The meaning of "and": Pulsifer v United States USSC 22-340

When a statutory exception is followed by a list of conditions, a court may have to decide whether the list is conjunctive or disjunctive. That is, must all the conditions be satisfied before the exception applies, or need only an individual condition be satisfied for the exception to apply?

This problem split the Supreme Court of the United States 6-3 in Pulsifer v United States USSC 22-340 (15 March 2024).

At issue was an exception to protection against imposition of a statutory minimum sentence. It was an issue that mattered “profoundly”, affecting the lives and liberty of thousands of individuals (per Gorsich J, joined by Sotomayor and Jackson JJ for the minority).

For lawyers, the point of construction at issue has an entertainment value that belies its seriousness. It is worth reading the provision first (set out in the Appendix to the judgment of the Court), to see what you think is its ordinary and natural meaning.

The majority, in a judgment delivered by Kagan J, did not consider that the provision was genuinely ambiguous, notwithstanding that, viewed in the abstract, two readings were grammatically permissible. Therefore the rule of lenity (which would favour the construction that was most favourable to a defendant) had no role here. The interpretation argued for on behalf of Mr Pulsifer, said the majority, created “glaring superfluity”. Considered in its legal context, the text must be construed to avoid superfluity, and further, the exception to protection against liability for a minimum sentence must as a matter of policy reflect the (relative lack of [1]) seriousness of defendants’ criminal records.

In the majority’s opinion, Mr Pulsifer”s argument was that to be included in the exception from protection against imposition of the minimum penalty a defendant would have to meet all three conditions, but this would mean that if conditions 2 and 3 were met, condition 1 would be superfluous.

The minority disagreed with this claim of superfluity as it depended on how prior offenses were counted, and held that the policy justification could not overcome the plain meaning of the text.

Anyway, students of statutory construction should read this case, if only for entertainment (but remembering the minority’s observation that statutes aren’t games or puzzles).

Fifty-nine and a half pages on the meaning of “and”. Who could resist?

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[1] I parenthesize "relative lack of" seriousness, because ironically the majority insist that only one of the disqualifying conditions needs to be met, whereas the minority would have required all the conditions - meaning a very serious record of offending - to be met before a defendant was disqualified from protection against imposition of the minimum sentence.

Dealing with jury misconduct: Campbell v R (No 2) (Jamaica) [2024] UKPC 6

Dealing with the risk that a jury was “poisoned” (so to speak) [1]) by misbehaviour was the topic considered in Campbell v R (No 2) (Jamaica) [2024] UKPC 6.

The difficulty for the trial judge in this case was that at the closing stage of a lengthy and complex (and necessarily expensive) trial a concern was raised that attempts had been made by one juror to bribe others - the number was not clear - to acquit the defendants. Could this risk be avoided by judicial management?

The Board held that the measures taken here had not been sufficient [44]-[45]. The defendants’ fundamental right to a fair trial by an independent and impartial court had been infringed. The judge’s duty was 

“to ensure a fair trial. In order to maintain public confidence in the administration of justice it is necessary to do justice to both prosecution and defence so that the guilty may be convicted and the innocent acquitted.” [47]

So the party that may have been prejudiced (the prosecution) could not waive the misconduct.

The judge should have considered whether there was “a real risk” that jurors may have been consciously or unconsciously prejudiced for or against one or more of the defendants [48]-[53].

Here the verdicts were returned by a jury that was not a fair and impartial tribunal of fact, so there was no room for application of the proviso. [55]

It was for the local courts to decide whether a retrial should be ordered [63]-[64].

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[1] Borrowing at [48]-[51] the language of Bingham LJ in R v Putnam (1991) 93 Cr App R 281, 286-287.

The Australian common law of duress: The King v Anna Rowan (A Pseudonym) [2024] HCA 9

Is it right in principle to require, for the defence of duress, that the threat be accompanied by a demand that a particular offence be committed?

And can the threat be implied from the circumstances, or must it be an express threat?

The Australian common law was considered in The King v Anna Rowan (A Pseudonym) [2024] HCA 9.

In a joint judgment Gageler CJ, Gordon, Jagot and Beech-Jones JJ held that Australian common law of duress does indeed require that the threat included a requirement or demand that the defendant commit the acts that constitute the offence charged [53]. Also, the threat and the demand can be unstated but implied from the circumstances [55], [57]. Here, the Court of Appeal had not made the mistake of moving away from the established common law of duress, which was the Crown’s concern, and, as there had been sufficient evidence at voir dire to raise duress as a live issue, this appeal against the Court of Appeal’s reversal of the judge’s decision was dismissed.

