Stays of proceedings in the residual category - analyzing multiple alleged rights breaches: R v Brunelle, 2024 SCC 3

If a defendant would not have exercised a right that was breached, can a stay of proceedings be ordered arising from the breach?

Whether stays of proceedings could be available on the ground that official misconduct undermined the integrity of the justice system where a police operation involved the simultaneous arrest of several people at different locations without giving all of them proper access to legal advice, was considered in R v Brunelle, 2024 SCC 3.

Not all the defendants had been denied timely access to legal advice, and some didn’t want legal advice, but the procedure adopted by the police had become standard practice. If that practice did undermine the integrity of the justice system, could it require a stay of proceedings for some, or all, of the defendants?

O’Bonsawin J, delivering the leading judgment (Rowe J agreed but offered some clarification), noted that the Canadian law on abuse of process is well settled [27]. Here, the concern is with what is called the “residual category” of abuse of process, which is abuse that does not compromise trial fairness but which nevertheless undermines the integrity of the justice system. The novelty of the questions in this case is referred to at [30].

What are the requirements for standing? Standing means having the right to apply for the relief sought. “To have standing, the accused must allege that the abusive conduct tainted the police investigation or operation targeting them or the court proceedings against them.” [39] Of course, an allegation has to be proved, and failure to prove taint here will result in failure to show standing. Taint of the proceedings is sufficient, and personal prejudice is not required [49]. The connection between the misconduct and the taint must be a sufficient causal connection [54], as where it occurred in the course of the investigation or police operation targeting the defendant [56]. The defendant must satisfy the court that continuation of the proceedings against them individually would in itself do further harm to the integrity of the justice system [59].

Once standing is established, the issue of whether there would be an abuse of process in the residual category arising from the continuation of the proceedings can be considered [65].

In this appeal several breaches of the Canadian Charter were alleged to constitute abuse of process when considered together. The main specific breach was alleged to be of s 10(b), the right to retain and instruct counsel without delay and to be informed of that right. And the general right in s 7 to life, liberty and security of the person was also relied on by the defendants. To a lesser extent, the right in s 8 to be secure against unreasonable search or seizure was also relied on. The case law had established a way, or framework, for analyzing each, and the question was, how should these frameworks inter-relate? This is where Rowe J offers clarification: the specific right should be addressed first, and the more general right should only be addressed if no breach of the more specific one was proved [129] (cf [75], where the framework for analyzing the more general right is applied to get an overall perspective on whether abuse of process has been established).

Once an abuse of process has been established, and a stay of proceedings is sought, an important requirement is that there should be no other appropriate remedy for the abuse of process. For example, in some cases exclusion of tainted evidence might be a sufficient remedy. The need for an absence of adequate alternative remedy reflects the stay as a remedy that is only given in the clearest of cases [113]. The three requirements, set out there, are that continuation of the proceedings would prejudice either the defendant’s right to a fair trial or the integrity of the justice system, that there is no alternative remedy capable of redressing the prejudice, and that if these considerations do not answer whether a stay should be granted then the court must balance the interests in favour of granting a stay against the interest that society has in a having a final decision on the merits.

I must say I find it odd that this third consideration treats the preservation of the integrity of the justice system as a matter that can be balanced, or compromised. The question should be, what is required to preserve the integrity of the justice system - denunciation of the official misconduct or a final determination of the question of the defendant’s guilt or innocence?

Anyway, because of errors at first instance the Supreme Court ordered new hearings on the motions for stay of proceedings and for exclusion of evidence [110].

Appellate review of grounds for prosecution: Attorney-General of Trinidad and Tobago v Harridath Maharaj [2024] UKSC 1

The Privy Council’s recent consideration of the tort of malicious prosecution is of some interest to criminal lawyers insofar as it considers the proper appellate approach to the different issues of malice and the sufficiency of grounds for prosecution: Attorney-General of Trinidad and Tobago v Harridath Maharaj [2024] UKPC 1 (25 January 2024).

