Equality of arms in a defended case may require special measures concerning the mode in which the accused may give his evidence. Such measures are provided for by statute in relation to child complainants in sex cases (Evidence Act 1908, ss 23C – 23H), but there are no corresponding provisions for child defendants.
In R v Camberwell Green Youth Court [2005] UKHL 4 (27 January 2005) Baroness Hale, delivering the leading speech, pointed out that the court may exercise its inherent jurisdiction to provide appropriate facilities where fairness so requires:
"[57] … the question is what, if anything, the court needs to do to ensure that the defendant is not at a substantial disadvantage compared with the prosecution and any other defendants (see Delcourt v Belgium (1970) 1 EHRR 355, para 28). That can only be judged on a case by case basis at trial and on appeal. ...
"[59] … the Court of Appeal also made it clear in R v S.H. [2003] EWCA Crim 1208, 28 March 2003 that the court has wide and flexible inherent powers to ensure that the accused receives a fair trial, and this includes a fair opportunity of giving the best evidence he can. In that case the defendant had learning and communication difficulties. The court could allow him the equivalent of an interpreter to assist with communication, a detailed written statement could be read to the jury so that they knew what he wanted to say, and he might even be asked leading questions based upon that document, all in an attempt to enable him to give a proper and coherent account.
"[60] The Strasbourg Court has also held, in V v United Kingdom (1999) 30 EHRR 121, 179, para 86 that
"it is essential that a child charged with an offence is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings".
"[61] The environment and procedures in the Youth Court are already designed with this in mind, although no doubt there will be a need to do more in some cases. The procedures in the Crown Court have also been modified to meet the needs of child defendants following the case of V v United Kingdom, and again more may need to be done in some cases."
A question exists about the correctness of R (S) v Waltham Forest Youth Court [2004] EWHC 715 (Admin), 31 March 2004, in which it was held that there was no inherent power to permit defence evidence by video link as Parliament had treated the subject exhaustively in its (earlier) legislation and had omitted provision for that. But as Lady Hale pointed out, para 62, whether that interpretation of the extent of the inherent power is correct remains to be determined on a suitable appeal.
The New Zealand legislation does not contain a provision that expressly leaves the inherent power of the court unaffected, but it seems unlikely that R (S) v Waltham Forest Youth Court would be followed.
Monday, January 31, 2005
Fairness and the issues
In some situations, tribunals may be given powers to make orders affecting the rights of parties without the need for an oral hearing. In applications for revocation of parole, under the applicable United Kingdom legislation, but not in many other jurisdictions, including New Zealand (Parole Act 2002, s 65(4)(a)), the Parole Board need not hear orally from the respondent or his counsel. Fairness issues may consequently arise, and they did in R v Parole Board, ex parte Smith and West [2005] UKHL 1 (27 January 2005).
Several points were made in this case:
Several points were made in this case:
- Whether absence of an oral hearing affects the fairness of the proceedings depends on the circumstances of each case (Lord Bingham, para 27).
- The requirement that the proceedings be fair is fundamental, and arises from the common law rather than being dependent upon the existence of the ECHR or any other Bill of Rights document (Lord Bingham, para 44; Lord Hope para 74).
- An oral hearing may be of use in more circumstances than merely those where some issue of fact has to be decided. Examples are where explanations or mitigating factors may be relevant, or new relevant facts may be brought to light (Lord Bingham, para 35).
- A risk of unfairness arises if only written submissions are permitted and consequently the respondent is not aware of what the tribunal considers important (Lord Bingham, para 35).
- A danger posed by procedures that are routinely disposed of on the papers is that assumptions will be made that are prejudicial to the respondent and in favour of the case advanced by the authorities (Lord Hope, para 66).
One significant point that will have implications for appellate procedures is the need to alert the appellant to issues that the court may consider to be important. Appellants who are unable to obtain legal representation often file written submissions for the consideration of the appellate court, and these are sometimes focused on entirely irrelevant matters. In such cases, the question arises whether the court should seek further submissions on what appears to it to be significant (to the extent that the court is able to identify what that may be; this may be impossible, especially in the absence of a transcript of the trial judge’s directions to the jury).
Similarly, where a court is hearing oral argument on a question of law, should it inform the parties of points that concern it? Occasionally, one encounters coyness from judges who are shy about showing their hand, and sometimes decisions are made on points that have not been fully addressed in argument. One might even wonder whether it is fair for courts to conclude hearings, and reserve decisions, without their being clear as to what the ultimate decision will be.
Sunday, January 23, 2005
Precedent and particularity in rights balancing
There is a conflict in New Zealand law between two approaches to balancing of interests when a court decides the admissibility of wrongfully obtained evidence. The governing case, R v Shaheed [2002] 2 NZLR 377, (2002) 19 CRNZ 165 (CA), can be read as permitting a close analysis of the particular circumstances of a given case in carrying out the required balancing exercise. Alternatively, it can be read as permitting the influence of precedent to guide the analysis of the competing interests, so that the decision in each case can be less agonised than it would be if the subject were approached as if de novo. This latter approach is, it is suggested, the preferable one. However, a casual reading of a recent Court of Appeal decision might suggest support for the former alternative: R v F 16/12/04, CA351/04.
R v F includes reference to a House of Lords decision, re S (a child) [2004] 3 WLR 1129 (HL) which was mentioned in this blog on Monday November 1, 2004. The Court of Appeal in R v F at para 23 treated this as support, by analogy, for holding that competing public interests can’t be dealt with at a general level, and that close investigation of the facts and evaluation of factors is required. That approach is, no doubt, appropriate where, as in re S (a child), there was a conflict between the right (of the child, not a party to the criminal proceedings) to privacy, and the right of the news media to exercise freedom of speech. But is this approach appropriate to the Shaheed balancing exercise?
Three fundamental points support the precedent approach:
Some aspects of the reasoning in R v F are, with respect, unsatisfactory. These will be considered further below, but first, it should be noted that these were all obiter, as the Court accepted the Crown’s indication that it did not seek to oppose the appeal being allowed. This indication came in response to a potentially controversial step taken by the Court before the hearing: The grounds for the stopping and search of the appellant’s car seemed rather sparse, and indeed the lower court, the High Court, had ruled that the search was illegal and unreasonable, but nevertheless under the Shaheed balancing of interests, the evidence should be admissible. The Court of Appeal, by Memorandum to the Crown, invited the Crown to advance further information as to the grounds for the search, indicating that if disclosure of these to the defence would compromise the Crown’s position (such as, for example, by betraying a promise of confidentiality to an informer), then arrangements might be made to accommodate that concern.
It should be noted that the search in question was carried out without warrant. If there had been an application for a warrant (not at all practical in this case) then any secrecy concerns could have been met, so the extension of this similar offer to the Crown here was not as bizarre as it might otherwise have seemed. Nevertheless, the warrantless search powers are designed for occasions where the necessary grounds for their exercise arise ex improviso, and should be capable of being stated clearly when the challenge arises. Should there be a need to protect the identity of an informer, the relevant police witness would raise that in the course of his evidence and the Court would take the necessary steps to determine an issue of public interest immunity. Therefore the opportunity held out by the Court of Appeal to the Crown came at an inappropriately late stage in the proceedings, and accordingly the appropriateness of the Court of Appeal’s Memorandum procedure in R v F can be doubted.
