Appeals against conviction require consideration of whether there has been a substantial miscarriage of justice. This, in turn, can raise two questions: whether the trial was fair, and, whether the accused was wrongly deprived of a real chance of an acquittal. These are independent questions. The latter is often (and wrongly) taken to be an opportunity for an exacting judicial analysis of the evidence, notwithstanding the oft-repeated claim that it is not for the appellate judges to substitute their verdict for that of the jury. R v Bain [2004] 1 NZLR 638, (2003) 20 CRNZ 637 (CA) is a prime example of applying the trained judicial mind to the analysis of the evidence, rather than considering how the jury might have reacted to proposed new evidence.
An interesting observation on the fact that jurors may not apply linear logic to their task of coming to a verdict was recently made by Kirby J (happily siding with the majority) in R v Stevens [2005] HCA 65 (21 October 2005), para 82:
"One assumes that the human mind, and even more the collective mind of a jury, operates in serious decision-making, rationally and reasonably. But the mind does not necessarily act according to linear paths of strict logic. At any time in a criminal trial, several issues are in play. As Callinan J correctly points out [at para 158: "Nor do I think it is an answer in this case to say that one defence, or a direction in respect of it, subsumed another to the extent that the latter needed not to be mentioned or put to the jury in appropriate terms. Different people may have different perceptions of facts. Certain words, or language, or expressions of concepts, may provoke different responses in different people"], different people, especially a group of people, may have different perceptions of facts and of words, expressions and language (such as on being told of the substance of the Code's provisions on accident). The appellant, who was facing, if convicted, the heaviest penalty known to the law, was entitled to have the chance of a favourable response of the jury to the exemption provided by the Code from criminal responsibility for accident, properly explained. The trial judge ought not to have deprived the appellant of that chance."
An example of acute judicial analysis of the trial evidence, this time with a view to discovering whether the accused had been deprived of the right to adequate facilities to prepare a defence, is the judgment of Thomas J in R v Griffin [2001] 3 NZLR 577, (2001) 19 CRNZ 47 (CA). He concluded that on the evidence, lack of opportunity to have a defence expert examine the complainant did not adversely affect the result, and therefore there was no unfairness. That was, with respect, an incorrect melding of the two questions set out above. He may well have been correct to conclude that there had been no loss of a real chance of an acquittal, on the evidence adduced at trial. But, if the trial was unfair there should have been (as the majority held) a substantial miscarriage of justice. Thomas J treated procedural fairness as irrelevant if the verdict appeared to be correct. He allowed pragmatism (or, as he calls it, substantialism) to override the formal requirements of a fair trial. The majority of the Privy Council did the same in R v Howse [2005] UKPC 31 (19 July 2005), blogged here on 23.7.05. In Griffin, the majority held that had it could not be said that, had the error not occurred, the jury would inevitably have convicted, and a new trial was ordered. They did, however, recognise that this consideration of the second question was probably unnecessary, as they had found that the trial had been unfair. They said, para 40, that it was difficult to imagine a case where there would not be a substantial miscarriage of justice after a breach of the relevant right.
Tuesday, October 25, 2005
Tuesday, October 11, 2005
Helpful Acts?
Legislation can make the law absurdly complicated. In Tabe v R [2005] HCA 59 (6 October 2005) Australia’s senior judges split 3 – 2 on an issue that should have been simple. When a person is charged with attempting to get possession of a drug, does the prosecution have to prove that he believed that he could do so?
A refreshingly simple person would think the answer obvious. Why would someone try to get something unless he thought he could? Sad to say, in Queensland things are not so straightforward. That State’s Criminal Code, s 24, provides:
"(1) A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.
(2) The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject."
Where this applies, an innocent belief will be a defence if it goes to an essential ingredient of the offence. So, if it is reasonably possible that you thought the thing you were trying to get was some substance you were entitled to have, you would not be guilty of unlawfully attempting to obtain a drug. Fair enough.
Unfortunately, the Drugs Misuse Act 1986 (Q), s 57, makes the position obscure. It provides, in para (d):
"(d) the operation of the Criminal Code, section 24 is excluded unless that person shows an honest and reasonable belief in the existence of any state of things material to the charge."
Seems redundant, you might think. However, one of the cherished ideas in what is called "statutory interpretation" (as if statutes were written in foreign languages) is that the words of an Act are to be given effect because the legislature would not have intended redundancy.
So, the next logical step seems to be to ask, what are the things that s 57(d) calls material to the charge? Section 57(d) appears to be saying that honest and reasonable mistakes about these are matters for the person charged to prove. This would give it an effect beyond that of s 24 of the Code, which may not place a burden of proof on the defendant. So the issue would then be, what does the prosecution have to prove, before the burden shifts to the defence if a mistake is being relied on?
Back to attempting to get possession of a drug. The physical ingredients of the offence were not critical in Tabe. It was not argued, on the facts of the case, that the defendant had not done acts sufficiently proximate to the completion of the offence to amount to an attempt to commit it. It was the mental elements of the offence that were the focus of the dispute.
On first principles, putting aside the judicial reasoning in Tabe, one would have thought that, if belief that the thing is a drug (the essence of the mistake which was, according to s 57(d) for the defence to prove) is not something that the prosecution has to prove, all that the prosecution must prove to establish a prima facie case is the defendant’s intention to perform the acts that he did. This, indeed, is what the majority held (Gleeson CJ in a separate judgment, and Callinan and Heydon JJ in a joint judgment).
