “the need for a justice system that is above reproach” that pulls in favour of admission of the evidence, it is the need to bring to trial those who are charged with alcohol related driving offences. Adding avoidance of reproach to that  is unnecessary, and it risks over-emphasising the seriousness of the offending (which didn’t need that sort of bolstering, as [72] speaks for itself). The factors should all be evaluated in their own contexts: this intrusion into private property should be compared in seriousness to the range of intrusions that are dealt with by the courts, the unlawful detention should be compared to the range of such detentions,^[6] and the seriousness of the offending should be compared to the range of similar offences that the courts encounter. These comparisons yield the descriptions “slightly” and “moderately” for the extent to which there are exclusionary factors, and “serious” for the extent to which admission of the evidence is favoured. Then, to answer the next question, what is the impact of the exclusion factors on the admission factors, the court must exercise its judgement aided by the need to avoid disrepute to the administration of justice from a long-term perspective. The Court here combines these but under different headings at [73]-[74].

 

To put it simply, the factors favouring exclusion here were the officials acting without grounds (although not deliberately) and unlawfully entering private property and detaining the defendant, when they should have acted with caution, and using that unlawful detention to obtain evidence against him. The factor favouring admission of the evidence was the seriousness of the offending which had potential to endanger public safety. The decision was, I suggest, more finely balanced that the Court seems to think, although it does say “on the whole, considering all of the circumstances, the evidence should not be excluded” [74], which could suggest admission by a narrow margin. So it is just the reasoning, not the result, that can be criticised.

Some questions may be asked, using the pull metaphor adopted in this case:

 

1. Are the values underlying exclusion the same as the values underlying admission?

 

2. Do the adjectives “slight”, “moderate”, and “strong” respectively indicate the same magnitude of “pull” for exclusion factors as for admission factors?

 

3. Is the idea of “avoiding bringing the administration of justice into disrepute” the decision criterion?

 

4. Is the assessment of the strengths of “pull” for the individual factors a separate exercise from the application of the decision criterion, or does the decision criterion assist in assessing the strength of the “pull” for each factor?

 

5. Where exclusion and admission factors are both at the lower region of their scales, is exclusion more likely than admission of the evidence?

 

6. For cases where the exclusion and admission factors are getting towards (but not at) the higher end of their scales, is admission more likely than exclusion?

 

7. Where exclusion factors are at or near their highest strength, will exclusion be the result irrespective of the strength of the admission factors?

 

8. For cases where the exclusion factors are in the middle region of their range, is the seriousness of the alleged offence the main determinant of admissibility?

 

9. Is the seriousness of the alleged offence to be assessed generically, for example by ranking maximum penalties, or is it to be assessed specifically, for example by reference to the likely starting point in this case for sentencing purposes?

 

10. The first two “lines of inquiry” – the misconduct by officials and the impact of that on the defendant’s rights – are both exclusion factors, so should they continue to be assessed separately, or should they be taken together?

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^[1] For mention of the various metaphors that have been used, see footnote 1 to my comment here on 11 November 2020. I am not sure what metaphor "lines of inquiry" invokes. Perhaps it is railway lines? In any event, the Court later talks of "pulling" towards exclusion or admission of the evidence, which could be thought of as an appropriate and vivid reference to a tug-of-war.

^[2] See Kadir v The Queen [2020] HCA 1, (2020) 267 CLR 109. A fact-specific approach to the relevance of alternative lawful means of obtaining the evidence is supported by the New Zealand Law Commission in The Second Review of the Evidence Act 2006 (NZLC R142, 2019) at [7.40], observing that this will ordinarily favour exclusion of the evidence (at [7.36]).

^[3] What being cautious means here is unclear. At [63] the suggestion is that the officers had a duty to act cautiously and to question the limits of their authority. Perhaps this means they should have asked for advice from higher in their chain of command.

^[4] If we must use a tug-of-war metaphor, we could say that the strengths of each side determine where the rope’s middle marker ends up, and then the decision criterion is applied: which side of the line is it?