Having said that, it may nevertheless be conceded that now the court of final appeal, the Supreme Court (which has replaced the Privy Council in this role), is within the reach of ordinary litigants, the Court of Appeal may well take a more activist role in raising issues that could prompt changes in the law.
So, what are the unsatisfactory aspects of the reasoning of the Court in R v F as far as the Shaheed balancing exercise is concerned? The Court referred, para 27, to public attitudes, saying that public opinion would be against exclusion of the evidence. That, with respect, is not a true reflection of the relevant point. Public attitudes that are ill-informed are immaterial. The Court referred separately, para 28, to the nature of the criminal conduct. This is not really separate from the first point, the public interest. The Court did, however, correctly refer to the likely sentence in this case as being the indicator of the weight to be given to the public interest in the bringing of suspects to trial.
Also unsatisfactory is the Court’s reference to the accused’s privacy interests, para 24 – 26. Certainly, privacy in a car is less than in a home, and the Court acknowledged that the accused’s interests, expressed in BORA s 21, 22, and s 18 MDA 1975, were "in general terms significant". The reference in para 26 to the serious social harm that can arise from the offending, coming as it does immediately after these references to the accused’s privacy interests, appears to be a suggestion that the privacy interests are diminished by the seriousness of the offending. That, of course, would be wrong. The privacy interests are those that everyone enjoys. They have weight reflecting the value that the ordinary person attaches to not being subject to arbitrary official search. This weight may well be outweighed by competing interests, but that would be because those competing interests are stronger, not because the privacy interests are diminished.
In para 25 there is reference to the powers to stop the vehicle that could have been relied upon in this case. The suggestion seems to be that because the police could have lawfully stopped the vehicle, that diminishes the wrongfulness of their stopping the vehicle improperly. That would be a misapplication of authority, which is to the effect that the police are expected to obey the law, so that failure to take available lawful steps counts against admissibility of the wrongfully obtained evidence: R v H 9/11/04, CA61/04 at para 46.
R v F includes reference to a House of Lords decision, re S (a child) [2004] 3 WLR 1129 (HL) which was mentioned in this blog on Monday November 1, 2004. The Court of Appeal in R v F at para 23 treated this as support, by analogy, for holding that competing public interests can’t be dealt with at a general level, and that close investigation of the facts and evaluation of factors is required. That approach is, no doubt, appropriate where, as in re S (a child), there was a conflict between the right (of the child, not a party to the criminal proceedings) to privacy, and the right of the news media to exercise freedom of speech. But is this approach appropriate to the Shaheed balancing exercise?
Three fundamental points support the precedent approach:
- The police are entitled to guidance from the courts as to the likely consequences, as far as the admissibility of evidence is concerned, of any of the forms of misconduct that may occur in the purported exercise of search powers.
- The accused is also entitled to know what are the prospects of success for a contemplated challenge to the admissibility of evidence. Both the prosecution and the defence are only informed by the law if decisions have precedent value.
- Precedents should help to isolate the material facts. Precedents should also guide the reasoning process. It would be wrong to interpret R v F as a call for a new beginning in each case.
Some aspects of the reasoning in R v F are, with respect, unsatisfactory. These will be considered further below, but first, it should be noted that these were all obiter, as the Court accepted the Crown’s indication that it did not seek to oppose the appeal being allowed. This indication came in response to a potentially controversial step taken by the Court before the hearing: The grounds for the stopping and search of the appellant’s car seemed rather sparse, and indeed the lower court, the High Court, had ruled that the search was illegal and unreasonable, but nevertheless under the Shaheed balancing of interests, the evidence should be admissible. The Court of Appeal, by Memorandum to the Crown, invited the Crown to advance further information as to the grounds for the search, indicating that if disclosure of these to the defence would compromise the Crown’s position (such as, for example, by betraying a promise of confidentiality to an informer), then arrangements might be made to accommodate that concern.
It should be noted that the search in question was carried out without warrant. If there had been an application for a warrant (not at all practical in this case) then any secrecy concerns could have been met, so the extension of this similar offer to the Crown here was not as bizarre as it might otherwise have seemed. Nevertheless, the warrantless search powers are designed for occasions where the necessary grounds for their exercise arise ex improviso, and should be capable of being stated clearly when the challenge arises. Should there be a need to protect the identity of an informer, the relevant police witness would raise that in the course of his evidence and the Court would take the necessary steps to determine an issue of public interest immunity. Therefore the opportunity held out by the Court of Appeal to the Crown came at an inappropriately late stage in the proceedings, and accordingly the appropriateness of the Court of Appeal’s Memorandum procedure in R v F can be doubted.
Having said that, it may nevertheless be conceded that now the court of final appeal, the Supreme Court (which has replaced the Privy Council in this role), is within the reach of ordinary litigants, the Court of Appeal may well take a more activist role in raising issues that could prompt changes in the law.
So, what are the unsatisfactory aspects of the reasoning of the Court in R v F as far as the Shaheed balancing exercise is concerned? The Court referred, para 27, to public attitudes, saying that public opinion would be against exclusion of the evidence. That, with respect, is not a true reflection of the relevant point. Public attitudes that are ill-informed are immaterial. The Court referred separately, para 28, to the nature of the criminal conduct. This is not really separate from the first point, the public interest. The Court did, however, correctly refer to the likely sentence in this case as being the indicator of the weight to be given to the public interest in the bringing of suspects to trial.
Also unsatisfactory is the Court’s reference to the accused’s privacy interests, para 24 – 26. Certainly, privacy in a car is less than in a home, and the Court acknowledged that the accused’s interests, expressed in BORA s 21, 22, and s 18 MDA 1975, were "in general terms significant". The reference in para 26 to the serious social harm that can arise from the offending, coming as it does immediately after these references to the accused’s privacy interests, appears to be a suggestion that the privacy interests are diminished by the seriousness of the offending. That, of course, would be wrong. The privacy interests are those that everyone enjoys. They have weight reflecting the value that the ordinary person attaches to not being subject to arbitrary official search. This weight may well be outweighed by competing interests, but that would be because those competing interests are stronger, not because the privacy interests are diminished.
In para 25 there is reference to the powers to stop the vehicle that could have been relied upon in this case. The suggestion seems to be that because the police could have lawfully stopped the vehicle, that diminishes the wrongfulness of their stopping the vehicle improperly. That would be a misapplication of authority, which is to the effect that the police are expected to obey the law, so that failure to take available lawful steps counts against admissibility of the wrongfully obtained evidence: R v H 9/11/04, CA61/04 at para 46.
Friday, December 17, 2004
Restraining executive power
Judicial activism is irksome to legislators. In A and others v Secretary of State for the Home Department [2004] UKHL 56 (16 December 2004) seven Law Lords and Baroness Hale upheld the right of detainees to challenge the validity of subordinate legislation. Lord Walker dissented.
Lord Bingham, who delivered the leading speech, quoted, at para 41, Simon Brown LJ in International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728, at para 54:
" … Constitutional dangers exist no less in too little judicial activism as in too much. There are limits to the legitimacy of executive or legislative decision-making, just as there are to decision-making by the courts."