The minority (McHugh and Hayne JJ, in separate judgments) saw the issue in two ways. McHugh J focused on the requirement of attempt that the defendant must have had an intention to commit an offence, so that an intention to obtain a drug (and hence a belief that the thing was a drug) was a matter for the prosecution to prove to establish a prima facie case. He also agreed with Hayne J’s approach, which reached the same conclusion by an analysis of the ingredients of possession.
I should point out, here, that none of the judges in Tabe used the expression "prima facie case" except (twice) where it appeared in quotations from another case. It is useful to remember the fundamentals of criminal law. Where an attemptis alleged, it is inevitable, if the prosecution case is to get off the ground, that evidence of belief in the existence of the thing sought, will have to be aduced. In Tabe, (I simplify the facts a little), the defendant thought that an envelope he was collecting contained a drug. It did not, because it had been intercepted by the police and its contents had been replaced with an innocuous powder. Hence the charge was attempt, rather than the full offence of possessing the drug. The evidence in the case included these background matters, and of course established a prima facie intention by the defendant to obtain a drug. Without that evidence, the prosecution could have hardly established a prima facie case by proving that the defendant went to collect an envelope. We would all be on trial, if that were sufficient.
Pragmatism must have motivated the Chief Justice of Australia to deliver the rather ham-fisted justification for his approach (para 20), namely that because most people charged with this claim that their intentions were innocent, that should be a matter for them to prove.
Legislation that speaks briefly can cause problems. Parliament need not try to emulate the Ten Commandments, admirable at least for their brevity. (Horace: "brevis essere laboro, obscurus fio." I try to be brief, but I become obscure.) Getting down to detail, in the tradition of Leviticus, can be appropriate. However this too can be taken too far, as our Sentencing Act 2002 illustrates; it reads like a Dummies guide. But, I digress. It would be appropriate for legislators to remember Cicero’s remark (De Natura Deorum, iii, iv): "The clarity of the case is impaired by arguments."
A refreshingly simple person would think the answer obvious. Why would someone try to get something unless he thought he could? Sad to say, in Queensland things are not so straightforward. That State’s Criminal Code, s 24, provides:
"(1) A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.
(2) The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject."
Where this applies, an innocent belief will be a defence if it goes to an essential ingredient of the offence. So, if it is reasonably possible that you thought the thing you were trying to get was some substance you were entitled to have, you would not be guilty of unlawfully attempting to obtain a drug. Fair enough.
Unfortunately, the Drugs Misuse Act 1986 (Q), s 57, makes the position obscure. It provides, in para (d):
"(d) the operation of the Criminal Code, section 24 is excluded unless that person shows an honest and reasonable belief in the existence of any state of things material to the charge."
Seems redundant, you might think. However, one of the cherished ideas in what is called "statutory interpretation" (as if statutes were written in foreign languages) is that the words of an Act are to be given effect because the legislature would not have intended redundancy.
So, the next logical step seems to be to ask, what are the things that s 57(d) calls material to the charge? Section 57(d) appears to be saying that honest and reasonable mistakes about these are matters for the person charged to prove. This would give it an effect beyond that of s 24 of the Code, which may not place a burden of proof on the defendant. So the issue would then be, what does the prosecution have to prove, before the burden shifts to the defence if a mistake is being relied on?
Back to attempting to get possession of a drug. The physical ingredients of the offence were not critical in Tabe. It was not argued, on the facts of the case, that the defendant had not done acts sufficiently proximate to the completion of the offence to amount to an attempt to commit it. It was the mental elements of the offence that were the focus of the dispute.
On first principles, putting aside the judicial reasoning in Tabe, one would have thought that, if belief that the thing is a drug (the essence of the mistake which was, according to s 57(d) for the defence to prove) is not something that the prosecution has to prove, all that the prosecution must prove to establish a prima facie case is the defendant’s intention to perform the acts that he did. This, indeed, is what the majority held (Gleeson CJ in a separate judgment, and Callinan and Heydon JJ in a joint judgment).
The minority (McHugh and Hayne JJ, in separate judgments) saw the issue in two ways. McHugh J focused on the requirement of attempt that the defendant must have had an intention to commit an offence, so that an intention to obtain a drug (and hence a belief that the thing was a drug) was a matter for the prosecution to prove to establish a prima facie case. He also agreed with Hayne J’s approach, which reached the same conclusion by an analysis of the ingredients of possession.
I should point out, here, that none of the judges in Tabe used the expression "prima facie case" except (twice) where it appeared in quotations from another case. It is useful to remember the fundamentals of criminal law. Where an attemptis alleged, it is inevitable, if the prosecution case is to get off the ground, that evidence of belief in the existence of the thing sought, will have to be aduced. In Tabe, (I simplify the facts a little), the defendant thought that an envelope he was collecting contained a drug. It did not, because it had been intercepted by the police and its contents had been replaced with an innocuous powder. Hence the charge was attempt, rather than the full offence of possessing the drug. The evidence in the case included these background matters, and of course established a prima facie intention by the defendant to obtain a drug. Without that evidence, the prosecution could have hardly established a prima facie case by proving that the defendant went to collect an envelope. We would all be on trial, if that were sufficient.
Pragmatism must have motivated the Chief Justice of Australia to deliver the rather ham-fisted justification for his approach (para 20), namely that because most people charged with this claim that their intentions were innocent, that should be a matter for them to prove.