^[5] I am critical of the description “truth-seeking” when applied to criminal trials. It may be apt for non-criminal trials, but a criminal trial is a test of the prosecutor’s case and, with a few exceptions where a burden of proof is placed on the defendant, the court does not have to be satisfied of the defendant’s innocence in order to acquit. See also my note here dated July 7, 2022.

^[6] For a startling example of wrongful detention in the context of an alleged offence of driving under the influence of alcohol, see Yoganathan v R [2017] NZCA 225. The defendant had received serious injuries at the hands of the police and the conviction was set aside on appeal. This can be compared with Kelly v Police [2017] NZHC 1611 where although the police’s refusal to take the defendant to hospital for treatment for a broken ankle bone was disrespectful and inhumane, the repeat alcohol-related driving offending was serious and the evidence of his alcohol level was admissible.

Avoiding unnecessary complexity: Miller v R (Bahamas) [2023] UKPC 10

Explaining the meaning of the verb “to intend” led the legislature of the Bahamas into a complex mess of ideas in s 12 of its Penal Code.

Considering this, the Privy Council, in Miller v R (Bahamas) [2023] UKPC 10, observed at [18] that:

“… intention is an ordinary facet of human conduct and it is not normally a difficult concept to understand. In most cases it ought not to require any explanation. In the absence of an admission, or statement as to intention, this ingredient of an offence will generally be established through the process of drawing an inference from the surrounding, or primary, facts as proved. Such an exercise is part and parcel of the ordinary decision-making process which a jury is required to undertake….”

And in emphasising the importance of simple directions to a jury, the Board held that simplicity would have sufficed in this appeal. Indeed, the circumstances were so compelling that despite a series of judicial misdirections at trial on the meaning of “intend to kill” the proviso could be applied so that the appeal against conviction for attempted murder was dismissed.

In its effect, s 12 (reproduced in the judgment at [13]) did not alter the ordinary meaning of “intend”. This was so, despite its intensive mixing of complex concepts: causing, contributing to causing, belief, unlikely, voluntarily, probably, reasonable caution, great risk, presumed, shown that, probably not.

Anyone who was unsure of the meaning of the verb “to intend” would consult a dictionary, and would find that it means to have as one’s purpose. Enough said.

Section 12 widens this. Here, intention is not just a matter of what the defendant wants to occur. It also includes what the defendant believes will probably occur.

Subsection (3) is so remarkable that I set it out here:

“If a person does an act of such a kind or in such a manner as that, if he used reasonable caution and observation, it would appear to him that the act would probably cause or contribute to cause an event, or that there would be great risk of the act causing or contributing to cause an event, he shall be presumed to have intended to cause that event, until it is shown that he believed that the act would probably not cause or contribute to cause the event. “

In this case, the Board pointed out at [40] that there was no need for the judge to have considered s 12(3) at all. One of the judge’s errors was to interpret s 12(3) as applying a standard of negligence and objectively assessed intention (at [43]).

Most lawyers reading s 12(3) would think it does indeed impose liability for negligence (failure to use reasonable caution and observation in assessing the risk of a consequence), and further, that it reverses the onus of proof by the use of a presumption of intention.

That difficulty was brushed aside. At [40] it was held that the jury must be given “clear guidance”, and that s 12(3) should not be read to a jury. If it is read, it needs “proper explanation”, and “clear exposition” to avoid suggesting to the jury that an inference of intent must necessarily be drawn.

This was not a case where foresight of consequences was properly in issue (the appellant had fired a shotgun at a person from a distance of "fifty to sixty feet" (at [3])), but

“… Even in a case in which foresight of consequence is properly in issue the Board doubts that there will be value in inviting a jury to absorb and apply the provisions of [s 12(3)].” (at [41])

The message seems to be that there may be times when a legislative intent is more clearly expressed by a court than by the legislature itself.