The exercise of judgment is fundamental to the application of the rules of evidence. There are 4 areas in which judgment is critical:
The decision whether to exercise the discretion to exclude evidence on public policy grounds. The focus here is on unreliable confessions, statements obtained by oppression, and other kinds of improperly obtained evidence.
The decision whether to admit evidence that would otherwise be inadmissible, where its probative value outweighs the risk of illegitimate prejudice to the accused. Evidence of bad character is the prime example of evidence of this kind.
Decisions that have to be made concerning the requirements of fairness. The choice is between excluding the evidence and admitting it with a warning to the jury about its dangers. Examples are evidence that is of questionable reliability, delayed complaints of sexual misconduct, evidence of children, identification evidence, and evidence that the accused has told lies.
Decisions that have to be made with a view to avoiding a substantial miscarriage of justice. Usually an appellate court will be in a position to have a better perspective on this than will the trial judge, but nevertheless a trial judge will bear this requirement in mind throughout the trial. The need here is to avoid two kinds of errors: errors through which the accused improperly loses a chance of acquittal that should have been reasonably open, and errors which cause the jury to misapply the law to the facts.
I will consider, in separate blog entries, how each of these areas of judicial judgment are to operate under the Evidence Bill, which was introduced into Parliament this month. Today I begin with …
The Public Policy Decisions
The Bill sets out three rules: the unreliable statement rule (Clause 24), the oppression rule (cl 25) and the improperly obtained evidence rule (cl 26). The first two require the judge to evaluate the evidence on the relevant issue against the standard of either (cl 24(2)) the balance of probabilities, or (cl 25(2)) beyond reasonable doubt. The third, however, involves both judgment against a standard (the balance of probabilities: cl 26(2)(a)) and a balancing exercise to determine whether exclusion is proportionate to the impropriety: cl 26(2)(b).
24 Exclusion of unreliable statements
(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer a statement of a defendant if---
(a) the defendant or a co-defendant against whom the statement is offered raises, on the basis of an evidential foundation, the issue of the reliability of the statement and informs the Judge and the prosecution of the grounds for raising the issue; or
(b) the Judge raises the issue of the reliability of the statement and informs the prosecution of the grounds for raising the issue.
(2) The Judge must exclude the statement unless satisfied on the balance of probabilities---
(a) that the circumstances in which the statement was made were not likely to have adversely affected its reliability; or
(b) that the statement is true.
(3) However, subsection (2) does not have effect to exclude a statement made by a defendant if the statement is offered only as evidence of the physical, mental, or psychological condition of the defendant at the time the statement was made or as evidence of whether the statement was made.
(4) Without limiting the matters that a Judge may take into account for the purpose of applying subsection (2)(a), the Judge must, in each case, take into account any of the following matters that are relevant to the case:
(a) any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not); and
(b) any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not); and
(c) the nature of any questions put to the defendant and the manner and circumstances in which they were put; and
(d) the nature of any threat, promise, or representation made to the defendant or any other person.
25 Exclusion of statements influenced by oppression
(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer a statement of a defendant if---
(a) the defendant or a co-defendant against whom the statement is offered raises, on the basis of an evidential foundation, the issue of whether the statement was influenced by oppression and informs the Judge and the prosecution of the grounds for raising the issue; or
(b) the Judge raises the issue of whether the statement was influenced by oppression and informs the prosecution of the grounds for raising the issue.
(2) The Judge must exclude the statement unless satisfied beyond reasonable doubt that the statement was not influenced by oppression.
(3) For the purpose of applying this section, it is irrelevant whether or not the statement is true.
(4) Without limiting the matters that a Judge may take into account for the purpose of applying subsection (2), the Judge must, in each case, take into account any of the following matters that are relevant to the case:
(a) any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not); and
(b) any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not); and
(c) the nature of any questions put to the defendant and the manner and circumstances in which they were put; and
(d) the nature of any threat, promise, or representation made to the defendant or any other person.
(5) In this section, oppression means---
(a) oppressive, violent, inhuman, or degrading conduct towards, or treatment of, the defendant or another person; or
(b) a threat of conduct or treatment of that kind.
26 Improperly obtained evidence
(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if---
(a) the defendant or a co-defendant against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or
(b) the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.
(2) The Judge must---
(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and
(b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.
(3) For the purposes of subsection (2), the court may, among any other matters, have regard to the following:
(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
(b) the nature of the impropriety, in particular, whether it was
deliberate, reckless, or done in bad faith:
(c) the nature and quality of the improperly obtained evidence, in
particular whether it is central to the case of the prosecution:
(d) the seriousness of the offence with which the defendant is charged:
(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:
(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:
(g) whether the impropriety was necessary to avoid apprehended physical danger to the police or others:
(h) whether there was any urgency in obtaining the improperly obtained evidence.
(4) The Judge must exclude any improperly obtained evidence if, in
accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.
(5) For the purposes of this section, evidence is improperly obtained if it is obtained---
(a) in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or
(b) in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or
(c) unfairly.
Of interest here are the standards of proof specified for each decision. Clause 24 uses the balance of probabilities. The Law Commission has changed its stance: in the Evidence Code (NZLC R 55 vol 2) the corresponding clause, 27(2), used beyond reasonable doubt as the standard for excluding unreliability. Of course here “unreliability” is a shorthand way of referring to the question whether the circumstances in which the statement was obtained were likely to affect its reliability. This is distinct from the question of the actual reliability of the statement itself. There is therefore not the logical objection that otherwise would lie in the way of the criminal standard of proof applying (the objection would have been that if the statement was, beyond reasonable doubt, reliable, the ultimate issue would have been decided by the judge). Bearing in mind the point that the issue is the circumstances in which the evidence was obtained, the focus is on the propriety of the methods used to obtain it. The Bill does not insist on proof to the standard of beyond reasonable doubt that those who obtained the statement acted properly.
The criminal standard of proof is applied to the issue of absence of oppression in cl 25. This properly reflects the common law’s abhorrence of “third degree” interrogations.
The balance of probabilities is applied in cl 26 as a threshold that has to be met before the balancing exercise is undertaken. Unless the defence satisfies the judge on the balance of probabilities that there was impropriety in the obtaining of the evidence, there is no progression to the balancing exercise, and the evidence is not excluded on that ground. Use of the balance of probabilities here is a reflection of the commonly held view that any factual pre-conditions that have to be established before evidence is admissible need only be proved on the balance of probabilities. Early formulations of the now obsolete prima facie exclusion rule, that applied to evidence obtained in breach of the Bill of Rights, used the same standard of proof on the issue of whether there had been a breach. The prima facie exclusion rule was replaced in R v Shaheed [2002] 2 NZLR 377 (CA) by the balancing exercise which is reflected in cl 26(2)(b) and (3) of the Bill. Under Shaheed the balancing exercise was not expressly contingent on the satisfaction of any particular standard of proof applicable to the issue of whether there had been a breach of rights. In contrast, the Privy Council, in Mohammed v The State [1999] 2 AC 111, 123-124, held that where there is an issue of the breach of rights, the prosecution bears the burden of excluding such breach to the standard of beyond reasonable doubt, and that where the prosecution fails to achieve that, the balancing exercise must be undertaken (except where the breach is of the right to a fair trial, in which case the evidence is automatically excluded without balancing).