Legislation that speaks briefly can cause problems. Parliament need not try to emulate the Ten Commandments, admirable at least for their brevity. (Horace: "brevis essere laboro, obscurus fio." I try to be brief, but I become obscure.) Getting down to detail, in the tradition of Leviticus, can be appropriate. However this too can be taken too far, as our Sentencing Act 2002 illustrates; it reads like a Dummies guide. But, I digress. It would be appropriate for legislators to remember Cicero’s remark (De Natura Deorum, iii, iv): "The clarity of the case is impaired by arguments."
Wednesday, October 05, 2005
Silence
Broad common law rights that have been included in the Bill of Rights are not limited to the extent of their definition in the Bill. For example, s 23(4) of NZBORA provides that everyone who is arrested or detained under any enactment for any offence or suspected offence has the right to refrain from making any statement. But if the person questioned has not been detained or arrested, the right to silence that exists at common law continues to apply.
In R v Turcotte [2005] SCC 50 (30 September 2005) the Supreme Court of Canada referred to the common law right to silence (para 41):
"41 Under the traditional common law rules, absent statutory compulsion, everyone has the right to be silent in the face of police questioning. This right to refuse to provide information or answer inquiries finds cogent and defining expression in Rothman v. The Queen, [1981] 1 S.C.R. 640, per Lamer J.:
"In Canada the right of a suspect not to say anything to the police ... is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do otherwise by law. It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise. [Footnotes omitted; p. 683]""
Silence, however, can, albeit only rarely, be indicative of a consciousness of guilt. Other types of conduct that can indicate a consciousness of guilt are flight, resisting arrest, breach of bail, concealment (lying, giving a false name, using a disguise, disposing of evidence). Silence, however, is special insofar as the person has the right to be silent, and this right would be rendered illusory if it could be used to support an inference of guilt.
This was recognised in Turcotte, where examples of the limited circumstances in which the silence of an accused may be rendered relevant and probative were cited (para 49 – 50): where the defence claim the accused co-operated with the police, where the defence alleges that the police investigation was flawed, and where alibi is not disclosed before trial. Silence may also be relevant to credibility (not as proof of guilt) where two accuseds jointly tried blame each other for the offending, and one gives evidence at trial but had not made a statement to the police (para 48).
The right to silence is not waived merely because the suspect answers some questions (para 52). The fact that the accused was silent may be an inextricable part of the narrative, but, where it is, the judge must tell the jury that it is not evidence of guilt. Failure to do so can result in a new trial being ordered, as it was in Turcotte.
In R v Turcotte [2005] SCC 50 (30 September 2005) the Supreme Court of Canada referred to the common law right to silence (para 41):
"41 Under the traditional common law rules, absent statutory compulsion, everyone has the right to be silent in the face of police questioning. This right to refuse to provide information or answer inquiries finds cogent and defining expression in Rothman v. The Queen, [1981] 1 S.C.R. 640, per Lamer J.:
"In Canada the right of a suspect not to say anything to the police ... is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do otherwise by law. It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise. [Footnotes omitted; p. 683]""
Silence, however, can, albeit only rarely, be indicative of a consciousness of guilt. Other types of conduct that can indicate a consciousness of guilt are flight, resisting arrest, breach of bail, concealment (lying, giving a false name, using a disguise, disposing of evidence). Silence, however, is special insofar as the person has the right to be silent, and this right would be rendered illusory if it could be used to support an inference of guilt.
This was recognised in Turcotte, where examples of the limited circumstances in which the silence of an accused may be rendered relevant and probative were cited (para 49 – 50): where the defence claim the accused co-operated with the police, where the defence alleges that the police investigation was flawed, and where alibi is not disclosed before trial. Silence may also be relevant to credibility (not as proof of guilt) where two accuseds jointly tried blame each other for the offending, and one gives evidence at trial but had not made a statement to the police (para 48).
The right to silence is not waived merely because the suspect answers some questions (para 52). The fact that the accused was silent may be an inextricable part of the narrative, but, where it is, the judge must tell the jury that it is not evidence of guilt. Failure to do so can result in a new trial being ordered, as it was in Turcotte.
Monday, September 19, 2005
Reverse onus and the strength of rights
In R v Phillips [1991] 3 NZLR 175 (CA) the New Zealand Court of Appeal missed the opportunity to lead the way in upholding human rights. In R v Lambert [2002] 2 AC 545 (HL) the Law Lords seized the opportunity that the New Zealand court had missed. Now, as a result of R v Hansen 29/8/05, CA128/05, an opportunity presents itself to the Supreme Court to catch up. The issues in question were specifically left open by the Court in Siloata v R [2005] 2 NZLR 145, (2004) 21 CRNZ 426 (SC).
There are two issues. The more general is how easily legislation may override the Bill of Rights. The more specific issue is whether the presumption of innocence requires that a statutory reverse burden on the accused to establish a matter carries the standard of proof on the balance of probabilities, or whether it is just the standard of raising a reasonable doubt, when the legislation is silent about that.
Overriding the Bill of Rights.
The New Zealand Bill of Rights Act 1990 ("NZBORA") recognises that it may be overridden by statute, but offers some resistance to that in s 6:
"6. Interpretation consistent with Bill of Rights to be preferred — Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning."
Note the phrases "can be given", and "shall be preferred to any other meaning". These suggest the active "giving" of a meaning, as opposed to passively accepting an apparent meaning, and the strong motivation to give such a meaning implicit in the mandatory "shall be preferred". Moreover, the mandated meaning shall be preferred "to any other meaning", which indicates an intention to override the ordinary and natural meaning (the one usually preferred in statutory interpretation) where necessary.