Accordingly, an order, made by the Home Secretary, derogating from the right not to be detained except pending deportation (Article 5(1)(f) of the ECHR), was held to be subject to review on proportionality grounds. Derogation is permitted, under the ECHR, if it is within the terms of Art 15.1: "In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law."
In para 44 Lord Bingham reached his conclusion on proportionality:
"…The European Court does not approach questions of proportionality as questions of pure fact …. Nor should domestic courts do so. The greater intensity of review now required in determining questions of proportionality, and the duty of the courts to protect Convention rights, would in my view be emasculated if a judgment at first instance on such a question were conclusively to preclude any further review. So would excessive deference, in a field involving indefinite detention without charge or trial, to ministerial decision. In my opinion, SIAC [the Special Immigration Appeals Commission] erred in law and the Court of Appeal erred in failing to correct its error."
Part of the reasons for the finding of lack of proportionality was that the order was discriminatory. The derogation order was accordingly quashed, and section 23 of the Anti-terrorism, Crime and Security Act 2001[UK] was declared to be incompatible with articles 5 and 14 of the European Convention.
Lord Hoffmann agreed in the result, but for the different reason that he was not satisfied that there was a sufficient emergency to permit the making of the derogation order. He made the point, at para 88, that he was not relying on law peculiar to the European context, and that the common law rights pre-existed the ECHR:
"88. … I would not like anyone to think that we are concerned with some special doctrine of European law. Freedom from arbitrary arrest and detention is a quintessentially British liberty, enjoyed by the inhabitants of this country when most of the population of Europe could be thrown into prison at the whim of their rulers. It was incorporated into the European Convention in order to entrench the same liberty in countries which had recently been under Nazi occupation. The United Kingdom subscribed to the Convention because it set out the rights which British subjects enjoyed under the common law.
"89. The exceptional power to derogate from those rights also reflected British constitutional history. There have been times of great national emergency in which habeas corpus has been suspended and powers to detain on suspicion conferred on the government. It happened during the Napoleonic Wars and during both World Wars in the twentieth century. These powers were conferred with great misgiving and, in the sober light of retrospect after the emergency had passed, were often found to have been cruelly and unnecessarily exercised. But the necessity of draconian powers in moments of national crisis is recognised in our constitutional history. Article 15 of the Convention, when it speaks of "war or other public emergency threatening the life of the nation", accurately states the conditions in which such legislation has previously been thought necessary.
"90. Until the Human Rights Act 1998, the question of whether the threat to the nation was sufficient to justify suspension of habeas corpus or the introduction of powers of detention could not have been the subject of judicial decision. There could be no basis for questioning an Act of Parliament by court proceedings. Under the 1998 Act, the courts still cannot say that an Act of Parliament is invalid. But they can declare that it is incompatible with the human rights of persons in this country. Parliament may then choose whether to maintain the law or not. The declaration of the court enables Parliament to choose with full knowledge that the law does not accord with our constitutional traditions."
Readers who are able to take a broad view will note the similarities of this case to Siloata v R, considered in the previous entry on this blogsite. The same essay of Montaigne, cited there, contains another appropriate observation:
"I hardly agree ... with the opinion of that man [Justinian, by his Code and his Pandects] who tried to curb the authority of his judges by a multitude of laws, thus cutting their meat up for them. He did not understand that there is as much liberty and latitude in the interpretation as in the making of them. ...
"... We have in France more laws than the rest of the world put together [Montaigne was writing in the 1580s]. ... 'As we once suffered from crimes, so now we are suffering from laws' [Tacitus, Annals, III, XXV]."
Lord Bingham, who delivered the leading speech, quoted, at para 41, Simon Brown LJ in International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728, at para 54:
" … Constitutional dangers exist no less in too little judicial activism as in too much. There are limits to the legitimacy of executive or legislative decision-making, just as there are to decision-making by the courts."
Accordingly, an order, made by the Home Secretary, derogating from the right not to be detained except pending deportation (Article 5(1)(f) of the ECHR), was held to be subject to review on proportionality grounds. Derogation is permitted, under the ECHR, if it is within the terms of Art 15.1: "In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law."
In para 44 Lord Bingham reached his conclusion on proportionality:
"…The European Court does not approach questions of proportionality as questions of pure fact …. Nor should domestic courts do so. The greater intensity of review now required in determining questions of proportionality, and the duty of the courts to protect Convention rights, would in my view be emasculated if a judgment at first instance on such a question were conclusively to preclude any further review. So would excessive deference, in a field involving indefinite detention without charge or trial, to ministerial decision. In my opinion, SIAC [the Special Immigration Appeals Commission] erred in law and the Court of Appeal erred in failing to correct its error."
Part of the reasons for the finding of lack of proportionality was that the order was discriminatory. The derogation order was accordingly quashed, and section 23 of the Anti-terrorism, Crime and Security Act 2001[UK] was declared to be incompatible with articles 5 and 14 of the European Convention.
Lord Hoffmann agreed in the result, but for the different reason that he was not satisfied that there was a sufficient emergency to permit the making of the derogation order. He made the point, at para 88, that he was not relying on law peculiar to the European context, and that the common law rights pre-existed the ECHR:
"88. … I would not like anyone to think that we are concerned with some special doctrine of European law. Freedom from arbitrary arrest and detention is a quintessentially British liberty, enjoyed by the inhabitants of this country when most of the population of Europe could be thrown into prison at the whim of their rulers. It was incorporated into the European Convention in order to entrench the same liberty in countries which had recently been under Nazi occupation. The United Kingdom subscribed to the Convention because it set out the rights which British subjects enjoyed under the common law.
"89. The exceptional power to derogate from those rights also reflected British constitutional history. There have been times of great national emergency in which habeas corpus has been suspended and powers to detain on suspicion conferred on the government. It happened during the Napoleonic Wars and during both World Wars in the twentieth century. These powers were conferred with great misgiving and, in the sober light of retrospect after the emergency had passed, were often found to have been cruelly and unnecessarily exercised. But the necessity of draconian powers in moments of national crisis is recognised in our constitutional history. Article 15 of the Convention, when it speaks of "war or other public emergency threatening the life of the nation", accurately states the conditions in which such legislation has previously been thought necessary.
"90. Until the Human Rights Act 1998, the question of whether the threat to the nation was sufficient to justify suspension of habeas corpus or the introduction of powers of detention could not have been the subject of judicial decision. There could be no basis for questioning an Act of Parliament by court proceedings. Under the 1998 Act, the courts still cannot say that an Act of Parliament is invalid. But they can declare that it is incompatible with the human rights of persons in this country. Parliament may then choose whether to maintain the law or not. The declaration of the court enables Parliament to choose with full knowledge that the law does not accord with our constitutional traditions."
Readers who are able to take a broad view will note the similarities of this case to Siloata v R, considered in the previous entry on this blogsite. The same essay of Montaigne, cited there, contains another appropriate observation:
"I hardly agree ... with the opinion of that man [Justinian, by his Code and his Pandects] who tried to curb the authority of his judges by a multitude of laws, thus cutting their meat up for them. He did not understand that there is as much liberty and latitude in the interpretation as in the making of them. ...
"... We have in France more laws than the rest of the world put together [Montaigne was writing in the 1580s]. ... 'As we once suffered from crimes, so now we are suffering from laws' [Tacitus, Annals, III, XXV]."