In these contexts, the standard of proof is an expression of how willing the court will be to look at the issue the defence seeks to raise. Oppression is, under the scheme in the Bill, the most eagerly examined. Unreliability and impropriety do not attract as much interest. The appropriateness of those thresholds for judicial interest is a matter over which people may well differ.
Saturday, May 21, 2005
Thursday, May 05, 2005
Proof and prejudice
To what extent can trial fairness be sacrificed to the need to establish the truth? The answer depends on whether the case is criminal or civil.
In civil cases, if the parties will not reach a settlement, the court must reach a result. This may mean proceeding to decision notwithstanding some unfairness. In such a case, if unfairness cannot be avoided, at least the court will try to minimise it, and to balance it so that while the trial may not be equally fair to each side, it could be (albeit rather cynically) called equally unfair to each side. The dominating concern in civil cases is to establish the truth insofar as that can be done in compliance with the rules of evidence.
Judges do not, naturally enough, spell this out as plainly as I have just done. Recently, Lord Bingham has referred to truth and fairness, in relation to civil trials, in O’Brien v Chief Constable of South Wales Police [2005] UKHL 26 (28 April 2005), at para 6:
"…In deciding whether evidence in a given case should be admitted the judge's overriding purpose will be to promote the ends of justice. But the judge must always bear in mind that justice requires not only that the right answer be given but also that it be achieved by a trial process which is fair to all parties."
This does not tell us whether impossibility of fairness to all parties prevents the right answer being found. Be that as it may, we are concerned here with criminal cases, and in criminal law, as it is applied in the common law jurisdictions, courts endeavour to balance competing interests.
The criminal law has multiple functions, and they include meeting official misconduct by the exclusion of improperly obtained evidence. In extreme cases a stay of proceedings may be ordered on grounds of public policy. Those grounds are not directly connected to the fairness of the trial. Another ground for excluding relevant evidence is that its probative value is exceeded by its illegitimately prejudicial effect. This latter ground is particularly problematic.
Its application may result in evidence that is highly probative being admitted notwithstanding the significant risk it brings of illegitimate prejudice. See, for a statement of the law, Lord Phillips in para 32 of O’Brien. Sections 101 to 106 of the Criminal Justice Act 2003[UK] now govern this discretion in the United Kingdom.
In criminal cases, the accused’s right to a fair trial is absolute, primary, and essential. This means that reasonable risks of illegitimate prejudice must be avoided. The probative value/prejudicial effect balancing decision needs to be "re-understood" in the light of developments in human rights law.
This crucial development in the law of criminal evidence is something I have written on elsewhere, and readers with robust stamina may wish to see: Mathias, "The Duty to Prevent an Abuse of Process by Staying Criminal Proceedings" in Robertson (ed) Essays on Criminal Law: A Tribute to Professor Gerald Orchard (Brookers, 2004), and Mathias, "Probative value, illegitimate prejudice and the accused’s right to a fair trial" (2005) 29 Crim LJ 8.
In civil cases, if the parties will not reach a settlement, the court must reach a result. This may mean proceeding to decision notwithstanding some unfairness. In such a case, if unfairness cannot be avoided, at least the court will try to minimise it, and to balance it so that while the trial may not be equally fair to each side, it could be (albeit rather cynically) called equally unfair to each side. The dominating concern in civil cases is to establish the truth insofar as that can be done in compliance with the rules of evidence.
Judges do not, naturally enough, spell this out as plainly as I have just done. Recently, Lord Bingham has referred to truth and fairness, in relation to civil trials, in O’Brien v Chief Constable of South Wales Police [2005] UKHL 26 (28 April 2005), at para 6:
"…In deciding whether evidence in a given case should be admitted the judge's overriding purpose will be to promote the ends of justice. But the judge must always bear in mind that justice requires not only that the right answer be given but also that it be achieved by a trial process which is fair to all parties."
This does not tell us whether impossibility of fairness to all parties prevents the right answer being found. Be that as it may, we are concerned here with criminal cases, and in criminal law, as it is applied in the common law jurisdictions, courts endeavour to balance competing interests.
The criminal law has multiple functions, and they include meeting official misconduct by the exclusion of improperly obtained evidence. In extreme cases a stay of proceedings may be ordered on grounds of public policy. Those grounds are not directly connected to the fairness of the trial. Another ground for excluding relevant evidence is that its probative value is exceeded by its illegitimately prejudicial effect. This latter ground is particularly problematic.
Its application may result in evidence that is highly probative being admitted notwithstanding the significant risk it brings of illegitimate prejudice. See, for a statement of the law, Lord Phillips in para 32 of O’Brien. Sections 101 to 106 of the Criminal Justice Act 2003[UK] now govern this discretion in the United Kingdom.
In criminal cases, the accused’s right to a fair trial is absolute, primary, and essential. This means that reasonable risks of illegitimate prejudice must be avoided. The probative value/prejudicial effect balancing decision needs to be "re-understood" in the light of developments in human rights law.
This crucial development in the law of criminal evidence is something I have written on elsewhere, and readers with robust stamina may wish to see: Mathias, "The Duty to Prevent an Abuse of Process by Staying Criminal Proceedings" in Robertson (ed) Essays on Criminal Law: A Tribute to Professor Gerald Orchard (Brookers, 2004), and Mathias, "Probative value, illegitimate prejudice and the accused’s right to a fair trial" (2005) 29 Crim LJ 8.
Wednesday, May 04, 2005
Common law rules and the proposed Evidence Code
The Supreme Court of Canada last week gave us a clue as to what approach to the admissibility of hearsay evidence in cases of conspiracy or pre-concert might be taken if the New Zealand Law Commission’s proposed Evidence Code is enacted: R v Mapara [2005] SCC 23 (27 April 2005).
Under the proposed Code, hearsay evidence is admissible in criminal proceedings if the circumstances in which it was obtained provide reasonable assurance that it is reliable: cl 19, and if procedural preliminaries to provide for the hearing of any admissibility challenge have been met.
The Code does not provide detail on the reliability criteria, so the question arises as to what will be the status under the Code of the common law rules that have developed to deal with the admissibility of hearsay statements of alleged co-conspirators, or of alleged participants in a joint enterprise (accomplices).