Whether the prosecutor was motivated by malice is a question of fact, which would only have needed to be considered here if there were insufficient grounds for the bringing of the prosecution or if bringing the prosecution was unreasonable in the circumstances. Sufficiency and reasonableness are matters to be assessed by evaluative assessment. On questions of fact, an appellate court will assess the record of the evidence as best it can, and will endeavour to make up its own mind about what the facts were [64]. This is a process that in New Zealand we call evaluative judgement. [1] But on the sufficiency and reasonableness issue, which was the issue in this appeal, the appellate court will recognise that reasonable minds may differ, and the appeal is analysed by way of review [66]. Here, the grounds for prosecuting were, after analysis, found to be sufficient and the decision to prosecute was reasonable [77], so the question of malice did not need to be considered by the Board (and in any event there was nothing on the record to suggest malice) [79]. The reasonableness aspect of the decision to prosecute is summarised in the recognition that the prosecutor viewed the available evidence with proper caution and took into account evidence in favour of the defendant [77].

This appeal illustrates how different issues are analysed in different ways on appeal. [2] Here, the logical structure put the issue that required review (or what the Board calls “evaluative assessment”) before the issue - which did not need to be considered in this appeal - of fact, namely whether the prosecutor acted maliciously. As far as the tort of malicious prosecution is concerned, if there are proper grounds for a prosecution and the decision to prosecute is reasonable then the plaintiff fails. If there had not been proper grounds to prosecute, or if the decision to prosecute had been unreasonable, the issue would have been whether the prosecutor had acted maliciously.

Often, the logical structure will be the other way around: facts before discretion, as where a factual threshold has to be satisfied before a discretion is exercised.

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[1] I use the spelling judgement because that’s a way to distinguish between the process and the result. The reasonableness of the decision to prosecute is subject to appellate review. This is clear at [66]. Whether the decision to prosecute was supported by reasonable and probable cause is an issue that requires what the Board calls assessment, and this is different from the exercise of determining a fact. I call the former a discretion because it is analysed on appeal by way of review, and the latter an evaluative judgement because on appeal the analysis is of the sort described at [64]. "Review" and "evaluative judgement" are both terms currently applicable to the differing analyses in New Zealand case law. Usually a prosecutor's discretion is confined within narrow limits, but for some offences an alternative to prosecution, such as diversion, may require consideration and the discretion is more obvious.

[2] No one claims that it is always easy to distinguish between appeals against determinations of fact (often classified as general appeals) and appeals against exercises of discretion: Kacem v Bashir [2010] NZSC 112 at [32]. But there is nothing that is in this context discretionary about fact finding: deciding what evidence to accept is a matter of judgement.

A free pdf of the first collection of entries on this site

As we drift gently towards August 2024, which will be the 20th anniversary of the start of this site, and will also be its termination, I am preparing collections of these entries for free download as pdf files. This is because we cannot be sure how long sites such as this one will continue to exist once they are no longer updated.

The first file covers entries from August 2004 to August 2009. It includes a Table of Contents and Index, and also copies of the draft papers linked on this site. It is best viewed in its A4 format.

Eventually, there will be another file for the remainder of the entries, and a separate Index file for all the entries.

Here is the link to the download for the first volume.

[Update: I have revised this plan and instead of separate files everything will be combined into one pdf, replete with lots of links and best viewed on a laptop or larger screen and in a viewer that allows going back after following a link. Available in August 2024.]

Jury directions as exercises in comprehension: Huxley v The Queen [2023] HCA 40

It is a commonplace observation that people who are good at reading might come to different interpretations of the same text.

Also, it is not unusual in a joint trial for different defendants to react differently to the evidence of a witness. The witness might give evidence that incriminates one defendant while exculpating another.

Both these points are illustrated in Huxley v The Queen [2023] HCA 40.

The trial judge had thought that it would be “madness … leading to total confusion” and “gibberish” [17] to require the jury to apply different standards of proof to the evidence of a witness depending on which defendant’s case they are considering.

The judge was so plainly wrong about that, I suggest, that it is surprising that the prosecutor (who would be just as concerned as defence counsel that the trial should be conducted according to law) did not offer a suggestion to avoid the possibility of any error by the judge when directing the jury.

The point was that when considering the evidence which was central to the prosecutor’s case the jury had to be satisfied of its truth beyond reasonable doubt, but when considering the same evidence as part of the case for a co-defendant they had only to ask whether it raised a reasonable doubt as to the guilt of that co-defendant.