Edelman J concurred in the result but suggested a principled development of the Australian common law. He argued that there is no basis for a distinction between threats made by a human person and threats from other sources [84]. This is so, notwithstanding that duress and necessity are separate, and neither party here sought their unification [86]-[87]. Also, although neither party submitted that a demand directed at the commission of a particular offence was unnecessary, such a demand is not needed [98].

The requirement for a demand that a particular offence (the offence charged) be committed to avoid the threatened acts is contrary to principle [106]. Here, the point being made appears to be that if the defence of duress was only available for the demanded offence, a defendant who found a way to avoid the threatened action by committing a lesser offence would not have the defence of duress for that lesser offence. Indeed, continued Edelman J, there need not be any demand for an offence to be committed, as where the defendant drove dangerously to avoid threats of violence from a dangerous mob [107].

Common sense in assessments of the credibility and reliability of witnesses in judge-alone trials: R v Kruk, 2024 SCC 7

In judge-alone trials, the judge must give reasons for the verdict. This obligation creates difficulties for the judge, especially around adequately explaining reasons for assessments of the credibility and reliability of witnesses. There can be a tendency for judges to refer to their common sense and their experience of the ways of the world. This might lead to a departure from the evidence in the case. How should an appellate court determine whether the judge has reasoned lawfully?

This was the central question in R v Kruk, 2024 SCC 7.

The Court unanimously rejected a rule-based approach called “the rule against ungrounded common-sense assumptions” [1].

There were numerous reasons for that rejection, but of more general interest is the articulation(s) of the correct appellate approach to judicial assumptions not supported (or controverted) by evidence.

Two judgments were delivered, with Rowe J agreeing in the results of these appeals (in two unrelated cases) but setting out the analysis he prefers. How different is this from that of the other judges - Wagner CJ, Coté, Martin, Kasirer Jamal and O’Bonsawin JJ - in their joint judgment?

The joint judgment sets out “the existing and well-established law on assessing a trial judge’s credibility or reliability assessments” at [93]-[99]. As their summary is given “for the utmost clarity” [93], it seems pointless to summarize their summary.

But in asking whether Rowe J’s approach is different, comparison of [93]-[99] with [129]-[132] is necessary. He describes the issue in these terms: “These two appeals ask how appellate courts should review trial judges’ reliance on generalized expectations based on common sense and human experience in the fact-finding process” [128]. Broadly, appellate courts need to be sure that what the judge relied on was indeed a generalized expectation and not an assessment of evidence in the case ([130] - this is what the joint judgment says at [94]), then, if reliance had been placed on a generalized expectation, ask whether that expectation was reasonable ([131] - here the joint judgment at [95] diverts to address unreasonable assumptions and to consider how these should be reviewed on appeal [96]-[97]), and if it was reasonable, ask whether it was used to replace evidence instead of being a benchmark for assessing the evidence ([132] and here the joint judgment follows an identification of error by asking whether it was “palpable” in the sense that it affected the result or went to the very core of the outcome of the case [98]).

One kind of error is an error of law, and the standard for review is simply whether the judge got the law right [96]. Examples of this open-ended category are given at [96]. If the error was not one of law, the standard for review is whether the error was palpable and overriding, and examples are given at [97].

A case that was overruled in Kruk provides a quite amusing (at least, I think so) illustration of how absurd it is to require generalizations that are advanced to support credibility and reliability findings to be grounded in evidence: R v JC, 2018 ONSC 5547. See Kruk per Rowe J at [211]-[213], and the joint judgment at [21]-[23]. Absurd, because “The Crown cannot be expected to elicit evidence on how sexual encounters ordinarily unfold in every sexual assault trial before a trial judge can rely on their common sense or human experience with respect to human sexual behaviour” [211].

New offence or improved old offence? Xerri v The King [2024] HCA 5

It is not unusual for legislation defining an offence to be changed, and a question may arise as to whether the change creates a new offence, or whether the original offence (the predecessor offence) was merely reformulated, refined or improved.

This was the issue in Xerri v The King [2024] HCA 5, as stated by Gageler CJ and Jagot J at [14], and by Gordon, Steward and Gleeson JJ at [41]. If the change did not create a new offence but, inter alia, increased the maximum penalty, an offender would have the benefit of the lesser penalty if the offending occurred before the change (this rule is embodied in the legislation referred to at [7] and [41]).