In Mapara, the Supreme Court of Canada held, 7 to 2, that the common law rules do provide sufficient assurance of reliability for there to be no need for a separate reliability decision (para 27), except in rare cases when the accused can point to evidence raising serious and real concerns as to reliability (para 30).
The relevant rules in Canada are similar to those that currently apply in New Zealand: there are three matters that have to be considered. The Canadian formulation of these, set out in R. v. Carter [1982] 1 S.C.R. 938, requires first, proof beyond reasonable doubt that there was a conspiracy or common design of the kind alleged; second, proof on the balance of probabilities and on non-hearsay evidence that the accused was a member of that conspiracy or common design; third, that the hearsay statement was made in furtherance of the conspiracy or common design.
It must be acknowledged that in New Zealand these rules have yet to achieve such clarity. There is a tendency to merge the first and second issues into a requirement that the accused be shown to have shared in a common purpose: eg R v Humphries [1982] 1 NZLR 353 (CA). Further, there is some wavering as to the standard of proof required for the second matter, some cases indicate that "reasonable evidence" is sufficient, while others require proof on the balance of probabilities. For the "reasonable evidence" requirement, see R v Karpavicius 12/9/00, Anderson J, HC Auckland T001037, para 17. For the balance of probabilities formulation see R v M 2/5/01, William Young J, HC Christchurch T14/01, at [51], although the Judge doubted that this was any more exacting, from the Crown’s point of view, than the unadorned reasonable evidence test, and on appeal the Court of Appeal took the same approach: R v M 11/7/01, CA135/01.
Given that the common law rules are aimed at preventing the admission of unreliable evidence, and that under the proposed Code the criterion for admission of hearsay evidence will be its reliability, we must ask to what extent will the existing rules survive the enactment of the Code. This is a general question, not simply confined to conspiracy or pre-concert cases.
Under the proposed Code, hearsay evidence is admissible in criminal proceedings if the circumstances in which it was obtained provide reasonable assurance that it is reliable: cl 19, and if procedural preliminaries to provide for the hearing of any admissibility challenge have been met.
The Code does not provide detail on the reliability criteria, so the question arises as to what will be the status under the Code of the common law rules that have developed to deal with the admissibility of hearsay statements of alleged co-conspirators, or of alleged participants in a joint enterprise (accomplices).
In Mapara, the Supreme Court of Canada held, 7 to 2, that the common law rules do provide sufficient assurance of reliability for there to be no need for a separate reliability decision (para 27), except in rare cases when the accused can point to evidence raising serious and real concerns as to reliability (para 30).
The relevant rules in Canada are similar to those that currently apply in New Zealand: there are three matters that have to be considered. The Canadian formulation of these, set out in R. v. Carter [1982] 1 S.C.R. 938, requires first, proof beyond reasonable doubt that there was a conspiracy or common design of the kind alleged; second, proof on the balance of probabilities and on non-hearsay evidence that the accused was a member of that conspiracy or common design; third, that the hearsay statement was made in furtherance of the conspiracy or common design.
It must be acknowledged that in New Zealand these rules have yet to achieve such clarity. There is a tendency to merge the first and second issues into a requirement that the accused be shown to have shared in a common purpose: eg R v Humphries [1982] 1 NZLR 353 (CA). Further, there is some wavering as to the standard of proof required for the second matter, some cases indicate that "reasonable evidence" is sufficient, while others require proof on the balance of probabilities. For the "reasonable evidence" requirement, see R v Karpavicius 12/9/00, Anderson J, HC Auckland T001037, para 17. For the balance of probabilities formulation see R v M 2/5/01, William Young J, HC Christchurch T14/01, at [51], although the Judge doubted that this was any more exacting, from the Crown’s point of view, than the unadorned reasonable evidence test, and on appeal the Court of Appeal took the same approach: R v M 11/7/01, CA135/01.
Given that the common law rules are aimed at preventing the admission of unreliable evidence, and that under the proposed Code the criterion for admission of hearsay evidence will be its reliability, we must ask to what extent will the existing rules survive the enactment of the Code. This is a general question, not simply confined to conspiracy or pre-concert cases.
Friday, April 22, 2005
A slippery slope
What is a reasonable doubt? Judges and juries may disagree over whether the prosecution has established beyond reasonable doubt that a confession was obtained voluntarily.
If the judge thinks the prosecution has proved that the confession was voluntary, then it is admissible. The jury (or, perhaps, any individual juror) may, however, not think the prosecution has proved the voluntariness of the confession beyond reasonable doubt. Where that is so, the jury (or, perhaps, the juror) must ignore the confession. This was established in R v Mushtaq [2005] UKHL 22 (21 April 2005), in a decision departing from the law as it had been understood to be (Chan Wei Keung v R [1967] 2 AC 160, and disagreeing with Basto v R (1954) 91 CLR 628 HCA).
The Law Lords did not consider the difficulties suggested by the phrases I have put in brackets: does the jury act as a whole in determining the voluntariness of the confession, so that it is only voluntary if all jurors agree that the prosecution has proved that beyond reasonable doubt? Or, is it a matter for each juror individually to determine when assessing what evidence he accepts and what he rejects?
Normally, jurors are told to act as individual fact-finders; the only requirement for unanimity attaches to the verdict they reach. This suggests that some jurors might rely on a confession as evidence of guilt, because they are satisfied that it was made voluntarily and is in other respects reliable, whereas other jurors may have to reach a conclusion without using the confession if they have a reasonable doubt about its having been voluntary.
One would have thought that it is correct to regard the jurors as individuals on all matters except the verdict, although the Supreme Court of New Zealand has, without directly addressing the point, apparently regarded the jurors as having to be unanimous on whether the basis for a statutory presumption to operate has been proved: Siloata v R 16/12/04, SC CRI 8/2004.
Apart from this uncertainty, which will probably be resolved in favour of the jurors-as-individuals approach, Mushtaq carries the theoretical danger that weak judges will tend to ignore their own doubts about the voluntariness of confessions, knowing that the jurors will have to make up their own minds about that.
The rationale of Mushtaq is based on the right to a fair trial, and the associated right against self-incrimination, and the role of the jurors as the ultimate arbiters of fact (per Lord Rodger at para 46, 49, 54, Lords Steyn, and Phillips agreeing; and per Lord Carswell at para 73; Lord Hutton dissented on the law, holding that the traditional distinction between the functions of judge and jury, admissibility and weight, applied). Given that potentially broad base, one might wonder whether the admissibility consequences of other forms of official misconduct, for example wrongful search procedures, are going to be left to juries. Why should the defence be prevented, after an unsuccessful voir dire on the issue of unreasonability of search and the application of Shaheed balancing, from raising the same matters with the jury as the basis for a submission that they should ignore the evidence that the judge has ruled admissible?