The judge got the first requirement right, and this appeal was about the question of law as to whether the second requirement was satisfied upon a consideration of the summing up as a whole.

This comprehension exercise produced different answers, the Court splitting 2-3. The majority, Gordon, Steward and Gleeson JJ, held that the judge had made no error of law and the appeal was dismissed. The minority, Gageler CJ and Jagot J, considered that the error had been made and that there should have been a new trial. The majority placed significance on the absence of any request by defence counsel for a re-direction [92]ff. The point had been raised in chambers before the evidence in the trial had been concluded, and defence counsel may have thought the judge had ruled on the point [29].

It is at that early stage, when the potential difficulty was raised in chambers before the conclusion of all the evidence, that help from the prosecutor could have ensured a clear judicial direction and avoided the need for this appeal.

The use of question trails (setting out questions for the jury to answer among themselves as they work towards verdicts) could have helped avoid confusion here. Was the jury in a position to consider “as a whole” (heading at [68]) a summing up that lasted from the middle of one day to the late afternoon of the next day [18]? If not, is the more leisurely consideration of a transcript of the summing up - here extending to 93 pages - by appellate judges, relevant? Are juries better at comprehension than appellate judges? If five senior judges can't agree on understanding the summing up, should we expect 12 jurors to have agreed on it?

The admissibility consequences of a breach of rights: R v Zacharias, 2023 SCC 30

To what extent are rights a shield for offending?

Does a breach of the right not to be arbitrarily detained have admissibility consequences in relation to subsequent police activity such as search, arrest, further search, and further detention?  Is the propriety of these subsequent events tainted by the initial breach?

In R v Zacharias, 2023 SCC 30 the majority held, 4-1, that the need to consider “all the circumstances” (s 24(2) of the Charter) means that the subsequent events can be (what I call) tainted by the initial breach. However, the majority on this point split 2-2 on the application of this to the circumstances of the case under appeal. The result therefore turned on the decision of Côte J, who, although differing from her 4 colleagues on the taint question, agreed with Rowe and O’Bonsawin JJ on the application of the balancing test to determine admissibility. The appeal was accordingly dismissed, as the evidence had been correctly admitted at trial. Martin and Kasirer JJ dissented in the application of the balancing test and would have allowed the appeal.

The facts are summarised at [4]-[10]. The impropriety of official misconduct is described at [11]-[12], being in essence that the police officer only just failed to have the necessary grounds to detain (breaching s 9 of the Charter) and search (s 8), by way of sniffer dog, Mr Zacharias.

To appreciate the novelty of Zacharias in Canadian Charter jurisprudence, [1] it is useful to study the judgment of Côte J. Put starkly [102], it was the discovery of incriminating evidence that was the basis for all the police conduct after the improper detention, not the detention itself: “an arrest made on the basis of clear and reliable evidence of a crime is not “misconduct” from which the court should be concerned to dissociate itself.” She points out that in none of the Court’s jurisprudence has subsequent official conduct, not itself involving any further breach of rights, been taken into account when weighing the seriousness of the misconduct [78], [87], [97], [100].

Given the majority decision that a breach has relevance to police conduct after the discovery of incriminating evidence, the question becomes one of what is this relevance. While agreeing that the consequences of the breach are relevant to the issue of the impact of the breach on the defendant, Martin and Kasirer JJ gave this more weight in the admissibility determination because of rule of law concerns [109], [138]-[139], [143]-[151] (compare Rowe and O’Bonsawin JJ [70]-[73], with whom Côte J agreed [104]).

In New Zealand the legislation leaves less (or no) room for a moral decision on this issue, and the cases apply an attenuation analysis. [2]

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[1] I have previously referred here to some of the cases cited in Zacharias: Tim on 22 April 2022, Grant on 18 July 2009 and 19 July 2009 and  27 October 2011, and see also 11 November 2020, McColman 25 March 2023, Chehil and MacKenzie both on 3 October 2013, Stairs 13 April 2022, Kang-Brown on 28 April 2008, and A.M. also on 28 April 2008 .