The relevant United Kingdom legislation, s 3 of the Human Rights Act 1998 [UK] has a similar role:
"3.—(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
One would be hard pressed to see any difference in meaning between these two sections. They are expressions of the same idea. Section 3 has been interpreted as requiring a strained interpretation of statutory language if that is necessary to prevent conflict with rights, even if doing so requires a departure from the legislative purpose: Ghaidan v Godin-Mendoza [2004] UKHL 30 (HL).
Strange to say, there has been some effort to draw a distinction between s 6 and s 3. In R v Kebeline [2000] 2 AC 326 (HL), Lord Cooke (who had delivered the judgment in Phillips) said:
"… section 6 of the New Zealand Bill of Rights Act 1990 is in terms different from section 3(1) of the Human Rights Act 1998. The United Kingdom subsection, read as a whole, conveys, I think, a rather more powerful message."
Lord Steyn has also claimed to be able to see a difference: R v A [2002] 1 AC 45; [2001] 3 All ER 1 (HL) at para 44:
"The draftsman of the [Human Rights] Act had before him the slightly weaker model in section 6 of the New Zealand Bill of Rights Act 1990 but preferred stronger language. Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights."
Well, does s 6 really limit itself to "reasonable" interpretations? It doesn’t say "wherever an enactment can reasonably be given …".
Reverse onus and the presumption of innocence
Section 25(c) of NZBORA provides that everyone who is charged with an offence has, as a minimum right, the right to be presumed innocent until proved guilty according to law. Of course the presumption of innocence is an ancient common law right, and its inclusion in the Bill of Rights gives it (if this is possible) added status.
In Phillips the question was whether s 25(c) of NZBORA requires a new interpretation of the reverse onus. Hitherto, when a statute provided that an accused shall prove something, that was interpreted to mean prove to the standard of the balance of probabilities. The submission in Phillips was that this should now mean prove by raising a reasonable doubt.
The context of Phillips was s 6(6) of the Misuse of Drugs Act 1975, which applies when an accused is proved beyond reasonable doubt to have had possession of a quantity of drug equal to or more than an amount specified in the Act. The effect is that in such circumstances the accused "is presumed until the contrary is proved to be in possession of a controlled drug for [the purpose of supplying it]." Thus the issue came down to whether "until the contrary is proved" in this context can mean "until a reasonable doubt is raised".
In Phillips it was held that that meaning was not open, whereas in Lambert it was held, in relation to reverse-onus legislation, that it was. In the recent case, Hansen, Phillips was followed.
Hansen is based on two points: the claimed difference between s 6 of NZBORA and s 3 of the Human Rights Act 1998[UK], and the idea that raising an issue is not "proof", so that the meaning of the reverse onus provision advocated for the accused (appellant) was not open. It must be said that the Court of Appeal was correct to follow its own earlier decision in Phillips, and to leave an application for leave to appeal to be made by the accused. This, indeed, is underway.
There are two issues. The more general is how easily legislation may override the Bill of Rights. The more specific issue is whether the presumption of innocence requires that a statutory reverse burden on the accused to establish a matter carries the standard of proof on the balance of probabilities, or whether it is just the standard of raising a reasonable doubt, when the legislation is silent about that.
Overriding the Bill of Rights.
The New Zealand Bill of Rights Act 1990 ("NZBORA") recognises that it may be overridden by statute, but offers some resistance to that in s 6:
"6. Interpretation consistent with Bill of Rights to be preferred — Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning."
Note the phrases "can be given", and "shall be preferred to any other meaning". These suggest the active "giving" of a meaning, as opposed to passively accepting an apparent meaning, and the strong motivation to give such a meaning implicit in the mandatory "shall be preferred". Moreover, the mandated meaning shall be preferred "to any other meaning", which indicates an intention to override the ordinary and natural meaning (the one usually preferred in statutory interpretation) where necessary.
The relevant United Kingdom legislation, s 3 of the Human Rights Act 1998 [UK] has a similar role:
"3.—(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
One would be hard pressed to see any difference in meaning between these two sections. They are expressions of the same idea. Section 3 has been interpreted as requiring a strained interpretation of statutory language if that is necessary to prevent conflict with rights, even if doing so requires a departure from the legislative purpose: Ghaidan v Godin-Mendoza [2004] UKHL 30 (HL).
Strange to say, there has been some effort to draw a distinction between s 6 and s 3. In R v Kebeline [2000] 2 AC 326 (HL), Lord Cooke (who had delivered the judgment in Phillips) said:
"… section 6 of the New Zealand Bill of Rights Act 1990 is in terms different from section 3(1) of the Human Rights Act 1998. The United Kingdom subsection, read as a whole, conveys, I think, a rather more powerful message."
Lord Steyn has also claimed to be able to see a difference: R v A [2002] 1 AC 45; [2001] 3 All ER 1 (HL) at para 44:
"The draftsman of the [Human Rights] Act had before him the slightly weaker model in section 6 of the New Zealand Bill of Rights Act 1990 but preferred stronger language. Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights."
Well, does s 6 really limit itself to "reasonable" interpretations? It doesn’t say "wherever an enactment can reasonably be given …".
Reverse onus and the presumption of innocence
Section 25(c) of NZBORA provides that everyone who is charged with an offence has, as a minimum right, the right to be presumed innocent until proved guilty according to law. Of course the presumption of innocence is an ancient common law right, and its inclusion in the Bill of Rights gives it (if this is possible) added status.