To prevent that, emphasis would have to be given to the special responsibility of the judiciary to oversee the propriety of police conduct and to prevent abuse of process, but the majority in Mushtaq did not rely on that point. The 4 to 1 rejection of Lord Hutton’s approach counts against this view. The better argument is that Mushtaq is based in trial fairness, whereas the public policy exclusion of improperly obtained evidence does not necessarily involve trial fairness considerations, so the Judge has sole jurisdiction over the admissibility of that evidence. However, to argue that way is to concede (dangerously) that the jury should have jurisdiction to ignore evidence in the interests of what it considers to be trial fairness. The law is poised at the top of a slippery slope.
If the judge thinks the prosecution has proved that the confession was voluntary, then it is admissible. The jury (or, perhaps, any individual juror) may, however, not think the prosecution has proved the voluntariness of the confession beyond reasonable doubt. Where that is so, the jury (or, perhaps, the juror) must ignore the confession. This was established in R v Mushtaq [2005] UKHL 22 (21 April 2005), in a decision departing from the law as it had been understood to be (Chan Wei Keung v R [1967] 2 AC 160, and disagreeing with Basto v R (1954) 91 CLR 628 HCA).
The Law Lords did not consider the difficulties suggested by the phrases I have put in brackets: does the jury act as a whole in determining the voluntariness of the confession, so that it is only voluntary if all jurors agree that the prosecution has proved that beyond reasonable doubt? Or, is it a matter for each juror individually to determine when assessing what evidence he accepts and what he rejects?
Normally, jurors are told to act as individual fact-finders; the only requirement for unanimity attaches to the verdict they reach. This suggests that some jurors might rely on a confession as evidence of guilt, because they are satisfied that it was made voluntarily and is in other respects reliable, whereas other jurors may have to reach a conclusion without using the confession if they have a reasonable doubt about its having been voluntary.
One would have thought that it is correct to regard the jurors as individuals on all matters except the verdict, although the Supreme Court of New Zealand has, without directly addressing the point, apparently regarded the jurors as having to be unanimous on whether the basis for a statutory presumption to operate has been proved: Siloata v R 16/12/04, SC CRI 8/2004.
Apart from this uncertainty, which will probably be resolved in favour of the jurors-as-individuals approach, Mushtaq carries the theoretical danger that weak judges will tend to ignore their own doubts about the voluntariness of confessions, knowing that the jurors will have to make up their own minds about that.
The rationale of Mushtaq is based on the right to a fair trial, and the associated right against self-incrimination, and the role of the jurors as the ultimate arbiters of fact (per Lord Rodger at para 46, 49, 54, Lords Steyn, and Phillips agreeing; and per Lord Carswell at para 73; Lord Hutton dissented on the law, holding that the traditional distinction between the functions of judge and jury, admissibility and weight, applied). Given that potentially broad base, one might wonder whether the admissibility consequences of other forms of official misconduct, for example wrongful search procedures, are going to be left to juries. Why should the defence be prevented, after an unsuccessful voir dire on the issue of unreasonability of search and the application of Shaheed balancing, from raising the same matters with the jury as the basis for a submission that they should ignore the evidence that the judge has ruled admissible?
To prevent that, emphasis would have to be given to the special responsibility of the judiciary to oversee the propriety of police conduct and to prevent abuse of process, but the majority in Mushtaq did not rely on that point. The 4 to 1 rejection of Lord Hutton’s approach counts against this view. The better argument is that Mushtaq is based in trial fairness, whereas the public policy exclusion of improperly obtained evidence does not necessarily involve trial fairness considerations, so the Judge has sole jurisdiction over the admissibility of that evidence. However, to argue that way is to concede (dangerously) that the jury should have jurisdiction to ignore evidence in the interests of what it considers to be trial fairness. The law is poised at the top of a slippery slope.
Thursday, April 21, 2005
Turpitudinous driving
Motor manslaughter must be distinguished from causing death by reckless driving, causing death by dangerous driving, and causing death by careless driving. The Crimes Act 1961[NZ], s 150A(2) applies, inter alia, to motor manslaughter charges, and it requires "a major departure from the standard of care expected of a reasonable [driver]".
While manslaughter requires that death be caused by an unlawful act, mere negligent driving, or dangerous driving, is of itself an insufficiently unlawful act to constitute manslaughter because those are separate offences. In R v Powell [2002] 1 NZLR 666 (CA) it was held that that where the unlawful act relied on as the basis of a manslaughter charge involves carelessness or negligence, the same high degree of negligence is required as for breaches of the legal duties to which s 150A expressly applies. See also R v Fenton [2003] 3 NZLR 439; (2003) 20 CRNZ 76 (CA).
What amounts to a major departure from the standard of care expected of a reasonable driver, so as to be more than dangerous driving causing death, is a matter for the jury to decide, and it is difficult to formulate general guidelines. The Privy Council has considered this in Brown v The Queen (Jamaica) [2005] UKPC 18 (13 April 2005). There, it was held that the offence of motor manslaughter must be defined in the context of similar offences such as, in that case, reckless driving causing death. This case is applicable to the New Zealand context, where there are offences of reckless, dangerous and careless driving. At para 25 of Brown the Board held:
"There must be proof of an extra ingredient, over and above the elements proof of which will ground a charge of causing death by reckless driving, but in their Lordships' opinion juries have to be directed on the meaning of recklessness if they are to give proper consideration to a charge of motor manslaughter."
An appropriate direction to the jury would need to be framed around the following considerations, para 30:
"(a) Manslaughter in this context requires, first, proof of recklessness in the driving of a motor vehicle, plus an extra element of turpitude. That extra element is that the risk of death being caused by the manner of the defendant's driving must in fact be very high.
(b) The jury should be told specifically that it is open to them to convict the defendant of causing death by reckless driving if they are not satisfied that the risk of death being caused was sufficiently high.
(c) Proof of reckless driving requires the jury to be satisfied
(i) that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property;
(ii) that in driving in that manner the defendant had recognised that there was some risk of causing such injury or damage and had nevertheless gone on to take the risk.
(d) It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard which from their experience and observation would be observed by the ordinary and prudent motorist.
(e) If satisfied that an obvious and serious risk was created by the manner of the defendant's driving, the jury must, in order to reach a finding of recklessness, find that he appreciated the existence of the risk; but they are entitled to infer that he was in that state of mind, though regard must be given to any explanation he gives as to his state of mind which displaces the inference."