[2] Evidence Act 2006, s 30, in which the references to consequence in subsection (5) and the use of the verb obtained are taken to invoke a causal analysis, although there are occasions where a more contextual analysis is used. Generally, see R v Shaheed [2002] 2 NZLR 377 at [10], [11], [180], [205], R v Pou [2002] 3 NZLR 637, R v Williams [2007] NZCA 52 at [79]-[103], [243], R v Rangihuna [2008] NZCA 230, R v Hsu [2008] NZCA 468, R v Rimine [2010] NZCA 462, Nicol v R [2017] NZCA 140, R v Bailey [2017] NZCA 211, R v Alsford [2017] NZSC 42 , Moore v R [2017] NZCA 577.

When is there no robbery?

There are times when the Court of Appeal allows an appeal against conviction but the prosecutor thinks that a mistake of law was made by that Court. If the prosecutor has no right of appeal from that decision, as is usually the case, it would be unsatisfactory if the Court of Appeal’s supposed error were to become a precedent. To meet that, while preserving the result of the appeal that had favoured the defendant (appellant), the Solicitor-General may seek the leave of the Supreme Court to refer a question of law for the decision of that Court.

This happened, leave was granted, and the question of law was answered in Solicitor-General’s Reference (No 1 of 2023) [2023] NZSC 151. The result was that the Solicitor-General’s argument, that the Court of Appeal had made a mistake, was accepted by the Supreme Court.

At its most general, this decision illustrates how both the law and the facts must be considered when determining whether an acquittal for one offence prevents conviction for another [56].

More specifically, the acquittal at jury trial of one person on a charge of robbery by violence did not prevent conviction of another person in the same incident for robbery committed together with that acquitted person. These are different charges: using violence in the course of robbery, and being together with another person and committing robbery. The legislation is set out at [57] of the judgment.

The circumstances of the first person’s acquittal at jury trial were important. Juries do not give reasons for their verdicts, so in the circumstances here the acquittal could have been because use of violence was not proved [61]. Indeed, the defendant at this trial had given evidence that he did not use violence, and this could have been consistent with what a prosecution eyewitness had said [29]-[30]. If that was the reason for the acquittal, there could still have been a robbery, just not one of the kind alleged.

The second person, whose conviction was quashed by the Court of Appeal (and without ordering a retrial because the sentence had been served), had earlier pleaded guilty to the robbery in the “together with” form. Despite his plea, he appealed the conviction. Appeals against conviction after guilty plea are only allowed if maintaining the conviction could amount to a miscarriage of justice [39], [45]-[46].

The Supreme Court held that the Court of Appeal had been wrong to allow the appeal here. The Court of Appeal had thought that the acquittal of the first defendant meant that there had been no robbery [33]-[34], so the second defendant could not have committed a robbery together with that person. The Supreme Court pointed out that two different kinds of robbery were alleged, and that the acquittal of the first person at trial had no effect on the second person’s conviction arising from the plea of guilty.

This was not a controversial result. Counsel appointed to assist the Court [8], was in agreement with counsel for the Solicitor-General [35]-[36]. As the Court emphasised [1], [63], the result did not affect the quashing of the conviction by the Court of Appeal.

Just about everyone was happy.

Fairness in joint trials - exclusion of evidence improperly prejudicial to a co-defendant: McNamara v The King [2023] HCA 36

In McNamara v The King [2023] HCA 36 the appellant had been tried jointly with one other defendant, and each blamed the other for the offending. Mr McNamara wanted to include in his evidence allegations of previous criminality by his co-defendant, but the judge ruled that the proposed evidence was inadmissible. This ruling was on the footing that the prejudicial effect of the evidence on the co-defendant outweighed its probative value for the defendant’s case.

Such a basis for excluding evidence is commonly found in evidence laws, and it functions to assist the judge in ensuring that the trial is fair. [1]

Mr McNamara submitted through counsel on this appeal that the judge had no such power in a joint trial. This was rejected unanimously by the Court in two judgments.