The Supreme Court and the fundamentals
As predicted in these blogs on 25 August 2004, the Supreme Court of New Zealand has upheld, in Siloata v R 16/12/04, SC CRI 8/2004, the primacy of the requirement of jury unanimity in the face of a statutory presumption of guilt in the absence of proof by the defence to the contrary. The Court of Appeal (in a judgment delivered by the President) had held that where this presumption applies, if the jury cannot agree on their verdict the accused must be convicted because he has failed to rebut the presumption of guilt. That is, according to the Court of Appeal, there was no room for a "hung jury" once the presumption of guilt applied. This view of the law has been corrected by the Supreme Court. It held that where the jury is not unanimous as to whether the accused has rebutted the presumption of guilt, there is no verdict.
In doing the count, if there are any "don’t knows", these go on the side of the guilties, because getting to the line (the standard of proof on the defence) is not crossing it. Thus, 11 jurors in favour of acquittal, and one don’t know, amounts to a hung jury. This is preferable to the Court of Appeal’s approach, whereby 11 innocents and one don’t know would mean a guilty verdict.
I should point out that this decision does not depend for its validity on the requirement that verdicts must be verdicts of all 12 jurors. If that requirement were to be changed, so that a majority of, say, 10 would be sufficient for a verdict, then the Siloata interpretation is that in such a case there must be unanimity among 10 jurors: 10 thinking the accused has satisfied the burden of proof means a "not guilty" verdict; 10 thinking he has not met the burden (or some or all of the 10 being unable to decide whether he has or not, ie being on the line) means "guilty", and less than 10 being sure that he has, or has not, met the burden means a hung jury.
While the law was corrected in Siloata, the result of the case was dismissal of the appeal, because the way the judge had directed the jury at trial must have left them with the correct impression, namely that they must be unanimous in order to have arrived at a verdict. The error in the case had been introduced at the Court of Appeal level, not at trial. Although in this case it might be thought that the defence had won the battle but lost the war, because the conviction was upheld, on a broader perspective, this is a case of the defence losing the battle (this case) but winning the war (getting the law corrected). It must be acknowledged that the Crown did not oppose the correction, simply contending that there had been no error at trial.
It is impossible to devise a legal system, involving a hierarchy of courts, where there will not be the possibility of introduction of errors at each level. Inevitably, with time, there will be the occasional instance of error in the decisions of the Supreme Court, just as there has been in the House of Lords and the Privy Council. It is important that the Supreme Court should regard itself as free to depart from its own precedents when they are shown to have been wrong.
The point considered by the Supreme Court in Siloata was very narrow. There are dangers in looking too narrowly at the law. Montaigne, in "On Experience" (Essays, Book 3 Chapter 13) reminds us of Seneca's observation (Letters LXXXIX): "Anything that is divided into minute grains becomes confused." One might respectfully wonder whether it was appropriate to restrict the issues in this case so as to exclude the important matters of (1) whether the standard of proof on the defence to rebut the presumption of purpose should remain at balance of probabilities, when human rights law favours the lower standard of raising a reasonable doubt, and (2) whether the jurors have to be unanimous on the issue of possession of a minimum quantity of drug before any of them can use the presumption of purpose in their reasoning towards a verdict, when usually the requirement for unanimity permits individual jurors to determine facts for themselves as they work towards a decision. This second point is explored in more detail below.
An aspect of the law concerning use of the presumption was not considered in Siloata because the accused had conceded possession of the quantity of drug necessary to raise the presumption of purpose of supply. This aspect is, does the presumption only arise if the jury unanimously find possession of the necessary quantity of drug, or can the presumption be used as a fact finding tool by any individual juror who is satisfied beyond reasonable doubt that the accused had possession of that quantity? It seems to have always been assumed that the jurors will all be in agreement about quantity before the presumption arises. Indeed, the requirement for unanimity, on whether the accused has satisfied the standard of proof to rebut the presumption, reflects this assumption. A perhaps unintended consequence is that, if one juror is not satisfied beyond reasonable doubt that the accused had possession of the necessary quantity of drug to raise the presumption of purpose, then none of the jurors can use the presumption in deciding the issue of purpose of supply. A preferable approach would, it is respectfully suggested, have been to regard the presumption as a fact finding tool available to those jurors who were satisfied on the issue of quantity; the jury has to be unanimous in its verdict but may reach that verdict by different routes.
I suggest that the presumption has developed an unfortunate mystique which has caused it to be misunderstood. The presumption is simply a fact-finding tool. It should be available for use by any juror who is satisfied that the criteria for invoking it are met. It is a separate matter from the requirement for jury unanimity in the verdict, and it is separate from the issue of standard of proof. Nevertheless, these considerations will all come together in the case. The effect of the presumption is to make it harder for the accused to avoid the conclusion, in the mind of any juror for whom the presumption is available in fact finding, that the drug was possessed for supply.
In doing the count, if there are any "don’t knows", these go on the side of the guilties, because getting to the line (the standard of proof on the defence) is not crossing it. Thus, 11 jurors in favour of acquittal, and one don’t know, amounts to a hung jury. This is preferable to the Court of Appeal’s approach, whereby 11 innocents and one don’t know would mean a guilty verdict.
I should point out that this decision does not depend for its validity on the requirement that verdicts must be verdicts of all 12 jurors. If that requirement were to be changed, so that a majority of, say, 10 would be sufficient for a verdict, then the Siloata interpretation is that in such a case there must be unanimity among 10 jurors: 10 thinking the accused has satisfied the burden of proof means a "not guilty" verdict; 10 thinking he has not met the burden (or some or all of the 10 being unable to decide whether he has or not, ie being on the line) means "guilty", and less than 10 being sure that he has, or has not, met the burden means a hung jury.
While the law was corrected in Siloata, the result of the case was dismissal of the appeal, because the way the judge had directed the jury at trial must have left them with the correct impression, namely that they must be unanimous in order to have arrived at a verdict. The error in the case had been introduced at the Court of Appeal level, not at trial. Although in this case it might be thought that the defence had won the battle but lost the war, because the conviction was upheld, on a broader perspective, this is a case of the defence losing the battle (this case) but winning the war (getting the law corrected). It must be acknowledged that the Crown did not oppose the correction, simply contending that there had been no error at trial.
It is impossible to devise a legal system, involving a hierarchy of courts, where there will not be the possibility of introduction of errors at each level. Inevitably, with time, there will be the occasional instance of error in the decisions of the Supreme Court, just as there has been in the House of Lords and the Privy Council. It is important that the Supreme Court should regard itself as free to depart from its own precedents when they are shown to have been wrong.
The point considered by the Supreme Court in Siloata was very narrow. There are dangers in looking too narrowly at the law. Montaigne, in "On Experience" (Essays, Book 3 Chapter 13) reminds us of Seneca's observation (Letters LXXXIX): "Anything that is divided into minute grains becomes confused." One might respectfully wonder whether it was appropriate to restrict the issues in this case so as to exclude the important matters of (1) whether the standard of proof on the defence to rebut the presumption of purpose should remain at balance of probabilities, when human rights law favours the lower standard of raising a reasonable doubt, and (2) whether the jurors have to be unanimous on the issue of possession of a minimum quantity of drug before any of them can use the presumption of purpose in their reasoning towards a verdict, when usually the requirement for unanimity permits individual jurors to determine facts for themselves as they work towards a decision. This second point is explored in more detail below.