In New Zealand law, reckless driving involves foresight of dangerous consequences that could well happen combined with an intention to continue a course of conduct even though those consequences are a clear risk: R v Harney [1987] 2 NZLR 576 (CA). This might be compared with the law of England and Wales, which is currently that (Brown, para 26) a person is reckless with respect to "(i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk": R v G [2004] 1 AC 1034. In New Zealand, the position is summarised in Brookers Law of Transportation as:
"… there are three elements involved in proving reckless driving:
(a) The driver fell below the standard of care expected of a reasonable and competent driver.
(b) The resulting situation was objectively dangerous.
(c) The driver was aware of the potential danger and continued to act despite knowledge of the possible consequences."
Reckless driving is thus dangerous driving with an added element of foresight. Dangerous driving is judged objectively, but includes a requirement of failure to meet the standard of care required of a reasonable and competent driver.
Brown should be of assistance in motor manslaughter cases in New Zealand. Whether a conviction for manslaughter is appropriate in respect of a death arising from reckless driving will be a matter for the jury to determine according to whether the risk of death, in the circumstances known to the accused, was, judged objectively, "very high". What the accused knew includes what he was indifferent to, and what he closed his mind to: R v Reid [1992] 1 WLR 793 (HL) per Lord Goff at 810 – 811.
Another aspect of Brown is the treatment of three points which were submitted to have given rise to substantial miscarriages of justice. These were: unfairness in the judge’s summing up; failure in the summing up to distinguish the functions of judge and jury; failure of defence counsel to rely on the accused’s good character.
The first point was considered in the context of the summing up as a whole, and it was held that there was no unfairness. There was thus no miscarriage of justice, and a fortiori no "substantial" miscarriage of justice, and the proviso did not need to be resorted to.
The failure to distinguish functions of judge and jury was made out as a point, but again, read in the overall context the Board was able to conclude ("not without hesitation": para 34) that the jury would have been aware of its proper function. The judge’s misdirection was a miscarriage of justice, but it was not substantial, and the proviso was applied.
The good character point was a "regrettable omission" by counsel (para 38), but again, on balance, the proviso was applied because the miscarriage of justice was, in the particular circumstances of the case, not substantial.
While manslaughter requires that death be caused by an unlawful act, mere negligent driving, or dangerous driving, is of itself an insufficiently unlawful act to constitute manslaughter because those are separate offences. In R v Powell [2002] 1 NZLR 666 (CA) it was held that that where the unlawful act relied on as the basis of a manslaughter charge involves carelessness or negligence, the same high degree of negligence is required as for breaches of the legal duties to which s 150A expressly applies. See also R v Fenton [2003] 3 NZLR 439; (2003) 20 CRNZ 76 (CA).
What amounts to a major departure from the standard of care expected of a reasonable driver, so as to be more than dangerous driving causing death, is a matter for the jury to decide, and it is difficult to formulate general guidelines. The Privy Council has considered this in Brown v The Queen (Jamaica) [2005] UKPC 18 (13 April 2005). There, it was held that the offence of motor manslaughter must be defined in the context of similar offences such as, in that case, reckless driving causing death. This case is applicable to the New Zealand context, where there are offences of reckless, dangerous and careless driving. At para 25 of Brown the Board held:
"There must be proof of an extra ingredient, over and above the elements proof of which will ground a charge of causing death by reckless driving, but in their Lordships' opinion juries have to be directed on the meaning of recklessness if they are to give proper consideration to a charge of motor manslaughter."
An appropriate direction to the jury would need to be framed around the following considerations, para 30:
"(a) Manslaughter in this context requires, first, proof of recklessness in the driving of a motor vehicle, plus an extra element of turpitude. That extra element is that the risk of death being caused by the manner of the defendant's driving must in fact be very high.
(b) The jury should be told specifically that it is open to them to convict the defendant of causing death by reckless driving if they are not satisfied that the risk of death being caused was sufficiently high.
(c) Proof of reckless driving requires the jury to be satisfied
(i) that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property;
(ii) that in driving in that manner the defendant had recognised that there was some risk of causing such injury or damage and had nevertheless gone on to take the risk.
(d) It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard which from their experience and observation would be observed by the ordinary and prudent motorist.
(e) If satisfied that an obvious and serious risk was created by the manner of the defendant's driving, the jury must, in order to reach a finding of recklessness, find that he appreciated the existence of the risk; but they are entitled to infer that he was in that state of mind, though regard must be given to any explanation he gives as to his state of mind which displaces the inference."
In New Zealand law, reckless driving involves foresight of dangerous consequences that could well happen combined with an intention to continue a course of conduct even though those consequences are a clear risk: R v Harney [1987] 2 NZLR 576 (CA). This might be compared with the law of England and Wales, which is currently that (Brown, para 26) a person is reckless with respect to "(i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk": R v G [2004] 1 AC 1034. In New Zealand, the position is summarised in Brookers Law of Transportation as:
"… there are three elements involved in proving reckless driving:
(a) The driver fell below the standard of care expected of a reasonable and competent driver.
(b) The resulting situation was objectively dangerous.
(c) The driver was aware of the potential danger and continued to act despite knowledge of the possible consequences."
Reckless driving is thus dangerous driving with an added element of foresight. Dangerous driving is judged objectively, but includes a requirement of failure to meet the standard of care required of a reasonable and competent driver.
Brown should be of assistance in motor manslaughter cases in New Zealand. Whether a conviction for manslaughter is appropriate in respect of a death arising from reckless driving will be a matter for the jury to determine according to whether the risk of death, in the circumstances known to the accused, was, judged objectively, "very high". What the accused knew includes what he was indifferent to, and what he closed his mind to: R v Reid [1992] 1 WLR 793 (HL) per Lord Goff at 810 – 811.
Another aspect of Brown is the treatment of three points which were submitted to have given rise to substantial miscarriages of justice. These were: unfairness in the judge’s summing up; failure in the summing up to distinguish the functions of judge and jury; failure of defence counsel to rely on the accused’s good character.
The first point was considered in the context of the summing up as a whole, and it was held that there was no unfairness. There was thus no miscarriage of justice, and a fortiori no "substantial" miscarriage of justice, and the proviso did not need to be resorted to.
The failure to distinguish functions of judge and jury was made out as a point, but again, read in the overall context the Board was able to conclude ("not without hesitation": para 34) that the jury would have been aware of its proper function. The judge’s misdirection was a miscarriage of justice, but it was not substantial, and the proviso was applied.
The good character point was a "regrettable omission" by counsel (para 38), but again, on balance, the proviso was applied because the miscarriage of justice was, in the particular circumstances of the case, not substantial.