Gageler CJ, Gleeson and JagotJJ considered in some detail the interesting  [2] history of joint trials [25]ff. Included in this is a period during which it was unclear whether the supposedly unfettered right of a defendant to adduce otherwise admissible evidence was limited by the probative value vs prejudicial effect discretion [49]. The issue was settled by legislation [52]. This came down to the interpretation of the section mentioned at [59] and described in more detail at [1]:

“Section 135(a) of the Evidence Act 1995 (NSW) ("the Evidence Act") empowers a court to refuse to admit evidence, that is relevant and otherwise admissible in "a proceeding", if the probative value of the evidence is substantially outweighed by the danger that it might be unfairly prejudicial to "a party". The question in this appeal is whether "a party" includes a co-accused in a joint criminal trial. The answer is that it does. The Court of Criminal Appeal of the Supreme Court of New South Wales was correct so to hold, and the appeal must be dismissed.”

A joint trial is a proceeding and each defendant is a party, as is the prosecutor [62], and the exclusionary discretion applies [64]-[69], consistently with the operation of other relevant provisions [72]-[75].

Gordon and Steward JJ similarly analysed the legislation, and considered the on-going relevance of common law principles [92]ff, concluding at [109] that, consistently with dicta in other cases, “The existence of the discretion at common law to refuse to admit evidence coheres with the duty of the trial judge to provide an accused with a fair trial.”

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[1] We have a similar provision in s 8 of the Evidence Act 2006 [NZ]. In this, “proceeding” includes joint trials, and “the right of the defendant to offer an effective defence” is taken to mean the right to a fair trial: R v Moffat [2009] NZCA 437, [2010] 1 NZLR 701, (2009) 24 CRNZ 242, Bracken v R [2016] NZCA 79 (leave refused Bracken v R  [2016] NZSC 124), Ambler v R [2018] NZCA 245 at [41].

[2] I say “interesting” because the following points are among those mentioned: during the eighteenth century criminal proceedings changed from being essentially inquisitorial to essentially adversarial [25]; at common law a defendant could not give sworn evidence, the right to do so being introduced in 1891 (NSW) and 1898 (England) [26]; the exclusionary rule for when probative value of evidence was outweighed by its prejudicial effect was only developed in 1914 ([27], and see my note here on 8 October 2019, particularly at footnotes 6 and 7); the requirement to acquit if there was a reasonable doubt about guilt was “discovered” only in 1935 [27]; the indictment is a foundational and constant feature of the criminal trial throughout the centuries [28]; in a criminal trial there is one indictment, which may include more than one defendant, and the jury can only determine issues in that indictment [29]. While it has been common to tell juries that where there is more than one defendant charged in the indictment there are separate trials for each of them, this should really be phrased as there are separate “cases” for the jury to consider (cf [36]).

Juror or jury misconduct and miscarriage of justice: HCF v The Queen [2023] HCA 35

Disobedience to the judge’s instructions by both a juror and the jury were the basis for the appeal in HCF v The Queen [2023] HCA 35.

The instructions were to not use the internet, and to inform the judge if the jury became aware that any of their number had contravened that instruction. A juror had investigated the meaning of the alleged offences and the relevant sentencing levels, and had then told his fellow jurors what he had found out. The jury had not informed the judge of this.

These irregularities were only discovered well after the verdicts had been returned and the defendant (appellant) had been convicted of some of the charges.

Had these irregularities constituted a miscarriage of justice? If they had, what should the result of the appeal be?

The Court divided 3 -2.

The minority justices, Edelman and Steward JJ, decided that there had been a miscarriage of justice and that the issue of whether this had been “substantial” in terms of the proviso (allowing the appeal to be dismissed if the miscarriage was not substantial) should be remitted to the lower appeal court as it had not been argued on this appeal.

The majority, Gageler CJ, Gleeson and Jagot JJ, held, after close examination of the circumstances of the trial, that there had been no miscarriage of justice and therefore that the appeal should be dismissed.