An aspect of the law concerning use of the presumption was not considered in Siloata because the accused had conceded possession of the quantity of drug necessary to raise the presumption of purpose of supply. This aspect is, does the presumption only arise if the jury unanimously find possession of the necessary quantity of drug, or can the presumption be used as a fact finding tool by any individual juror who is satisfied beyond reasonable doubt that the accused had possession of that quantity? It seems to have always been assumed that the jurors will all be in agreement about quantity before the presumption arises. Indeed, the requirement for unanimity, on whether the accused has satisfied the standard of proof to rebut the presumption, reflects this assumption. A perhaps unintended consequence is that, if one juror is not satisfied beyond reasonable doubt that the accused had possession of the necessary quantity of drug to raise the presumption of purpose, then none of the jurors can use the presumption in deciding the issue of purpose of supply. A preferable approach would, it is respectfully suggested, have been to regard the presumption as a fact finding tool available to those jurors who were satisfied on the issue of quantity; the jury has to be unanimous in its verdict but may reach that verdict by different routes.
I suggest that the presumption has developed an unfortunate mystique which has caused it to be misunderstood. The presumption is simply a fact-finding tool. It should be available for use by any juror who is satisfied that the criteria for invoking it are met. It is a separate matter from the requirement for jury unanimity in the verdict, and it is separate from the issue of standard of proof. Nevertheless, these considerations will all come together in the case. The effect of the presumption is to make it harder for the accused to avoid the conclusion, in the mind of any juror for whom the presumption is available in fact finding, that the drug was possessed for supply.
Tuesday, November 30, 2004
The Joy of Jurisprudence
Yes, jurisprudence can be useful. Consider the problem mentioned in these blogs on Wednesday November 17, 2004 of whether a person who intends to return a drug to its owner has possession of it for supply: R v Adams 20/10/04, Miller J, HC Wellington CRI 2004-091-341.
Is returning a drug to its owner the offence of “supply” of that drug? How do we decide whether conduct should be an offence when the statutory definition is ambiguous?
We might consult the website of the Oxford Professor of Jurisprudence. Indeed, we did.
Consequently, some ideas emerge from our mental fog, although these may or may not be what Professor Gardner intended.
How do we feel about a person who returns a drug to its owner? Has he done wrong? If we cannot really say that we consider his act wrong, then we should conclude that he has committed no offence.
We may, however, feel that he has done some wrong. How much wrong? Not as much as a person who supplies a drug to a stranger. Why not? Because in returning the drug to its owner, he has not given any new power over the drug to anyone, as the owner had the power to demand it back anyway. So he is not as bad as he could be. There is a “residual” sort of wrong about what he did. There has been a conflict of reasons about why supplying drugs is wrong. On the one hand, supply of a drug to another person increases the amount of access to the drug, and that is harmful. On the other hand, if it is returned to its owner, there is no increase in access; there could even be said to be a decrease in access as the minder of the drug no longer has it. Yet the owner has it, and that is wrong. Looked at this way, the person who returns the drug to its owner has a defence. The offence has occurred but as far as the law is concerned the defence, that the supply was to the owner, prevents criminal responsibility attaching to the supplier.
A third alternative is that we may feel that he has done wrong, and this wrong is not of a merely residual kind. It is a full-blown sort of wrong. In this case returning the drug to its owner is not a defence.
That seems so simple that we may wonder whether we are really doing jurisprudence.
Another sort of analysis is available if we consider the offence of possession of the drug for the purpose of supply. Again, the intention is to return it to its owner. If returning the drug to its owner is a defence to a charge of supplying the drug, possession for the purpose of supply is what might be called a “fault-anticipating wrong”. The wrong is, in expanded terms, possession of the drug for the purpose of supplying it to someone who does not already own it. The fault that is anticipated in this formulation of the charge is the supply to a non-owner. There are two basic wrongs here: possession of the drug, and supply of it to a non-owner. The combination of these basic wrongs creates a “parasitic” or “further” wrong, namely possession of a drug for supply to a non-owner. The feature of the “fault-anticipating wrong” that makes it different from basic wrongs is that the defence, that the intention was to supply the drug to an owner, is actually a negation of the offence itself, instead of being a separate matter that excludes liability.
So what?
Well, the point is to clarify the relationship between wrongdoing and fault. Basic offences, the usual kind, involve wrongdoing but not, if a successful defence is available, fault in its fullest sense. There has, in such cases, been an offence, there has been wrongdoing, but because there is has also been a defence, there has not been enough fault to attract criminal liability. But the other kind of offences, fault-anticipating wrongs, do not, if a successful defence is available, involve wrongdoing. There is, in such cases, no offence, no wrongdoing, and no fault.
Working out these implications of the choices concerning whether returning a drug to its owner is supply, should help decide whether this conduct is wrongdoing.
Is returning a drug to its owner the offence of “supply” of that drug? How do we decide whether conduct should be an offence when the statutory definition is ambiguous?
We might consult the website of the Oxford Professor of Jurisprudence. Indeed, we did.
Consequently, some ideas emerge from our mental fog, although these may or may not be what Professor Gardner intended.
How do we feel about a person who returns a drug to its owner? Has he done wrong? If we cannot really say that we consider his act wrong, then we should conclude that he has committed no offence.
We may, however, feel that he has done some wrong. How much wrong? Not as much as a person who supplies a drug to a stranger. Why not? Because in returning the drug to its owner, he has not given any new power over the drug to anyone, as the owner had the power to demand it back anyway. So he is not as bad as he could be. There is a “residual” sort of wrong about what he did. There has been a conflict of reasons about why supplying drugs is wrong. On the one hand, supply of a drug to another person increases the amount of access to the drug, and that is harmful. On the other hand, if it is returned to its owner, there is no increase in access; there could even be said to be a decrease in access as the minder of the drug no longer has it. Yet the owner has it, and that is wrong. Looked at this way, the person who returns the drug to its owner has a defence. The offence has occurred but as far as the law is concerned the defence, that the supply was to the owner, prevents criminal responsibility attaching to the supplier.
A third alternative is that we may feel that he has done wrong, and this wrong is not of a merely residual kind. It is a full-blown sort of wrong. In this case returning the drug to its owner is not a defence.
That seems so simple that we may wonder whether we are really doing jurisprudence.
Another sort of analysis is available if we consider the offence of possession of the drug for the purpose of supply. Again, the intention is to return it to its owner. If returning the drug to its owner is a defence to a charge of supplying the drug, possession for the purpose of supply is what might be called a “fault-anticipating wrong”. The wrong is, in expanded terms, possession of the drug for the purpose of supplying it to someone who does not already own it. The fault that is anticipated in this formulation of the charge is the supply to a non-owner. There are two basic wrongs here: possession of the drug, and supply of it to a non-owner. The combination of these basic wrongs creates a “parasitic” or “further” wrong, namely possession of a drug for supply to a non-owner. The feature of the “fault-anticipating wrong” that makes it different from basic wrongs is that the defence, that the intention was to supply the drug to an owner, is actually a negation of the offence itself, instead of being a separate matter that excludes liability.
So what?
