The need to avoid a substantial miscarriage of justice is the pervasive criterion for the correctness of decisions, considered individually and collectively, made by the trial judge. It is undoubtedly true, as Lord Rodger recently observed in relation to fairness, that the appellate court may have the advantage of a clearer perspective on whether a substantial miscarriage of justice has occurred: Holland v HM Advocate (Devolution) [2005] UKPC D1 (11 May 2005), para 41. It is therefore a natural, and widespread practice throughout the common law jurisdictions, for appellate courts to have to consider whether any miscarriage of justice that had occurred was indeed substantial. If it was not, appeals will be dismissed. Trial judges, absorbed in their task of trying to make the law work, will naturally bear in mind this ultimate criterion.
Substantial miscarriages of justice are currently seen as being of two types. The first arises where error at trial deprives the accused of a reasonable chance of an acquittal. This does not necessarily mean that the trial was unfair, as it includes situations of freshly obtained evidence which do not impugn the fairness of the trial, only the correctness of its result. Other examples of loss of a reasonable chance of acquittal may involve trial unfairness. The second type of substantial miscarriage of justice does invlove trial fairness. It includes cases where the course taken resulted in bias, actual or perceived, and cases where the trial was not according to law. In this second type of substantial miscarriage of justice, loss of a reasonable chance of acquittal is irrelevant, as even a person who is patently guilty is entitled to trial according to law: Randall v R [2002] UKPC 19 (16 April 2002); [2002] 1 WLR 2237 (PC), at 2251 para 28.
Thus the two elements, loss of a reasonable chance of acquittal, and loss of the right to a trial that is fair to the accused, are of primary importance. This should be reflected in the overarching provisions of evidence law.
In its application to criminal proceedings, the Evidence Bill falls short of recognising the primacy of these elements. Clause 6 states:
6 Purpose
The purpose of this Act is to help secure the just determination of proceedings by---
(a) providing for facts to be established by the application of logical rules; and
(b) promoting fairness to parties and witnesses; and
(c) protecting rights of confidentiality and other important public interests; and
(d) avoiding unjustifiable expense and delay.
The expression "fairness to parties and witnesses" does not recognise the ranking of the importance of fairness to the accused, to the prosecution, and to witnesses.
[Update: the Evidence Bill was enacted, in revised form, as the Evidence Act 2006. Its purposes have been expanded by inserting in s 6 the following purpose: "providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990". This requires the Courts to recognise the absolute nature of the accused's right to a fair trial.]
Again, cl 8, referred to in the second instalment of this series of blog entries, states:
8 General exclusion
In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will---
(a) have an unfairly prejudicial effect on the outcome of the proceeding; or
(b) needlessly prolong the proceeding.
This does not explain the point of view from which fairness is to be assessed. It is fairness to the accused that has primary importance.
[Update: the Evidence Act 2006, has a revised form of cl 8, adding the following as s 8(2): "In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence." This should, together with the reference to the Bill of Rights in s 6, above, incorporate the requirement that the trial must be fair to the accused into the weighing exercise, making it the overriding requirement.]
It is not clear that the inherent jurisdiction of the court to act so as to prevent an abuse of its process will come to the rescue of the primary elements:
11 Inherent powers not affected
(1) The powers inherent in a court to regulate and prevent abuse of its procedure are not affected by this Act except to the extent that this Act provides otherwise.
(2) Despite subsection (1) a court must have regard to the purpose and the principles set out in sections 6 to 8 when exercising inherent powers to regulate and prevent abuse of its procedure.
[Update: the Evidence Act 2006 replaces subclause (1) of cl 11 with the following, as s 11(1):
"(1) The inherent and implied powers of a court are not affected by this Act,
except to the extent that this Act provides otherwise."]
It is unsatisfactory for the fundamental elements to be obscured by this vagueness.
The relationship between the legislation and the common law powers to prevent abuse of process are clearer in the Australian uniform Evidence Act 1995 (C’th), s 11 of which provides:
General powers of a court
(1) The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment.
(2) In particular, the powers of a court with respect to abuse of process in a proceeding are not affected.
The Australian legislation, however, is also unsatisfactory in that its general provisions fail to distinguish fairness to the accused from fairness to the parties, and they give overarching importance to the flawed weighing of probative value against unfairly prejudicial effect (see the second blog entry in the present series).
It seems that the ideal legislative model has yet to be constructed. This is hardly surprising in this rapidly developing area of the common law. Many of the leading cases have been decided since the current project to revise our evidence law began.