Wednesday, April 13, 2005
Words for the living, money for the dead
Remedies available to prisoners who have been denied the right to a fair hearing, or denied the right to legal representation, on charges relating to prison discipline, may be quite modest. In Whitfield and Others v. the United Kingdom [2005] ECHR 234, 12 April 2005, the European Court of Human Rights found in favour of 3 prisoners, one of whom was now dead, and held that for the two who were still alive, the findings of the Court were just satisfaction, and the deceased prisoner’s estate was awarded E3,000 for non-pecuniary damage. Each was awarded E2,500 for costs and expenses.
Friday, April 01, 2005
Errors at trial
Complaints about the quality of their legal representation are sometimes made by people who are convicted at trial. These complaints rarely succeed in achieving, on appeal, the grant of a new trial. Occasionally, however, counsel who acted at trial may provide the appellate court with sufficient information to support a conclusion that there had been a significant error at trial. This occurred in relation to one of the appeals in Teeluck v The State (Trinidad and Tobago) [2005] UKPC 14 (23 March 2005).
Interestingly, the focus is not on the extent to which the quality of the legal representation at trial fell below professional standards, although the court may well (and here, did) comment on that. Rather, the focus is on the impact which the error(s) of counsel had on the trial and verdict (para 39). On appeal, the issue is whether the verdict of a reasonable jury would inevitably have been the same if the error(s) had not occurred (para 40).
This is not to say that this is always the test to determine when mistakes have deprived the accused of a fair trial. Loss of a fair chance of an acquittal is indeed a sufficient, but not a necessary, condition for a finding that the trial was unfair. As the Privy Council held in Randall v R [2002] UKPC 19 (16 April 2002), para 28:
"There will come a point where the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial."
Teeluck concerns the consequence of the absence of the mandatory direction on good character evidence. Once good character has been raised by the defence, the direction must be given, but a mere assertion of absence of criminal convictions is of itself insufficient to raise the issue. New Zealand law is to the same effect: R v Falealili [1996] 3 NZLR 664 (CA).
Interestingly, the focus is not on the extent to which the quality of the legal representation at trial fell below professional standards, although the court may well (and here, did) comment on that. Rather, the focus is on the impact which the error(s) of counsel had on the trial and verdict (para 39). On appeal, the issue is whether the verdict of a reasonable jury would inevitably have been the same if the error(s) had not occurred (para 40).
This is not to say that this is always the test to determine when mistakes have deprived the accused of a fair trial. Loss of a fair chance of an acquittal is indeed a sufficient, but not a necessary, condition for a finding that the trial was unfair. As the Privy Council held in Randall v R [2002] UKPC 19 (16 April 2002), para 28:
"There will come a point where the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial."
Teeluck concerns the consequence of the absence of the mandatory direction on good character evidence. Once good character has been raised by the defence, the direction must be given, but a mere assertion of absence of criminal convictions is of itself insufficient to raise the issue. New Zealand law is to the same effect: R v Falealili [1996] 3 NZLR 664 (CA).
Wednesday, March 30, 2005
Remedies for rights breaches
The idea that breach of the Bill of Rights may attract a remedy, usually called compensation, against the Crown and distinct from tortious liability for damages, has received a boost from the Privy Council: Attorney-General of Trinidad and Tobago v Ramanoop [2005] UKPC 15 (23 March 2005). The Law Lords referred to decisions of the New Zealand Court of Appeal, finding that dicta of Cooke P in Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667, 678, and Thomas J in Dunlea v Attorney-General [2000] 3 NZLR 136, 152 were of particular assistance.
There is a difference between the Constitution of Trinidad and Tobago, and the New Zealand Bill of Rights Act 1990, in that the former expressly provides that a person may apply by way of originating motion to the High Court for redress for breach of rights, without prejudice to any other action in respect of the same matter which is lawfully available. No equivalent exists in the latter. However, the NZBORA does not exclude a constitutional, as distinct from a private law, remedy. The question becomes one of whether the court can create a constitutional remedy for breach of constitutionally protected rights.
Professor Jim Evans has doubted the correctness of Baigent’s Case, in which a constitutional remedy was created: "What Does it Mean to Say Someone Has a Legal Right?" (1998) 9 Otago Law Review 301. In Brown v Attorney-General (discussed in these blogs, March 6, 2005) a majority of the Court of Appeal doubted, obiter, and without citing Professor Evans’s article, whether constitutional remedies should be available for breach of the right to a fair trial. The question can therefore be said still to be open.
The judgment of Thomas J, endorsed by the Privy Council, includes the following observations:
[55] Baigent’s Case established a new cause of action and remedy in compensation for a breach of the Bill of Rights. It applies, not only where there is no existing cause of action, but also where the existing cause of action and consequential remedy is inadequate. The focus is on the inadequacy as well as the availability of the cause of action. Consequently, to seek to restrict the remedy provided by Baigent’s Case to situations where there is no existing common law cause of action is not in accord with the ratio of the majority decision in that case. Furthermore, such claimed exclusivity runs counter to the fact that a number of causes of action deriving from statute or common law can and do exist concurrently and frequently overlap.
[56] Nor is the attempted exclusion particularly logical in that the cause of action under the Bill of Rights does not duplicate the common law cause of action. As I emphasise below, the common law cause of action is a private remedy to redress a private wrong. The cause of action under the Bill of Rights is a public law remedy based on a right in the nature of a public right. The Crown’s liability is not vicarious as it would be in tort. Its liability arises directly from the fact that in affirming fundamental rights in the Bill of Rights, the State has undertaken a constitutional obligation to respect, protect and vindicate those rights. Why, then, when the State has failed in that obligation should that essentially different public law remedy lie dormant if there is an equivalent common law private law civil action, and only arise from its torpor if and when there is no such cause of action? What is there in this public law remedy which would restrict it to such a back-up role? How can it be said that the elements of this public law remedy will only exist when the plaintiff has no common law remedy but not when he or she has such a remedy? Are we to pretend that the public law factors in respect of a breach of the Bill of Rights only arise where by fortuitous happenstance there is no equivalent private law remedy? Is there some policy consideration which is yet to be disclosed?
[57] I prefer to accept that Baigent’s Case established a new remedy for a violation of the Bill of Rights and that the key question which arises is not whether a remedy is available for that violation, but whether the existing private law remedies are adequate to provide an effective remedy for such a violation. Contrary to the Crown’s submission, I take the view that existing private law remedies are inadequate to vindicate those rights, and I turn to the critical need for such vindication.
…
[64] Compensation will not be effective to vindicate and affirm the right which has been violated, however, unless the quantum of the award recognises that a fundamental right possessed by the plaintiff has been denied. It follows that the award cannot be simply equated with damages for "equivalent" breaches of common law torts such as wrongful arrest, false imprisonment, or the like. The focus of the Court is wider and must embrace the impact of the State’s violation of the citizen’s fundamental rights."