Well, the point is to clarify the relationship between wrongdoing and fault. Basic offences, the usual kind, involve wrongdoing but not, if a successful defence is available, fault in its fullest sense. There has, in such cases, been an offence, there has been wrongdoing, but because there is has also been a defence, there has not been enough fault to attract criminal liability. But the other kind of offences, fault-anticipating wrongs, do not, if a successful defence is available, involve wrongdoing. There is, in such cases, no offence, no wrongdoing, and no fault.
Working out these implications of the choices concerning whether returning a drug to its owner is supply, should help decide whether this conduct is wrongdoing.
Monday, November 29, 2004
Public policy exclusion of evidence
The relationship between the common law discretion to exclude evidence on fairness grounds, to the discretion to exclude evidence for breach of the Bill of Rights, is a matter about which the Court of Appeal seems rather hesitant. A misleading approach is evident in R v Murphey (2003) 20 CRNZ 278 (CA), where the discretions seem, without full discussion, to be regarded as being distinct from each other.
The true relationship between these discretions, I suggest, is that they are the same: the Bill of Rights discretion, explained in R v Shaheed [2002] 2 NZLR 377 (CA), is a common law discretion, because the Bill of Rights has no provision for what the consequences of breaches should be. Shaheed does not interpret the Bill of Rights. It does, however, develop the interpretative approach to determining what is unreasonable, in the context of searches, as set out in R v Grayson and Taylor [1997] 1 NZLR 399 (CA). Just as reasonableness involves a balancing of certain factors which emerge from the circumstances of a given case, so too does fairness. It is not surprising that factors relevant to reasonableness will be similar to those relevant to fairness.
In R v Pedersen 12/11/04, CA209/04 the New Zealand Court of Appeal had to address the fairness discretion, as the case did not involve a breach of rights. It did not refer to R v Shaheed, but the factors relevant to the decision, and the decision process itself, to the limited extent to which they were explained in the judgment, can be seen to be akin to the Shaheed model. The police had followed the appellant on to private property to require her to undergo a breath test; there was no evidence that the property was that of the appellant, and for the purposes of the case it was assumed that both the appellant and the officer were trespassers.
"[51] … The trespass [by the police] was brief and minor in nature. There has been no challenge to the accuracy, or the integrity of the police evidence. They were acting in good faith in a situation where it could be inferred that the appellant was attempting to avoid the breath testing checkpoint. In the circumstances, no investigatory alternatives were available for the police, and their actions overall must be considered reasonable. We do not consider fairness requires the exclusion of this evidence."
Here, just as pursuant to Shaheed, the first point to consider is the wrongfulness of the police conduct. In the absence of a breach of rights, this could not be given the same weight as it would have if there had been such a breach. The evidence was reliable and so it could not be suggested that its admission would result in trial unfairness. Good faith, although often mentioned, is, as Shaheed stated, just a neutral factor; the Court could be taken as mentioning it to indicate that the wrongful conduct was not aggravated by deliberation. Absence of alternatives is relevant, because if a lawful procedure had been ignored that would weigh in favour of exclusion of the evidence, as the Court recently pointed out in R v Harder 9/11/04, CA61/04 at para 46. There is also a suggestion of urgency in the circumstances of the case, and this always weighs in favour of admission of the evidence.
In summary, it would have been appropriate for the Court to apply Shaheed directly, rather than to treat the fairness discretion as somehow more mysterious and detached. The result, in any event, is correct.
The true relationship between these discretions, I suggest, is that they are the same: the Bill of Rights discretion, explained in R v Shaheed [2002] 2 NZLR 377 (CA), is a common law discretion, because the Bill of Rights has no provision for what the consequences of breaches should be. Shaheed does not interpret the Bill of Rights. It does, however, develop the interpretative approach to determining what is unreasonable, in the context of searches, as set out in R v Grayson and Taylor [1997] 1 NZLR 399 (CA). Just as reasonableness involves a balancing of certain factors which emerge from the circumstances of a given case, so too does fairness. It is not surprising that factors relevant to reasonableness will be similar to those relevant to fairness.
In R v Pedersen 12/11/04, CA209/04 the New Zealand Court of Appeal had to address the fairness discretion, as the case did not involve a breach of rights. It did not refer to R v Shaheed, but the factors relevant to the decision, and the decision process itself, to the limited extent to which they were explained in the judgment, can be seen to be akin to the Shaheed model. The police had followed the appellant on to private property to require her to undergo a breath test; there was no evidence that the property was that of the appellant, and for the purposes of the case it was assumed that both the appellant and the officer were trespassers.
"[51] … The trespass [by the police] was brief and minor in nature. There has been no challenge to the accuracy, or the integrity of the police evidence. They were acting in good faith in a situation where it could be inferred that the appellant was attempting to avoid the breath testing checkpoint. In the circumstances, no investigatory alternatives were available for the police, and their actions overall must be considered reasonable. We do not consider fairness requires the exclusion of this evidence."
Here, just as pursuant to Shaheed, the first point to consider is the wrongfulness of the police conduct. In the absence of a breach of rights, this could not be given the same weight as it would have if there had been such a breach. The evidence was reliable and so it could not be suggested that its admission would result in trial unfairness. Good faith, although often mentioned, is, as Shaheed stated, just a neutral factor; the Court could be taken as mentioning it to indicate that the wrongful conduct was not aggravated by deliberation. Absence of alternatives is relevant, because if a lawful procedure had been ignored that would weigh in favour of exclusion of the evidence, as the Court recently pointed out in R v Harder 9/11/04, CA61/04 at para 46. There is also a suggestion of urgency in the circumstances of the case, and this always weighs in favour of admission of the evidence.
In summary, it would have been appropriate for the Court to apply Shaheed directly, rather than to treat the fairness discretion as somehow more mysterious and detached. The result, in any event, is correct.
Thursday, November 25, 2004
An individual's access to the courts
Can a person who is detained by officials apply to a court for bail even when there is no prosecution or action brought against him? The Supreme Court of New Zealand has today decided the issue: Zaoui v Attorney-General 25/11/04, SC CIV 13/2004, in a case that departs from the law as had been indicated in some English decisions (eg R v Secretary of State for the Home Department, ex parte Turkoglu [1988] 1 QB 398, 400 per Sir John Donaldson MR).
The central point, around which this cause celebre revolves, is whether the High Court can grant bail to a person when there is no current case, before a court, involving that person. That is, is bail a merely ancillary matter, or is the jurisdiction to grant bail an independent matter? The issue has a faint echo of implications of the majority decision of the Supreme Court of the United States of America in Hamdi v Rumsfeld (see my blogs of 21.9.04 and 26.9.04). Hamdi was not cited in Zaoui, of course, as in Hamdi there was no argument about the court's jurisdiction to hear the case. However the discussion in Hamdi of how judicial procedures should be adapted to the requirements of national security may have some relevance for the bail application that will follow the decision in Zaoui. Hamdi suggests that when it comes to the procedural details of the bail hearing, a more pragmatic approach (in the Posnerian sense) will be appropriate.
The Supreme Court, in taking the formalist approach, has not allowed the law to be governed by administrative convenience. The dangers of doing so were, after all, the lesson handed to the New Zealand Court of Appeal by the Privy Council in Taito v R (2002) 19 CRNZ 224. Fears of a flood of bail applications have not influenced the decision.