Wednesday, May 25, 2005
Tuesday, May 24, 2005
Evidence Bill (3)
The third of the evidence topics requiring the exercise of judicial judgment is the method by which judges act to ensure the fairness of the trial for the accused. It is beyond dispute that the accused has the right to a fair trial, and that this right is essential, fundamental and absolute.
The need for fairness at trial may require the judge to give warnings to the jury about matters such as lies allegedly told by the accused; the risks associated with particular categories of witnesses such as accomplices, children, or people with impairments that may affect the reliability of their evidence; identification evidence; and delayed complaints about sexual matters.
I will consider here how the Bill addresses the subject of judicial warnings about the significance of lies allegedly told by the accused. The relevant provision is:
120 Judicial warnings about lies
(1) This section applies to evidence offered in a criminal proceeding that states a defendant has lied either before or during the proceeding.
(2) If evidence of a defendant's lie is offered in a criminal proceeding tried with a jury, the Judge is not obliged to give a specific direction as to what inference the jury may draw from that evidence.
(3) Despite subsection (2), if, in a criminal proceeding tried with a jury, the Judge is of the opinion that the jury may place undue weight on evidence of a defendant's lie, the Judge must warn the jury that---
(a) the jury must be satisfied before using the evidence that the defendant did lie; and
(b) people lie for various reasons; and
(c) the jury should not necessarily conclude that, just because the defendant lied, the defendant is guilty of the offence for which the defendant is being tried.
(4) In a criminal proceeding tried without a jury, the Judge must have regard to the matters set out in paragraphs (a) to (c) of subsection (3) before placing any weight on evidence of a defendant's lie.
The Bill departs from the Law Commission’s proposal in its Evidence Code, cl 110(3), by the omission of the requirement for a warning if the defence asks that one be given.
Potential shortcomings of these proposals are:
The need for fairness at trial may require the judge to give warnings to the jury about matters such as lies allegedly told by the accused; the risks associated with particular categories of witnesses such as accomplices, children, or people with impairments that may affect the reliability of their evidence; identification evidence; and delayed complaints about sexual matters.
I will consider here how the Bill addresses the subject of judicial warnings about the significance of lies allegedly told by the accused. The relevant provision is:
120 Judicial warnings about lies
(1) This section applies to evidence offered in a criminal proceeding that states a defendant has lied either before or during the proceeding.
(2) If evidence of a defendant's lie is offered in a criminal proceeding tried with a jury, the Judge is not obliged to give a specific direction as to what inference the jury may draw from that evidence.
(3) Despite subsection (2), if, in a criminal proceeding tried with a jury, the Judge is of the opinion that the jury may place undue weight on evidence of a defendant's lie, the Judge must warn the jury that---
(a) the jury must be satisfied before using the evidence that the defendant did lie; and
(b) people lie for various reasons; and
(c) the jury should not necessarily conclude that, just because the defendant lied, the defendant is guilty of the offence for which the defendant is being tried.
(4) In a criminal proceeding tried without a jury, the Judge must have regard to the matters set out in paragraphs (a) to (c) of subsection (3) before placing any weight on evidence of a defendant's lie.
The Bill departs from the Law Commission’s proposal in its Evidence Code, cl 110(3), by the omission of the requirement for a warning if the defence asks that one be given.
Potential shortcomings of these proposals are:
- Omission of a requirement for the judge to consult with counsel on the need for a lies direction before summing up. [Update: the Evidence Act 2006 revises this by inserting in subsection 3 the requirement that the Judge must give a lies warning if the defence so requests.]
- Omission of a requirement to direct the jury to ignore the alleged dishonesty unless they (ie jurors individually, not the jury collectively) are sure that the defendant lied. Clause 120(3)(a) does not indicate what the jury should do if they are not satisfied the defendant lied.
- Omission of a direction that the jury must be satisfied to the standard of beyond reasonable doubt that the defendant lied before they can take the dishonesty into account.
- Omission of the need to give illustrations of why people might lie for reasons that do not support the prosecution case: to bolster a true defence, to protect somebody else, to conceal some other conduct which is not the subject of the proceedings, panic, distress, confusion.
- Omission of a distinction between dishonesty that is only relevant on the issue of the defendant’s credibility, and dishonesty that lends support to the prosecution case.
- Omission of a direction that the dishonesty can only support the prosecution case if the jury is sure beyond reasonable doubt that there is no innocent reason for it.
I have drawn these "shortcomings" by comparison with the model directions issues by the Judicial Studies Board in the United Kingdom.
No one can deny that the topic of lies directions has been troublesome for judges. There is a risk that efforts to simplify will result in departure from what is appropriate.