These observations are similar to those of the Privy Council on the topic of the ingredients of the constitutional remedy (para 19) in Ramanoop.
The critical question at the present stage is whether the court should "recognise" the existence of a constitutional remedy, or whether the court should conclude that the matter is one for the legislature, and that until Parliament creates a constitutional remedy there is none. Why, however, is this an issue, after the Court of Appeal’s decision in Baigent’s Case? The CA has traditionally been regarded as normally being bound by its own decisions. Exceptions exist, where the law has been shown to have been decided wrongly, or where changes in the needs of society make change in the law desirable. Has an error in Baigent’s Case been demonstrated? Have social needs changed? The new circumstance is the existence of the Supreme Court, which last year took over the role of the less accessible Privy Council. One might surmise that the CA is willing to revise its earlier decisions in the interests of getting issues before the SC for final determination.
There is a difference between the Constitution of Trinidad and Tobago, and the New Zealand Bill of Rights Act 1990, in that the former expressly provides that a person may apply by way of originating motion to the High Court for redress for breach of rights, without prejudice to any other action in respect of the same matter which is lawfully available. No equivalent exists in the latter. However, the NZBORA does not exclude a constitutional, as distinct from a private law, remedy. The question becomes one of whether the court can create a constitutional remedy for breach of constitutionally protected rights.
Professor Jim Evans has doubted the correctness of Baigent’s Case, in which a constitutional remedy was created: "What Does it Mean to Say Someone Has a Legal Right?" (1998) 9 Otago Law Review 301. In Brown v Attorney-General (discussed in these blogs, March 6, 2005) a majority of the Court of Appeal doubted, obiter, and without citing Professor Evans’s article, whether constitutional remedies should be available for breach of the right to a fair trial. The question can therefore be said still to be open.
The judgment of Thomas J, endorsed by the Privy Council, includes the following observations:
[55] Baigent’s Case established a new cause of action and remedy in compensation for a breach of the Bill of Rights. It applies, not only where there is no existing cause of action, but also where the existing cause of action and consequential remedy is inadequate. The focus is on the inadequacy as well as the availability of the cause of action. Consequently, to seek to restrict the remedy provided by Baigent’s Case to situations where there is no existing common law cause of action is not in accord with the ratio of the majority decision in that case. Furthermore, such claimed exclusivity runs counter to the fact that a number of causes of action deriving from statute or common law can and do exist concurrently and frequently overlap.
[56] Nor is the attempted exclusion particularly logical in that the cause of action under the Bill of Rights does not duplicate the common law cause of action. As I emphasise below, the common law cause of action is a private remedy to redress a private wrong. The cause of action under the Bill of Rights is a public law remedy based on a right in the nature of a public right. The Crown’s liability is not vicarious as it would be in tort. Its liability arises directly from the fact that in affirming fundamental rights in the Bill of Rights, the State has undertaken a constitutional obligation to respect, protect and vindicate those rights. Why, then, when the State has failed in that obligation should that essentially different public law remedy lie dormant if there is an equivalent common law private law civil action, and only arise from its torpor if and when there is no such cause of action? What is there in this public law remedy which would restrict it to such a back-up role? How can it be said that the elements of this public law remedy will only exist when the plaintiff has no common law remedy but not when he or she has such a remedy? Are we to pretend that the public law factors in respect of a breach of the Bill of Rights only arise where by fortuitous happenstance there is no equivalent private law remedy? Is there some policy consideration which is yet to be disclosed?
[57] I prefer to accept that Baigent’s Case established a new remedy for a violation of the Bill of Rights and that the key question which arises is not whether a remedy is available for that violation, but whether the existing private law remedies are adequate to provide an effective remedy for such a violation. Contrary to the Crown’s submission, I take the view that existing private law remedies are inadequate to vindicate those rights, and I turn to the critical need for such vindication.
…
[64] Compensation will not be effective to vindicate and affirm the right which has been violated, however, unless the quantum of the award recognises that a fundamental right possessed by the plaintiff has been denied. It follows that the award cannot be simply equated with damages for "equivalent" breaches of common law torts such as wrongful arrest, false imprisonment, or the like. The focus of the Court is wider and must embrace the impact of the State’s violation of the citizen’s fundamental rights."
These observations are similar to those of the Privy Council on the topic of the ingredients of the constitutional remedy (para 19) in Ramanoop.
The critical question at the present stage is whether the court should "recognise" the existence of a constitutional remedy, or whether the court should conclude that the matter is one for the legislature, and that until Parliament creates a constitutional remedy there is none. Why, however, is this an issue, after the Court of Appeal’s decision in Baigent’s Case? The CA has traditionally been regarded as normally being bound by its own decisions. Exceptions exist, where the law has been shown to have been decided wrongly, or where changes in the needs of society make change in the law desirable. Has an error in Baigent’s Case been demonstrated? Have social needs changed? The new circumstance is the existence of the Supreme Court, which last year took over the role of the less accessible Privy Council. One might surmise that the CA is willing to revise its earlier decisions in the interests of getting issues before the SC for final determination.
Monday, March 28, 2005
Class A drug supply sentencing levels
With a sideways look at statutory indications in Australia, a Divisional bench of the Court of Appeal has given guidance on the approach to sentencing for class A drug dealing offences: R v Arthur 17/3/05, CA382/04.
For reasons of etiquette as much as of law, the Court refrained from calling its decision a "guideline" or "tariff" judgment, as the bench included only one permanent member of the Court of Appeal. Left for clarification is whether this guidance applies to class A drug offences other than those involving methamphetamine, especially the hallucinogenic drugs.
General points notable in Arthur are:
For reasons of etiquette as much as of law, the Court refrained from calling its decision a "guideline" or "tariff" judgment, as the bench included only one permanent member of the Court of Appeal. Left for clarification is whether this guidance applies to class A drug offences other than those involving methamphetamine, especially the hallucinogenic drugs.
General points notable in Arthur are:
- The starting point for a sentence is determined, before taking into account matters of aggravation (such as relevant previous convictions) and mitigation (such as guilty plea).
- The sentencing principles in the Sentencing Act 2002 take effect once the starting point is set, unless for truly exceptional reasons a custodial sentence is not appropriate.
- The starting points set out in Arthur apply to offences of supply. Importing or manufacturing may warrant higher levels of sentence.
- The quantity of drug involved in the offending, although important, is not the only factor to consider, therefore there may be some overlap between the ranges of the starting points.
The ranges of appropriate starting points, based on those applicable in New South Wales, are:
- Low level supply, up to 5 grams, from 2 to 4 years’ imprisonment
- Commercial quantity supply, between 5 and 250 grams, from 3 to 9 years’ imprisonment
- Large commercial quantity supply, in excess of 250 grams, upwards of 8 years’ imprisonment
The Court noted that, for the low level offending, sentence ranges were similar to those that have recently been applied in the High Court.