Whether a change is so radical as to create a new offence can be a difficult question, the answer only seeming simple once it has been decided in a court of final appeal. Here, it seems that after the hearing of the appeal in the High Court the Crown (the ultimate winner) was not confident of victory, and it was given leave to file supplementary submissions [37], [68]. These did not need to be addressed.

In comparing the old with the new versions it is necessary to focus on the substance, rather than the form, of the provisions [15]. Here, Gageler CJ and Jagot J listed six substantial differences between the provisions ([16]-[21]), and Gordon, Steward and Gleeson JJ listed eight ([60]). The Court was unanimous in deciding that a new offence had been created, that the increased maximum penalty applied, and the appeal was dismissed.

The reasons for the change in legislation assisted in explaining why this was a new offence. References to a report by a Royal Commission, and to explanations in the Second Reading debate provided useful context.

Several problems were addressed by the new provisions. For example - and all this was about sexual offending by adults against children - it could be difficult for complainants to say precisely when alleged offending occurred, juries might not agree that all of several allegations were proved, historical sentencing patterns might now seem inappropriately lenient, and defendants should not benefit from their own delaying tactics in progressing cases to trial. Accordingly, the new law requires proof of an unlawful sexual relationship, and a jury need not be unanimous about which alleged incidents occurred when deciding whether there had been such a relationship. The new maximum penalty applies, whether the relationship occurred before, during or after the commencement of the new legislation.

How private is an IP address? R v Bykovets, 2024 SCC 6

How private is an IP address?

Is it like a fingerprint at the scene of a crime? Of itself it says nothing until matched with other information. No one has privacy rights in respect of fingerprints they may leave on things.

Or is an IP address as private as the information to which it is linked?

Whether there is privacy in an IP address is a difficult question. The strong dissent of four justices in R v Bykovets, 2024 SCC 6 demonstrates how vexed this is.

Wagner CJ, with Coté J (who delivered the joint dissenting judgment), Rowe and O’Bonsawin JJ made the fingerprint point at [154]. Their judgment focuses on the circumstances of the present case and recognises that on different facts a person might have a reasonable expectation of privacy [159]. Further, the Court’s jurisdiction is confined to questions of law arising from the facts as they are, not as they might be [161]-[162]. Consistent with this is the circumscribed role that interveners can have [163]. In essence, held the minority, the majority answer a question that was not asked [164]. Of most significance to the difference between the judges is the majority’s inclusion in the subject matter of the privacy question every step leading to the ultimate identification of the suspect notwithstanding that the IP address alone does not go that far [138].

Karakatsanis J delivered the majority judgment of herself and Martin, Kasirer, Jamal and Moreau JJ. For what an IP address does, see [4]. One asks, what were the police really after? An holistic approach must be taken in answering this [34]. The privacy interests are intense [60]-[70]. These outweigh the burden on the police of having to obtain search warrants [86].

Both judgments accepted that the approach is normative (see [120] for what this means). So the question is not determined by whether an individual has a low expectation of privacy (for example because of having a suspicious nature). Instead, the determination is about what expectation of privacy a person should have. The difference is in over what the judges considered was a reasonable expectation of privacy (for the dissenters, in the circumstances of this case [141]-[158], for the majority, generally [44]-[70]).

This was a case about credit card fraud. The minority saw no reasonable expectation of privacy as to IP address in that context. In what context might the minority have held that there was a reasonable expectation of privacy? The significant point here is that here the IP address did not reveal core biographical information [148], while on other facts it might. The important thing about the context seems to be, not the offence being investigated but the extent to which core biographical information is revealed.

The majority's teleological approach to the issue - addressing the purpose of the search - is consistent with the development of the common law in the interests of the community, whereas the minority's narrower perspective is a case law application of legislation to the facts of the instant case. The distinction between common law and case law (not a universally recognised distinction, but useful nevertheless) is illustrated here.

The finality of acquittals in jury trials: McElrath v Georgia 22-721 USSC

Acquittals are final, even if they might be based on flawed reasoning: McElrath v Georgia 22-721 USSC (21 February 2024). [1]

Authorities referred to in this case make the following points. An acquittal by a jury ends a defendant’s jeopardy. A jury’s verdict of acquittal cannot be reviewed and this is the most fundamental aspect of double jeopardy jurisprudence. An acquittal is a ruling that the prosecution’s proof is insufficient to establish criminal liability. A jury’s verdict of not guilty on the grounds of insanity is such a ruling. It does not matter if this verdict is accompanied by an apparently inconsistent verdict on another charge; an acquittal is still an acquittal. Any judicial speculation about the jury’s reasons for a verdict of acquittal would impermissably usurp the jury’s right to have its deliberations free from such scrutiny. This remains so, while it has long been recognized that a jury’s verdict may be the result of compromise, compassion, lenity, or misunderstanding of the law. The inviolability of a jury’s verdict of acquittal is a bright-line rule that exists to preserve the jury’s overriding responsibility to stand between the accused and those who command the criminal sanction.