One can see how difficult the subject is by looking at Zoneff v R (2000) 112 A Crim R 114 (HCA), where 4 judges held that the giving of a lies direction had been a substantial miscarriage of justice because it gave unfair emphasis to the alleged lies, while the fifth judge, dissenting, held that a lies direction should indeed have been given, but that it had been given wrongly here, although that error did not amount to a substantial miscarriage of justice.
My view is that Cl 120 of the Bill, if indeed the topic of lies is to be included, should be revised to conform to the practice in the United Kingdom, although a further point emerges: the UK legislation, the Criminal Justice Act 2003, does not deal with how juries should be directed about lies. The search for perfection continues, with the task of announcing the current best practice being that of the Judicial Studies Board. It is not yet the time to set this law in legislation. The Australian uniform Evidence Act 1995 (Cth) also omits specifying the contents of lies directions.
Treating correctly evidence that alleges the accused told lies can be vital to the fairness of trials. What is appropriate will vary with the circumstances of each case, and the matter may best be left for the judge to deal with as part of the task of ensuring that the trial is fair to the accused.
Monday, May 23, 2005
Evidence Bill (2)
The second area of admissibility requiring exercise of judgment has been traditionally formulated as the balancing of probative value against the risk of illegitimate prejudice to the accused that would arise as a result of admission of the challenged evidence. This formula is reflected in clause 8 of the Bill:
8 General exclusion
In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will---
(a) have an unfairly prejudicial effect on the outcome of the
proceeding; or
(b) needlessly prolong the proceeding.
The meanings of probative value and prejudicial effect are indicated in clause 39, which deals with a topic commonly the subject of such balancing, called at common law similar fact evidence:
39 Propensity evidence offered by prosecution about defendants
(1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
(2) When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.
(3) When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
(a) the frequency with which the acts, omissions, events, or
circumstances which are the subject of the evidence have occurred:
(b) the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(c) the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(d) the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f) the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.
(4) When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,---
(a) whether the evidence is likely to unfairly predispose the
fact-finder against the defendant; and
(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.
The essence of illegitimately prejudicial evidence, as seen from cl 39(4) above, is that it deprives the accused of a fair trial, by causing bias or improper use of evidence.
The balancing of probative value against the risk of illegitimate prejudice has caused great difficulty in practice, because it is a fallacy to say that probative value is something that can be put in opposition to the accused’s right to a fair trial. These are not things that can be weighed against each other.
Useful guidance can be obtained from the recent evidence law reforms in England. Whereas the Law Commission of England and Wales, in its Report of October 2001, "Evidence of Bad Character in Criminal Proceedings", proposed a draft Bill containing , in clause 8, the weighing of risk of prejudice against probative value, that proposal was not enacted. The Criminal Justice Act 2003[UK], s 101(3), contains the revised law:
"The court must not admit evidence … if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."
This avoids the fallacious weighing, although it may be accused of vagueness as to how much unfairness is sufficiently adverse to require exclusion of the evidence. That point will be considered in the next blog entry in this series on the Evidence Bill.
8 General exclusion
In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will---
(a) have an unfairly prejudicial effect on the outcome of the
proceeding; or
(b) needlessly prolong the proceeding.
The meanings of probative value and prejudicial effect are indicated in clause 39, which deals with a topic commonly the subject of such balancing, called at common law similar fact evidence:
39 Propensity evidence offered by prosecution about defendants
(1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
(2) When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.
(3) When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
(a) the frequency with which the acts, omissions, events, or
circumstances which are the subject of the evidence have occurred:
(b) the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(c) the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(d) the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f) the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.
(4) When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,---
(a) whether the evidence is likely to unfairly predispose the
fact-finder against the defendant; and
(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.
The essence of illegitimately prejudicial evidence, as seen from cl 39(4) above, is that it deprives the accused of a fair trial, by causing bias or improper use of evidence.
The balancing of probative value against the risk of illegitimate prejudice has caused great difficulty in practice, because it is a fallacy to say that probative value is something that can be put in opposition to the accused’s right to a fair trial. These are not things that can be weighed against each other.
Useful guidance can be obtained from the recent evidence law reforms in England. Whereas the Law Commission of England and Wales, in its Report of October 2001, "Evidence of Bad Character in Criminal Proceedings", proposed a draft Bill containing , in clause 8, the weighing of risk of prejudice against probative value, that proposal was not enacted. The Criminal Justice Act 2003[UK], s 101(3), contains the revised law:
"The court must not admit evidence … if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."
This avoids the fallacious weighing, although it may be accused of vagueness as to how much unfairness is sufficiently adverse to require exclusion of the evidence. That point will be considered in the next blog entry in this series on the Evidence Bill.
Saturday, May 21, 2005
Evidence Bill (1)
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.
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.
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).
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