In Phillips the question was whether s 25(c) of NZBORA requires a new interpretation of the reverse onus. Hitherto, when a statute provided that an accused shall prove something, that was interpreted to mean prove to the standard of the balance of probabilities. The submission in Phillips was that this should now mean prove by raising a reasonable doubt.
The context of Phillips was s 6(6) of the Misuse of Drugs Act 1975, which applies when an accused is proved beyond reasonable doubt to have had possession of a quantity of drug equal to or more than an amount specified in the Act. The effect is that in such circumstances the accused "is presumed until the contrary is proved to be in possession of a controlled drug for [the purpose of supplying it]." Thus the issue came down to whether "until the contrary is proved" in this context can mean "until a reasonable doubt is raised".
In Phillips it was held that that meaning was not open, whereas in Lambert it was held, in relation to reverse-onus legislation, that it was. In the recent case, Hansen, Phillips was followed.
Hansen is based on two points: the claimed difference between s 6 of NZBORA and s 3 of the Human Rights Act 1998[UK], and the idea that raising an issue is not "proof", so that the meaning of the reverse onus provision advocated for the accused (appellant) was not open. It must be said that the Court of Appeal was correct to follow its own earlier decision in Phillips, and to leave an application for leave to appeal to be made by the accused. This, indeed, is underway.
Tuesday, September 13, 2005
Admissibility of pre-trial denials
For no good reason, there has recently been some hesitation about whether the exculpatory parts of a statement that also has incriminating content, made by an accused to the police before trial, are admissible as proof of their truth. In Mule v R [2005] HCA 49 (8 September 2005) the law was left unchanged: the exculpatory parts may be relied on by the defence at trial as evidence of their truth. The High Court of Australia noted that this was the established law in Australia and England (citing the House of Lords decision R v Aziz [1996] AC 41, which, however, is a little controversial, insofar as it suggests that an accused cannot insist on production of his mixed statement).
We might as well take advantage of the current dearth of interesting cases (it is the holiday season in Europe) to dwell upon this. Prior consistent statements are inadmissible, as hearsay (R v Sturgeon (2004) 21 CRNZ 345 (CA)), so when an accused gives evidence, the fact that he said the same thing outside court is not proof of the truth of what was asserted. Even the fact that he said it is inadmissible, unless recent fabrication is alleged, in which case it is admissible as proof of consistency, and not as proof of the fact asserted. This rather subtle distinction is, of course, a source of some confusion.
So, when a suspect is interviewed by the police and he makes a fully exculpatory statement, that is hearsay and the defence cannot insist that the prosecution adduce it in evidence. Usually, however, statements to the police do include admissions, even if not complete admissions of the offence alleged. They may admit certain things but deny an ingredient that the prosecution have to prove to establish guilt. These are called mixed statements. As a matter of fairness, the law has allowed them to be admitted as proof of the truth of both their inculpatory and their exculpatory parts: R v Wilkie 27/4/05, CA6/05; R v Poa 26/7/01, CA48/01.
Obviously, a line has to be drawn between statements that are genuinely mixed, and those that are contrived to be exculpatory in the hope that the prosecution will have to adduce them in evidence: R v Reihana 22/3/01, CA350/00.
When an accused gives evidence at trial, it is customary for the judge to give the jury what is called a tripartite direction: (1) they may accept the accused’s evidence and find him not guilty; (2) they may think that the accused’s evidence cerates a reasonable doubt and find him not guilty; (3) they may reject the accused’s evidence, in which case they must consider the evidence in the case that they do accept and determine whether it proves guilt beyond reasonable doubt: R v McI [1998] 1 NZLR 696 (CA). Such a direction is not required for a pre-trial statement: R v I 16/10/02, CA255/02, but it can be given: Reihana, above. Where the accused has made a pre-trial statement but does not give evidence at trial, the judge may comment on the reduced weight that the statement may have: R v Green 18/2/92, CA119/92.
With the law in this mildly complex, but settled, state, it is hardly surprising that the Supreme Court has recently declined to accept an appeal on the question of the admissibility of the exculpatory parts of a pre-trial statement.
We might as well take advantage of the current dearth of interesting cases (it is the holiday season in Europe) to dwell upon this. Prior consistent statements are inadmissible, as hearsay (R v Sturgeon (2004) 21 CRNZ 345 (CA)), so when an accused gives evidence, the fact that he said the same thing outside court is not proof of the truth of what was asserted. Even the fact that he said it is inadmissible, unless recent fabrication is alleged, in which case it is admissible as proof of consistency, and not as proof of the fact asserted. This rather subtle distinction is, of course, a source of some confusion.
So, when a suspect is interviewed by the police and he makes a fully exculpatory statement, that is hearsay and the defence cannot insist that the prosecution adduce it in evidence. Usually, however, statements to the police do include admissions, even if not complete admissions of the offence alleged. They may admit certain things but deny an ingredient that the prosecution have to prove to establish guilt. These are called mixed statements. As a matter of fairness, the law has allowed them to be admitted as proof of the truth of both their inculpatory and their exculpatory parts: R v Wilkie 27/4/05, CA6/05; R v Poa 26/7/01, CA48/01.
Obviously, a line has to be drawn between statements that are genuinely mixed, and those that are contrived to be exculpatory in the hope that the prosecution will have to adduce them in evidence: R v Reihana 22/3/01, CA350/00.