The SC described the bail decision in this case in these terms (at para 101):
"This is a case where national security issues arise. It is also a case about the liberty of someone who has refugee status in New Zealand and who is entitled to the benefit of the Refugee Convention requirement that only such restrictions upon his liberty as are necessary should be imposed upon him. The applications fall to be considered against the background of concern for liberty recognised by the Bill of Rights Act and the common law. Accordingly the case raises significant matters of public interest which require careful balance."
Of course, to get to that point, the Court had to decide that jurisdiction to grant bail existed. There had to be an inherent jurisdiction to grant bail that had not been excluded by statute.
The conclusion on inherent jurisdiction was:
"[34] The power of the High Court to grant bail to someone detained is an ancient common law jurisdiction exercised by the superior courts of England in civil and criminal cases. The common law jurisdiction became part of New Zealand law in 1840 [citing English Laws Act 1858]. The powers of the English superior courts have devolved in New Zealand on the High Court [citing section 16 Judicature Act 1908, preceded by the Supreme Court Ordinances of 1841 and 1844 and the Supreme Court Acts of 1860 and 1882]. The power inheres in the Court itself as an independent common law jurisdiction, rather than as an incidental power ancillary to other jurisdiction (as are many procedural powers described as "inherent" or "implied") [citing R v Gage 3 Vin Abridg 518, per Holt CJ; In re Nottingham Corporation [1897] 2 QB 502, 509 per Pollock B; R v Spilsbury [1898] 2 QB 615, 620 per Lord Russell CJ; and RJ Sharpe The Law of Habeas Corpus (2 ed 1989) 141-142].
"[35] Some confusion may arise because the term "inherent jurisdiction" is applied both to substantive and procedural powers. The ancillary inherent powers of courts to regulate their own procedure arise equally in relation to their statutory and common law substantive jurisdictions. Courts which do not possess an inherent substantive jurisdiction (as is the case where their substantive powers are entirely statutory) nevertheless have inherent or implied procedural powers necessary to enable them to give effect to their statutory substantive jurisdiction [citing Department of Social Welfare v Stewart [1990] 1 NZLR 697, 701]."
The terminology here is a bit confusing. "Independent" means "not ancillary", that is, not associated with a matter currently before the court. "Substantive" means concerning the substance of a dispute, so is therefore a term applicable to where bail may arise as an ancillary matter. "Procedural" means how the court conducts its affairs, and this term applies to both independent and ancillary cases.
The Court appears to be saying that the inherent common law jurisdiction can be exercised independently of a matter currently before the court, and its exercise can be a matter of procedure, without having to connect to some substantive issue (and independent cases will not, by definition, involve substantive issues).
The jurisdiction is supervisory, and is best not described as "stand alone". That is, it arises once there is a purported exercise of a power.
"[31] Unless excluded by statute, the inherent jurisdiction of the High Court to grant bail may be directly invoked whenever someone is detained under any enactment pending trial, sentence, appeal, determination of legal status, or (in immigration cases) removal or deportation from New Zealand. The jurisdiction can be exercised whether or not the High Court is seized of proceedings challenging the lawfulness of the detention. Thus, before the Bail Act provided in criminal cases for a statutory right of appeal from the District Court, the High Court commonly granted
bail in its original inherent jurisdiction after bail had been declined by a District Court.
"[32] Detention must be by authority of law. The exercise by inferior courts or officials of a statutory authority to detain falls within the supervisory responsibilities of the High Court. It is mistaken to regard the inherent jurisdiction to grant bail as "stand alone" or in vacuo.
"[33] In the present case, the statute permits detention only by judicial warrant. That imports judicial oversight – first in exercise of the statutory power by a District Court and secondly by the High Court through its general supervisory jurisdiction."
As far as the second consideration was concerned, whether the inherent jurisdiction to grant bail had been excluded by statute, the Court held that there was nothing in the fact that a person was a danger to the security of New Zealand that was necessarily incompatible with release on bail (para 66). It did, however, acknowledge that when bail is an issue, in such cases security will be of major importance (para 69).
This case, from a broad perspective, illustrates the point of prime importance, namely the presumption that Parliament intends its legislation to be consistent with obligations that New Zealand has accepted under international law (para 44). Accordingly, there would have to be strong statutory language to defeat the entitlement of a person to challenge their detention.
The central point, around which this cause celebre revolves, is whether the High Court can grant bail to a person when there is no current case, before a court, involving that person. That is, is bail a merely ancillary matter, or is the jurisdiction to grant bail an independent matter? The issue has a faint echo of implications of the majority decision of the Supreme Court of the United States of America in Hamdi v Rumsfeld (see my blogs of 21.9.04 and 26.9.04). Hamdi was not cited in Zaoui, of course, as in Hamdi there was no argument about the court's jurisdiction to hear the case. However the discussion in Hamdi of how judicial procedures should be adapted to the requirements of national security may have some relevance for the bail application that will follow the decision in Zaoui. Hamdi suggests that when it comes to the procedural details of the bail hearing, a more pragmatic approach (in the Posnerian sense) will be appropriate.
The Supreme Court, in taking the formalist approach, has not allowed the law to be governed by administrative convenience. The dangers of doing so were, after all, the lesson handed to the New Zealand Court of Appeal by the Privy Council in Taito v R (2002) 19 CRNZ 224. Fears of a flood of bail applications have not influenced the decision.
The SC described the bail decision in this case in these terms (at para 101):
"This is a case where national security issues arise. It is also a case about the liberty of someone who has refugee status in New Zealand and who is entitled to the benefit of the Refugee Convention requirement that only such restrictions upon his liberty as are necessary should be imposed upon him. The applications fall to be considered against the background of concern for liberty recognised by the Bill of Rights Act and the common law. Accordingly the case raises significant matters of public interest which require careful balance."
Of course, to get to that point, the Court had to decide that jurisdiction to grant bail existed. There had to be an inherent jurisdiction to grant bail that had not been excluded by statute.
The conclusion on inherent jurisdiction was:
"[34] The power of the High Court to grant bail to someone detained is an ancient common law jurisdiction exercised by the superior courts of England in civil and criminal cases. The common law jurisdiction became part of New Zealand law in 1840 [citing English Laws Act 1858]. The powers of the English superior courts have devolved in New Zealand on the High Court [citing section 16 Judicature Act 1908, preceded by the Supreme Court Ordinances of 1841 and 1844 and the Supreme Court Acts of 1860 and 1882]. The power inheres in the Court itself as an independent common law jurisdiction, rather than as an incidental power ancillary to other jurisdiction (as are many procedural powers described as "inherent" or "implied") [citing R v Gage 3 Vin Abridg 518, per Holt CJ; In re Nottingham Corporation [1897] 2 QB 502, 509 per Pollock B; R v Spilsbury [1898] 2 QB 615, 620 per Lord Russell CJ; and RJ Sharpe The Law of Habeas Corpus (2 ed 1989) 141-142].
"[35] Some confusion may arise because the term "inherent jurisdiction" is applied both to substantive and procedural powers. The ancillary inherent powers of courts to regulate their own procedure arise equally in relation to their statutory and common law substantive jurisdictions. Courts which do not possess an inherent substantive jurisdiction (as is the case where their substantive powers are entirely statutory) nevertheless have inherent or implied procedural powers necessary to enable them to give effect to their statutory substantive jurisdiction [citing Department of Social Welfare v Stewart [1990] 1 NZLR 697, 701]."