We can be pleased that the Court refrained from repeating one of the hackneyed tautologies of deterrent sentencing: that in addition to setting the starting points high in the interests of general deterrence, the court places little importance on the particular circumstances of the individual offender. This is a tautology because setting sentencing levels by the requirements of general deterrence itself involves ignoring the particular circumstances of individual offenders; there is no need to ignore them twice, for on the second occasion they may be ignored at the expense of justice. That is particularly important because, even under a regimen of general deterrence, some movement back from the higher levels of sentence may be required in the interests of justice to acknowledge the particular circumstances of an individual offender.
Update: Subsequently, in R v Fatu CA415/04, 18/11/05, guidelines for methamphetamine dealing (manufacturing, importing, supplying) were set down, based on the Arthur levels but with increases to reflect the greater seriousness of importing and manufacturing as compared with supplying. The Court used the quantity of drug, rather than its value, as the basic yardstick, and made no reference to ignoring the personal circumstances of the offender. The starting points set down were based on the seriousness of the offending, and recognition could then be given to the individual aggravating and mitigating circumstances. It is still not clear how broadly the mitigating circumstances personal to the offender can be construed under Fatu; traditionally these have been presence or absence of previous convictions and an early plea of guilty signifying remorse.
Friday, March 18, 2005
Duress of circumstances?
In view of R v Hasan [2005] UKHL 22 (17 March 2005) we may doubt whether there is any room for the common law development of a defence of "duress of circumstances" as a defence separate from coercion (s 24 Crimes Act 1961[NZ]).
Lord Bingham, delivering the leading opinion on the issue of duress – the common law version of coercion – observed that duress is akin to the defence of necessity, which applies to threats which are not of human origin but rather consist in the force of extraneous circumstances (para 19). Given that non-human perils are in the domain of necessity (a common law defence in New Zealand), and threats by humans are in the domain of duress (a common law defence in the UK), duress is only a common law defence in New Zealand if it is not covered by the statutory defence of compulsion. Is, therefore, the common law defence of duress wider than the statutory defence of compulsion?
Hasan suggests that it is not. Lord Bingham tightened the criteria for the operation of duress (para 22, for reasons he set out in paras 18 – 20), and indicated that circumstances falling short of being a defence might appropriately be considered as mitigating sentence.
The issues on duress in Hasan were decided by holding that the defence is not available if there was a reasonable (not merely a subjective) risk of exposure to threats, and that such threats were not limited to those directed at the commission of the type of crime that was actually committed. A reasonably appreciable risk of being exposed to threats directed at the commission of an offence, as a result of the defendant’s having associated with the person who makes the threat, would thus make the defence unavailable. The other narrow limits to the defence of duress were set out in para 21. The position of undercover officers was deliberately left for future determination, and Lady Hale would have made some allowance for defendants in battered spouse relationships.
In Kapi v MOT (1991) 8 CRNZ 49 (CA), at 57, the Court said, of the possible defence which it referred to as "necessity":
"We consider on the authorities cited to us that a defence of necessity, if available in New Zealand, requires at least a belief formed on reasonable grounds of imminent peril of death or serious injury. Breach of the law then is excused only where there is no realistic choice but to act in that way. Even then the response can be excused only where it is proportionate to the peril."
To the extent that the threats in Kapi were of human origin, the Court should be taken to be referring to the mooted common law defence of duress of circumstances, as necessity is limited to non-human threats. But further, if the common law defence (called duress, but, as is implicit in Hasan, synonymously duress of circumstances) is as constrained as indicated in Hasan, then the relevant defence in Kapi was the statutory defence of coercion.
In Police v Kawiti [2000] 1 NZLR 117; (1999) 17 CRNZ 88, Salmon J, the defence is properly called necessity, not duress of circumstances.
The statutory elements of coercion can, on facts which substantiate lack of moral fault, be interpreted liberally. In R v Jones [2004] EWCA Crim 1981, at para 51, it was pointed out that the requirement of immediacy of threatened serious harm would not be so restrictive so as to exclude, for example, harm that was inevitable albeit not immediate.
Lord Bingham, delivering the leading opinion on the issue of duress – the common law version of coercion – observed that duress is akin to the defence of necessity, which applies to threats which are not of human origin but rather consist in the force of extraneous circumstances (para 19). Given that non-human perils are in the domain of necessity (a common law defence in New Zealand), and threats by humans are in the domain of duress (a common law defence in the UK), duress is only a common law defence in New Zealand if it is not covered by the statutory defence of compulsion. Is, therefore, the common law defence of duress wider than the statutory defence of compulsion?
Hasan suggests that it is not. Lord Bingham tightened the criteria for the operation of duress (para 22, for reasons he set out in paras 18 – 20), and indicated that circumstances falling short of being a defence might appropriately be considered as mitigating sentence.
The issues on duress in Hasan were decided by holding that the defence is not available if there was a reasonable (not merely a subjective) risk of exposure to threats, and that such threats were not limited to those directed at the commission of the type of crime that was actually committed. A reasonably appreciable risk of being exposed to threats directed at the commission of an offence, as a result of the defendant’s having associated with the person who makes the threat, would thus make the defence unavailable. The other narrow limits to the defence of duress were set out in para 21. The position of undercover officers was deliberately left for future determination, and Lady Hale would have made some allowance for defendants in battered spouse relationships.
In Kapi v MOT (1991) 8 CRNZ 49 (CA), at 57, the Court said, of the possible defence which it referred to as "necessity":
"We consider on the authorities cited to us that a defence of necessity, if available in New Zealand, requires at least a belief formed on reasonable grounds of imminent peril of death or serious injury. Breach of the law then is excused only where there is no realistic choice but to act in that way. Even then the response can be excused only where it is proportionate to the peril."
To the extent that the threats in Kapi were of human origin, the Court should be taken to be referring to the mooted common law defence of duress of circumstances, as necessity is limited to non-human threats. But further, if the common law defence (called duress, but, as is implicit in Hasan, synonymously duress of circumstances) is as constrained as indicated in Hasan, then the relevant defence in Kapi was the statutory defence of coercion.
In Police v Kawiti [2000] 1 NZLR 117; (1999) 17 CRNZ 88, Salmon J, the defence is properly called necessity, not duress of circumstances.
The statutory elements of coercion can, on facts which substantiate lack of moral fault, be interpreted liberally. In R v Jones [2004] EWCA Crim 1981, at para 51, it was pointed out that the requirement of immediacy of threatened serious harm would not be so restrictive so as to exclude, for example, harm that was inevitable albeit not immediate.
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