When an accused gives evidence at trial, it is customary for the judge to give the jury what is called a tripartite direction: (1) they may accept the accused’s evidence and find him not guilty; (2) they may think that the accused’s evidence cerates a reasonable doubt and find him not guilty; (3) they may reject the accused’s evidence, in which case they must consider the evidence in the case that they do accept and determine whether it proves guilt beyond reasonable doubt: R v McI [1998] 1 NZLR 696 (CA). Such a direction is not required for a pre-trial statement: R v I 16/10/02, CA255/02, but it can be given: Reihana, above. Where the accused has made a pre-trial statement but does not give evidence at trial, the judge may comment on the reduced weight that the statement may have: R v Green 18/2/92, CA119/92.
With the law in this mildly complex, but settled, state, it is hardly surprising that the Supreme Court has recently declined to accept an appeal on the question of the admissibility of the exculpatory parts of a pre-trial statement.
Friday, August 26, 2005
The proviso
Vexed issues concerning the application of s 385(1) of the Crimes Act 1961 are on the way to being resolved as a result of the Supreme Court’s decision in Sungsuwan v R [2005] NZSC 57 (25 August 2005).
Issues have concerned the power of appellate courts to disallow appeals against conviction if, notwithstanding that there had been, for example (s 385(1)(c)) a miscarriage of justice at trial, that miscarriage was not "substantial": the proviso to s 385(1). When is a miscarriage of justice "substantial"?
In Sungsuwan the appeal was based on alleged misconduct of counsel at the trial, in failing to adduce evidence that, it was claimed, would have supported the defence, from two prosecution witnesses. The Supreme Court unanimously held that the verdict was safe and that there was no miscarriage of justice in the conviction. Three judgments were delivered: individually by Elias CJ and Tipping J, and jointly by Gault, Keith and Blanchard JJ (delivered by Gault J).
Elias CJ held that it would be unlikely to be appropriate to apply the proviso where a miscarriage of justice in terms of s 385(1)(c) is made out (para 6).
Tipping J was firmer on this point, holding that in cases coming within s 385(1)(a) and (c) the proviso was fused with the error, in the sense that there was no need to apply the proviso once the error had been established (para 113). At this point, Tipping J footnotes R v McI [1998] 1 NZLR 696 (CA), illustrating that there was a degree of "awkwardness" in the relation between para (c) and the proviso. In that case, delivering the majority judgment of himself and Keith J, Tipping J had not gone so far as to separate para (c) from the application of the proviso, and had held that before the proviso could be applied, the Court "must be sure that the jury would without doubt have convicted had the matters giving rise to the initial miscarriage of justice not been present" (p 712, line 22). There are two points here worth noting.
First, the attempt in McI to imagine what might have happened had the error not occurred, is not used as the test in Sangsuwan. Admittedly, it makes sense in some contexts, but it can be a distraction from the real point which is, given that the error had occurred, what was its effect? In Sungsuwan the question is put variously as "whether the verdict is unsafe" (Elias CJ at para 7), whether the error prejudiced the accused’s chance of an acquittal (Gault J at para 67), whether the error was likely to have had an effect on the trial outcome (Gault J at 69), whether there was a real risk that the error affected the trial outcome, whether there was a real concern for the safety of the verdict (Gault J at 70), whether the error prejudiced the accused’s prospects of acquittal or a lesser verdict (Tipping J at 101), whether the error led to a real risk of an unsafe verdict (Tipping J at 107, 108, 110, 111, 116), whether the accused was deprived of a reasonable possibility of a more favourable verdict (Tipping J at 115).
Second, the quoted passage from McI shows that there is a high standard on the prosecution to show that the miscarriage of justice was not "substantial", implying that tolerance of miscarriage of justice is low. This appears consistent with Sungsuwan, as the formulae referred to in the previous paragraph indicate. Tipping J, however, and perhaps unintentionally, highlighted an inconsistency by referring in Sungsuwan to "the high threshold" for showing that the trial had been unfair (para 115, footnote 45). Is unfairness tolerated to a greater extent than other forms of miscarriage of justice?
One thing made clear in Sungsuwan is the relevance of the effect of the error on the verdict in cases where the error has led to the trial being unfair. Trials may, of course, contain errors, yet not amount to unfair trials. Trial unfairness is a narrow concept, focused on the questions of bias and application of the law to the facts. Some erroneous directions on the law may not cause a jury, overall, to misapply the law to the facts; they may, in the particular context, be insignificant slips. There has been some difference in the cases (see especially, Howse, below)about whether an error has to affect the verdict before the trial can be said to have been unfair.
Elias CJ held that it was difficult to envisage that a verdict reached without fair trial could not amount to a miscarriage of justice and it would not be likely that the proviso could apply (para 6). Gault J referred to errors that deny the accused a fairly presented defence, saying that these may readily permit the Court to find prejudice and in extreme cases may not require the Court to ask whether they affected the verdict (para 65). Tipping J addressed the point more directly, saying that, rarely, things may have gone so wrong at trial that a miscarriage of justice occurred without there being any need to refer to whether there was a real risk of an unsafe verdict (para 111, 112, citing, inter alia, the judgment of himself, and Richardson P and Blanchard J in R v Griffin [2001] 3 NZLR 577, 587).
When judges say that things will happen only "rarely", they happen all the time. To say "rarely" is to indulge in wishful thinking. The point is that whenever the trial has been unfair, there is no need to enquire whether the unfairness caused the guilty verdict. No matter how correct the guilty verdict may be, it must not be arrived at by an unfair trial.