The decision criterion for whether jury or juror misconduct amounts to a miscarriage of justice is set out in the majority judgment. Significantly, the majority held that if this sort of error had occurred it would of itself, without further inquiry, require that the appeal against conviction be allowed [7]. The test for identifying this sort of error is described as a “double might” test [6]:

“ … the test should be understood in terms of whether a fair-minded lay observer might reasonably apprehend that the jury (or juror) might not have discharged or might not discharge its function of deciding an accused's guilt according to law (which includes but is not limited to the requirement of impartiality), on the evidence, and in accordance with the directions of the judge. …”

Descriptions of the consequences of this test being met are set out at 11:

“… If the jury or juror misconduct would give rise to such a reasonable apprehension then, for that reason, the misconduct will involve a "failure to observe the requirements of the criminal process in a fundamental respect". In such a case, satisfaction of the reasonable apprehension test means that the "shadow of injustice over the verdict" cannot be dispelled, that the trial is "incurably flawed", that there has been a "serious breach of the presuppositions of the trial", and that "the irregularity [is] so material that of itself it constitutes a miscarriage of justice without the need to consider its effect on the verdict". [footnotes omitted]

The inquiry is not as to what might reasonably have been the effect of the misconduct on the actual jury that convicted the appellant ([12], referring to Weiss v The Queen (2005) 224 CLR 300 at 313-315 [34]-[38]). Rather, the inquiry is (my terminology here) objective. The perspective is that of a fair-minded and informed member of the public [13]. The facts that “inform” this fair-minded person are facts that are determined on the balance of probabilities [14]:

“On the facts to be found on the balance of probabilities, might a fair-minded and informed member of the public reasonably apprehend that the jury or a juror might not have discharged the function of deciding the appellant's guilt according to law, on the evidence, and in accordance with the directions of the judge?”

Mere disobedience by a juror or jury to a judge’s instruction is not in and of itself sufficient to give rise to a miscarriage of justice [48]. On close inspection of the facts here it could not be concluded that the disobedience was wilful [49]-[57], rather it was properly described as misconduct and irregular [59]. Further considerations, including the verdicts, took the issue no further. Speculation would not amount to a reasonable apprehension that the jury might not have discharged its function according to law and in accordance with the directions of the judge [69].

One can see that this fair-minded and reasonable observer is very well informed about the trial, and is not just some casual visitor to the public gallery in the courtroom. Really, I suggest, this person is an appeal judge, but in any event the focus is on the objectively assessed effect of the irregularity on the actual jury in the trial (the ‘this jury’ test [12]). Here, on the majority analysis, the convictions had not been demonstrated to have involved a miscarriage of justice, and therefore there was no occasion to consider the application of the proviso.

By what course of reasoning did the minority conclude that there had been a miscarriage of justice? Following Weiss, the occurrence of “any departure from trial according to law, regardless of the nature or importance of that departure” is a miscarriage of justice ([75], citing Weiss at [52] with emphasis in the original). The only qualification on this should be that the departure must be capable of affecting the result of the trial [78]. Other qualifications have been stated, as reviewed at [76]-[77], but reconciliation of them did not need to be attempted in the present case [79], as here a failure to ensure that the rules of procedure and evidence were strictly followed amounted to a miscarriage of justice [82]. While there is a range of irregular behaviour, from the trivial and inconsequential to the serious kind that will always constitute a substantial miscarriage of justice (such as proof of  apprehended bias), the present case is one of the many where irregular behaviour or misbehaviour will have the capacity to prejudice the jury’s consideration of the defendant’s case and where the Crown therefore has the burden of satisfying the appellate court that there was no substantial miscarriage of justice [84].

Here, on the minority view, there was capacity for the misconduct to affect the jury’s consideration of the defendant’s case [113]-[123]: the acts of disobedience could not be described as merely trivial or of no moment, their effect on the jury’s reasoning could not be known, the Crown had correctly conceded that if the misconduct had been known before the verdicts were returned the judge would almost inevitably have discharged the whole jury (but see the majority judgment at [45]-[46]), the disobedience of the jury was capable of casting a shadow of injustice over the whole verdict, and the discussion of the potential sentences for the alleged offending was a denial of procedural fairness to both the defendant and the Crown. Consequently, in the judgment of the minority, the existence of the miscarriage required consideration of the application of the proviso, and the matter should have been remitted to the Court of Appeal for determination of that issue.

The minority’s need, upon concluding that there had been a miscarriage of justice, to consider the application of the proviso (that is, to decide whether the miscarriage of justice had been substantial) is in contrast to the majority’s view of the consequence if it had found that there had been a material miscarriage of justice. The majority would have regarded the misbehaviour, had it had an objectively perceived effect on the verdicts of guilty, as of itself requiring the convictions to be quashed. The difference emerges from differing treatments of Weiss.