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[1] There can be statutory exceptions to the finality of acquittals. For example, see the Criminal Code of Canada, s 686(4). Acquittals are not lightly overturned under this provision: R v Sutton, 2000 SCC 50, and see R v Khill, 2021 SCC 37. In New Zealand an appeal on a question of law does not include a question that arose from a jury verdict, Criminal Procedure Act 2011, s 296(4)(a).

Agreement, knowledge and liability: statutory construction in R v Rohan (a pseudonym) [2024] HCA 3

If you agree with someone to commit an offence, how much do you need to know?

You don’t need to know that the proposed course of conduct is unlawful, because ignorance of the law is no excuse.

But you do need to know what conduct is proposed and you also need to have the state of mind required by the definition of the offence.

Not all offences require knowledge or recklessness as to the existence of all the physical facts that have to be proved to establish liability.

For example, an offence of supplying a controlled drug to a person who is under a specified age. Liability need not, depending on the definition of the offence, require proof that the defendant knew of the recipient’s age. There might, again depending on the relevant legislation, be a defence of reasonable belief that the person was over the specified age.

Again, an offence of sexually penetrating a person who is under a specified age need not require proof that the defendant knew of the person’s age. There may, again depending on the legislation, not be a defence of reasonable mistake as to the person’s age.

These two types of offences were considered in the context of the law of the State of Victoria in R v Rohan (a pseudonym) [2024] HCA 3.

Gageler CJ, Gordon and Edelman JJ referred to the starting point for interpreting a statutory provision: the text and its context in the widest sense, including its historical context, and its purpose [25].

Attention centred on s 323(1)(c) of the Crimes Act, (see [13]) and also s 323(3)(b) (see [14]), and it was noted that liability in this case depends on agreement [29]. The state of mind required of the people who agree to commit an offence is the state of mind required for commission of the agreed offence [31].

Here, knowledge of the ages of the people who received the cannabis, and knowledge of the age of the person who was sexually penetrated, did not need to be proved for liability [32]. It was sufficient for the prosecution to prove that the defendants entered into the agreement while intending that the cannabis be received by the specified persons, and that they intended that the specified person should be sexually penetrated [33], [34].

Gleeson and Jagot JJ concurred, referring at [62] to statutory construction assisted by reference to parliamentary material, and to the statutory context [68], [69]. The agreement to commit an offence places the parties to the agreement in the same position regarding the requirements for their liability [73], so it was only necessary that the parties agreed on the specific people in respect of whom the offences were to be committed [74].

Sovereignty and the common law

In a recent opinion piece published by Stuff, Damien Grant has raised questions about parliamentary sovereignty and the common law. This topic can invite consideration of extreme hypotheticals to test the extent to which Parliament could get away with passing evil laws. How much like Germany’s Third Reich, which existed from 1933 to 1945, could our Parliament become before action is taken to stop it? And, action by whom? Could the common law be a restraint on Parliament?

Mr Grant asks, “Does Parliament have the right to order a citizen be tortured?’

Here, “right” probably means the power to enact legislation that will be accepted as law. [1]

Acceptance is everything. Parliament only has the power to make laws because our community accepts that it should. [2] This power has its origins in a recognition in common law that this is the best way we can devise of ordering our society - and that this is a political reality.

The real consequence, if Parliament ordered that a citizen could be tortured, would be civil disorder and potentially civil war. Parliament lacks the power to make such an order because it needs to survive.

When we speak of the “lawful” powers of Parliament, we really mean the politically acceptable powers. There are many everyday limits on Parliament’s powers, because the government, having the (currently, in coalition) majority in Parliament, wants to be re-elected. It occasionally happens that the executive, exercising its party majority or coalition majority, causes Parliament to pass legislation which gives back to the executive, through ministerial orders, the power to amend what Parliament has passed. In England such provisions are called Henry VIII clauses. And another concern is the mooted use of ouster provisions, preventing an aggrieved party from seeking judicial review of an administrative action, so effectively removing the obligation of an official to obey the law. This would be contrary to the rule of law. Not all such executive limitations of Parliament’s sovereignty, or all such grants of administrative immunity, would be approved by a majority of voters.