It makes no sense to put the necessary risk of trial unfairness, before a substantial miscarriage of justice is found on that ground, at any different from the necessary risk of an unsafe verdict. Difficulty can arise in deciding between the two grounds, as is illustrated by Howse v R [2005] UKPC 31 (19 July 2005), noted in this blog on 23 July 2005. There, the majority, in a case where it was not in issue that the admissible evidence supported the verdict, rather the issue was whether the trial had been unfair, applied the criterion of what course the trial would have taken if the errors had not been made. This was precisely the wrong test, as Sunsuwan shows the appropriate question is, given that the errors occurred, what part did they play. The correct approach would have been to ask, as did the minority in Howse, whether the errors could have played a part in the task of applying the law to the facts.
Readers of these blogs will be deeply satisfied to note that in our entry for 1 April 2005, commenting on Teeluck v State of Trinidad and Tobago, we asserted that loss of a fair trial was itself a substantial miscarriage of justice and did not require that the verdict be unsafe.
Issues have concerned the power of appellate courts to disallow appeals against conviction if, notwithstanding that there had been, for example (s 385(1)(c)) a miscarriage of justice at trial, that miscarriage was not "substantial": the proviso to s 385(1). When is a miscarriage of justice "substantial"?
In Sungsuwan the appeal was based on alleged misconduct of counsel at the trial, in failing to adduce evidence that, it was claimed, would have supported the defence, from two prosecution witnesses. The Supreme Court unanimously held that the verdict was safe and that there was no miscarriage of justice in the conviction. Three judgments were delivered: individually by Elias CJ and Tipping J, and jointly by Gault, Keith and Blanchard JJ (delivered by Gault J).
Elias CJ held that it would be unlikely to be appropriate to apply the proviso where a miscarriage of justice in terms of s 385(1)(c) is made out (para 6).
Tipping J was firmer on this point, holding that in cases coming within s 385(1)(a) and (c) the proviso was fused with the error, in the sense that there was no need to apply the proviso once the error had been established (para 113). At this point, Tipping J footnotes R v McI [1998] 1 NZLR 696 (CA), illustrating that there was a degree of "awkwardness" in the relation between para (c) and the proviso. In that case, delivering the majority judgment of himself and Keith J, Tipping J had not gone so far as to separate para (c) from the application of the proviso, and had held that before the proviso could be applied, the Court "must be sure that the jury would without doubt have convicted had the matters giving rise to the initial miscarriage of justice not been present" (p 712, line 22). There are two points here worth noting.
First, the attempt in McI to imagine what might have happened had the error not occurred, is not used as the test in Sangsuwan. Admittedly, it makes sense in some contexts, but it can be a distraction from the real point which is, given that the error had occurred, what was its effect? In Sungsuwan the question is put variously as "whether the verdict is unsafe" (Elias CJ at para 7), whether the error prejudiced the accused’s chance of an acquittal (Gault J at para 67), whether the error was likely to have had an effect on the trial outcome (Gault J at 69), whether there was a real risk that the error affected the trial outcome, whether there was a real concern for the safety of the verdict (Gault J at 70), whether the error prejudiced the accused’s prospects of acquittal or a lesser verdict (Tipping J at 101), whether the error led to a real risk of an unsafe verdict (Tipping J at 107, 108, 110, 111, 116), whether the accused was deprived of a reasonable possibility of a more favourable verdict (Tipping J at 115).
Second, the quoted passage from McI shows that there is a high standard on the prosecution to show that the miscarriage of justice was not "substantial", implying that tolerance of miscarriage of justice is low. This appears consistent with Sungsuwan, as the formulae referred to in the previous paragraph indicate. Tipping J, however, and perhaps unintentionally, highlighted an inconsistency by referring in Sungsuwan to "the high threshold" for showing that the trial had been unfair (para 115, footnote 45). Is unfairness tolerated to a greater extent than other forms of miscarriage of justice?
One thing made clear in Sungsuwan is the relevance of the effect of the error on the verdict in cases where the error has led to the trial being unfair. Trials may, of course, contain errors, yet not amount to unfair trials. Trial unfairness is a narrow concept, focused on the questions of bias and application of the law to the facts. Some erroneous directions on the law may not cause a jury, overall, to misapply the law to the facts; they may, in the particular context, be insignificant slips. There has been some difference in the cases (see especially, Howse, below)about whether an error has to affect the verdict before the trial can be said to have been unfair.
Elias CJ held that it was difficult to envisage that a verdict reached without fair trial could not amount to a miscarriage of justice and it would not be likely that the proviso could apply (para 6). Gault J referred to errors that deny the accused a fairly presented defence, saying that these may readily permit the Court to find prejudice and in extreme cases may not require the Court to ask whether they affected the verdict (para 65). Tipping J addressed the point more directly, saying that, rarely, things may have gone so wrong at trial that a miscarriage of justice occurred without there being any need to refer to whether there was a real risk of an unsafe verdict (para 111, 112, citing, inter alia, the judgment of himself, and Richardson P and Blanchard J in R v Griffin [2001] 3 NZLR 577, 587).
When judges say that things will happen only "rarely", they happen all the time. To say "rarely" is to indulge in wishful thinking. The point is that whenever the trial has been unfair, there is no need to enquire whether the unfairness caused the guilty verdict. No matter how correct the guilty verdict may be, it must not be arrived at by an unfair trial.