The terminology here is a bit confusing. "Independent" means "not ancillary", that is, not associated with a matter currently before the court. "Substantive" means concerning the substance of a dispute, so is therefore a term applicable to where bail may arise as an ancillary matter. "Procedural" means how the court conducts its affairs, and this term applies to both independent and ancillary cases.
The Court appears to be saying that the inherent common law jurisdiction can be exercised independently of a matter currently before the court, and its exercise can be a matter of procedure, without having to connect to some substantive issue (and independent cases will not, by definition, involve substantive issues).
The jurisdiction is supervisory, and is best not described as "stand alone". That is, it arises once there is a purported exercise of a power.
"[31] Unless excluded by statute, the inherent jurisdiction of the High Court to grant bail may be directly invoked whenever someone is detained under any enactment pending trial, sentence, appeal, determination of legal status, or (in immigration cases) removal or deportation from New Zealand. The jurisdiction can be exercised whether or not the High Court is seized of proceedings challenging the lawfulness of the detention. Thus, before the Bail Act provided in criminal cases for a statutory right of appeal from the District Court, the High Court commonly granted
bail in its original inherent jurisdiction after bail had been declined by a District Court.
"[32] Detention must be by authority of law. The exercise by inferior courts or officials of a statutory authority to detain falls within the supervisory responsibilities of the High Court. It is mistaken to regard the inherent jurisdiction to grant bail as "stand alone" or in vacuo.
"[33] In the present case, the statute permits detention only by judicial warrant. That imports judicial oversight – first in exercise of the statutory power by a District Court and secondly by the High Court through its general supervisory jurisdiction."
As far as the second consideration was concerned, whether the inherent jurisdiction to grant bail had been excluded by statute, the Court held that there was nothing in the fact that a person was a danger to the security of New Zealand that was necessarily incompatible with release on bail (para 66). It did, however, acknowledge that when bail is an issue, in such cases security will be of major importance (para 69).
This case, from a broad perspective, illustrates the point of prime importance, namely the presumption that Parliament intends its legislation to be consistent with obligations that New Zealand has accepted under international law (para 44). Accordingly, there would have to be strong statutory language to defeat the entitlement of a person to challenge their detention.
Wednesday, November 17, 2004
Is returning a drug to its owner "supply"?
The tricky problem of whether a person who has been given only temporary custody of a drug has a purpose of supply when he returns that drug to its owner, has arisen again in New Zealand: R v Adams 20/10/04, Miller J, HC Wellington CRI 2004-091-341. The conflicting cases are reviewed, and preference is given to the dissenting speech of Lord Goff in R v Maginnis [1987] 1 All ER 907 (HL). Miller J held that the temporary custodian does not supply the drug when returning it to its owner, because no additional rights or powers are thereby conferred than had existed before. The majority in Maginnis had held that it was not necessary that the supplier (the custodian) should give some power, that he himself had enjoyed, to the other person (the owner), and that therefore the custodian who returns the drug to its owner is supplying it. This was because the owner had no legal right to demand return of the illicit drug.
In end the issue will be resolved according to whichever approach to interpretation the court wishes to take (obviously! I mean the question is open). Some comparison may be made with the issue of the liability of a purchaser for conspiracy with the seller to supply himself with a drug: this has been held not to be a culpable conspiracy because the Act refers to supply "to another" in this context: R v Lang 13/10/98, CA222/98.
My answer: In the case of a temporary custodian, the possession of the drug is shared: the owner retains control, but not custody, and the custodian has custody and, depending on the circumstances (for example, if there is clearly a power to protect possession against third persons), a measure of control sufficient to amount to joint possession with the owner. The giving of custody back to the owner is less than a giving of possession, and for that reason the return of the drug would not be an act of supply.
See also my text, Mathias, Misuse of Drugs (Brookers Criminal Library, electronic edition) at paras 147 and 402.
In end the issue will be resolved according to whichever approach to interpretation the court wishes to take (obviously! I mean the question is open). Some comparison may be made with the issue of the liability of a purchaser for conspiracy with the seller to supply himself with a drug: this has been held not to be a culpable conspiracy because the Act refers to supply "to another" in this context: R v Lang 13/10/98, CA222/98.
My answer: In the case of a temporary custodian, the possession of the drug is shared: the owner retains control, but not custody, and the custodian has custody and, depending on the circumstances (for example, if there is clearly a power to protect possession against third persons), a measure of control sufficient to amount to joint possession with the owner. The giving of custody back to the owner is less than a giving of possession, and for that reason the return of the drug would not be an act of supply.
See also my text, Mathias, Misuse of Drugs (Brookers Criminal Library, electronic edition) at paras 147 and 402.
Monday, November 15, 2004
Miscarriage of justice and strength of the prosecution case
Miscarriages of justice may be thought of as having two roles to play in criminal procedure. The first is as a ground of appeal. The second is where a miscarriage of justice is not "substantial", and on this ground the appellate court may dismiss the appeal (called "applying the proviso").
Miscarriages of justice are usually "substantial". They arise from fundamental departures from proper procedure. Once the appellate court is satisfied that there has been a miscarriage of justice that amounts to a fundamental departure from proper procedure, it will not matter that the evidence in support of conviction was overwhelming. The conviction will be quashed. Usually a re-trial will be ordered.
These observations, which are an intentional simplification of the law, are illustrated by the High Court of Australia, in Subramaniam v R [2004] HCA 51 (10 November 2004). The Court cited Wilde v The Queen (1988) 164 CLR 365 at 373 (per Brennan, Dawson and Toohey JJ):
:
"The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice ...
There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted."
Reference was also made to TKWJ v R (2002) CLR 124, 147 [73], where McHugh J said:
"…in most cases of misdirection on facts, the appellant has the onus of establishing a misdirection, that it might have affected the verdict and that, if it had not been made, the jury might have acquitted the appellant. In some undefined categories of cases, however, the irregularity may be so material that of itself it constitutes a miscarriage of justice without the need to consider its effect on the verdict."
Miscarriages of justice are usually "substantial". They arise from fundamental departures from proper procedure. Once the appellate court is satisfied that there has been a miscarriage of justice that amounts to a fundamental departure from proper procedure, it will not matter that the evidence in support of conviction was overwhelming. The conviction will be quashed. Usually a re-trial will be ordered.
These observations, which are an intentional simplification of the law, are illustrated by the High Court of Australia, in Subramaniam v R [2004] HCA 51 (10 November 2004). The Court cited Wilde v The Queen (1988) 164 CLR 365 at 373 (per Brennan, Dawson and Toohey JJ):
:
"The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice ...
There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted."
Reference was also made to TKWJ v R (2002) CLR 124, 147 [73], where McHugh J said:
"…in most cases of misdirection on facts, the appellant has the onus of establishing a misdirection, that it might have affected the verdict and that, if it had not been made, the jury might have acquitted the appellant. In some undefined categories of cases, however, the irregularity may be so material that of itself it constitutes a miscarriage of justice without the need to consider its effect on the verdict."
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