To think that “law” is anything that Parliament could ever be imagined to enact, is to adhere to what would now be regarded as an absurd notion of sovereignty. True enough, the idea of sovereignty may originally have been thought of as a power to do anything, but society - conscious of its power at the ballot box to sweep aside its representatives - would no longer accept such omnipotence.

Are judges activists, if what they are doing is recognising the changing ideas that society accepts about how disputes should be resolved? There is nothing activist about recognising that the common law changes in response to what is currently perceived as the best way of doing things. [3]

Judges would be activist if, instead of accepting current ideas, they were to impose their own ideas in advance of social change. The real debate is about whether the judges are imposing their own ideas or whether they are responding to ideas the community recognises as the best way forward.

It is correct to say that if the judges overreach, Parliament can step in and pass appropriate legislation. In doing so, Parliament must - as a matter of political reality - not undermine “the respect and moral authority” that is the real source of its power to make laws. Parliamentary overreach is not, in reality, much different from judicial overreach. [4]

I am not persuaded by Mr Grant’s article that the judges have been reckless, or that they have undermined the respect in which they are held or the moral authority of their judgments, or that “we need better judges”.

The close interrelationship between politics and law [5] suggests the following answer to whether Parliament could authorise torture: if such a “law” passed the formal requirements for recognition as law, its status as law could only be completed by its acceptance by the courts and by the community. And whether the courts will recognise that they have the power to rule on the legal status of such a “law” depends on the extent to which they modify the common law’s requirements for the validity of laws to meet the needs of the community.

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[1] Salmond, in “Jurisprudence”, observed that source of the status of acts of Parliament as “law” is historical, not legal: “… It is the law because it is the law, and for no other reason that it is possible for the law to take notice of.” Law is only law because it is made in a way that society accepts: see John Gardner, “Law as a Leap of Faith” (for my review of this book dated 6 July 2013, click here). See also Tom Bingham, “The Rule of Law”, p166: “… it has been convincingly shown [referring to HLA Hart, “The Concept of Law”, Ch 10] that the principle of parliamentary sovereignty has been recognized as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot, by themselves, change it.” Lord Bingham concluded that the constitutional system has become unbalanced as a result of reduction of the legislative power of the Crown and of the House of Lords, and that this is a serious problem. 

[2] The first limitation of royal powers, the Magna Carta of 1215, was acceded to by King John as a politically expedient step. Further politically expedient steps occurred in the seventeenth century when Parliamentary supremacy was established by the enactment and royal acceptance of the Bill of Rights of 1688 (Julian date). The growth of democracy since then has constrained parliament’s powers, as has also, as a matter of political reality, ratification of international human rights conventions.

[3] “The common law” originally referred to what circuit judges appointed by Henry II found to be the best way of ordering affairs, drawn from the various approaches in the counties and which was subsequently consolidated in the Year Books from 1268, beginning under the reign of Edward I. The common law was thus responsive to social needs. Blackstone, writing in the eighteenth century, treated the common law as a static statement of the law from “time immemorial” and repeated the then popular opinion that the Westminster Parliament was supreme and the only source of new law. Opinions like those held by Blackstone about the common law are patently incorrect, as is clearly illustrated if one considers the judicial development of the law of contract. And as far as the supremacy of parliament over the executive and the judicial branches of government is concerned, the so-called Glorious Revolution in the seventeenth century established the supremacy of parliament over the executive, but said nothing of the relationship between parliament and the courts. Even the supremacy of parliament over the executive has, with the invention of party politics, become something of a myth. In “The Common Law” (1881), Oliver Wendell Holmes Jr observed, “The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received.”

[4] Throughout much of New Zealand’s history, the common law did not reflect the interests of the Māori peoples. See Paul Rishworth, “Writing things unwritten: Common Law in New Zealand’s Constitution” https://doi.org/10.1093/icon/mow005 . In Ellis v R [2022] NZSC 114 the Court recognised that it could not change Māori customary practices (tikanga)  but that tikanga will continue to be “recognised in the development of the common law … in cases where it is relevant.” Since the thirteenth century there is nothing novel about the surveying of cultural ideas in search of the best way forward for the law.

[5] Ronald Dworkin came to accept, in “Justice for Hedgehogs” (for my April 25, 2011 review, click here), that law is a branch of politics, and politics in turn develops from ethical standards, so there may be “valid laws” that are too immoral to enforce.