It makes no sense to put the necessary risk of trial unfairness, before a substantial miscarriage of justice is found on that ground, at any different from the necessary risk of an unsafe verdict. Difficulty can arise in deciding between the two grounds, as is illustrated by Howse v R [2005] UKPC 31 (19 July 2005), noted in this blog on 23 July 2005. There, the majority, in a case where it was not in issue that the admissible evidence supported the verdict, rather the issue was whether the trial had been unfair, applied the criterion of what course the trial would have taken if the errors had not been made. This was precisely the wrong test, as Sunsuwan shows the appropriate question is, given that the errors occurred, what part did they play. The correct approach would have been to ask, as did the minority in Howse, whether the errors could have played a part in the task of applying the law to the facts.
Readers of these blogs will be deeply satisfied to note that in our entry for 1 April 2005, commenting on Teeluck v State of Trinidad and Tobago, we asserted that loss of a fair trial was itself a substantial miscarriage of justice and did not require that the verdict be unsafe.
Thursday, August 25, 2005
Impartiality and reason
On this, the first anniversary of the start of this blog, we consider a case that illustrates how not to get the court on your side.
In Mugesera v Canada (Minister of Citizenship and Immigration) [2005] SCC 39 (18 August 2005) proceedings filed in the Supreme Court of Canada alleged that it was a biased court, its composition having been manipulated by the (former) Minister as part of an extensive Jewish conspiracy aimed at ensuring Mugesera would be deported.
One new Judge had been appointed, and she recused herself from having anything to do with this appeal as soon as she saw it on the Court’s list of forthcoming work. Her husband was chair of the War Crimes Committee of the Canadian Jewish Congress, a party to these proceedings, and he had conveyed representations about the case to the Minister. Deportation was sought on the grounds that Mugesera wrongly had been allowed to stay in Canada, and that he was alleged to have committed, or had incited others to commit, murder, genocide, or crimes against humanity in Rwanda.
Mugesera sought a stay of proceedings on the grounds that the Minister had wrongly exercised his decision to seek deportation, by appealing an earlier court ruling, and that the Supreme Court of Canada was biased.
The Court, now sitting as 8 Judges, delivered a joint judgment, referring briefly to the law on stay of proceedings (para 12) and judicial impartiality (para 13), and held that the Minister had properly exercised his power to appeal (para 14). It then turned to the allegations that it was biased. It held that no reasonable person would think that, one Justice having recused herself, the ability of the other members of the Court to remain impartial would be impaired (para 15). It made important observations of the duties of counsel when preparing legal argument (para 16):
"Although it is not our usual practice, the content of the motion and of its allegations compels us to point out that it is unprofessional and unacceptable. It constitutes an unqualified and abusive attack on the integrity of the Judges of this Court. In an attempt to establish the alleged Jewish conspiracy and abuse of process against the Mugeseras, this pleading systematically referred to irresponsible innuendo. In addition, it refers to exhibits that are irrelevant and whose content is entirely inappropriate and misleading. Thus, it is obvious from the motion and its supporting exhibits that it was drafted with little concern for the rigour, restraint and respect for the facts required of all lawyers involved in judicial proceedings as an officer of the court. We are compelled to say that none of the allegations in the motion, no portion of the affidavits filed in support of the motion, and none of the documents to which these affidavits refer justifies the motion with respect to members of this Court or to the appellant’s decision to initiate and pursue this appeal. The only abuse of process from this motion lies at the feet of the respondent Mugesera and [his counsel] Mr. Bertrand."
The Court concluded with observations that reflect the difference between politics and law:
"17 Regretfully, we must also mention that the motion and the documents filed in support of it include anti Semitic sentiment and views that most might have thought had disappeared from Canadian society, and even more so from legal debate in Canada. Our society is a diverse one, home to the widest variety of ethnic, linguistic and cultural groups. In this society, to resort to discourse and actions that profoundly contradict the principles of equality and mutual respect that are the foundations of our public life shows a lack of respect for the fundamental rules governing our public institutions and, more specifically, our courts and the justice system."
In Mugesera v Canada (Minister of Citizenship and Immigration) [2005] SCC 39 (18 August 2005) proceedings filed in the Supreme Court of Canada alleged that it was a biased court, its composition having been manipulated by the (former) Minister as part of an extensive Jewish conspiracy aimed at ensuring Mugesera would be deported.
One new Judge had been appointed, and she recused herself from having anything to do with this appeal as soon as she saw it on the Court’s list of forthcoming work. Her husband was chair of the War Crimes Committee of the Canadian Jewish Congress, a party to these proceedings, and he had conveyed representations about the case to the Minister. Deportation was sought on the grounds that Mugesera wrongly had been allowed to stay in Canada, and that he was alleged to have committed, or had incited others to commit, murder, genocide, or crimes against humanity in Rwanda.
Mugesera sought a stay of proceedings on the grounds that the Minister had wrongly exercised his decision to seek deportation, by appealing an earlier court ruling, and that the Supreme Court of Canada was biased.
The Court, now sitting as 8 Judges, delivered a joint judgment, referring briefly to the law on stay of proceedings (para 12) and judicial impartiality (para 13), and held that the Minister had properly exercised his power to appeal (para 14). It then turned to the allegations that it was biased. It held that no reasonable person would think that, one Justice having recused herself, the ability of the other members of the Court to remain impartial would be impaired (para 15). It made important observations of the duties of counsel when preparing legal argument (para 16):
"Although it is not our usual practice, the content of the motion and of its allegations compels us to point out that it is unprofessional and unacceptable. It constitutes an unqualified and abusive attack on the integrity of the Judges of this Court. In an attempt to establish the alleged Jewish conspiracy and abuse of process against the Mugeseras, this pleading systematically referred to irresponsible innuendo. In addition, it refers to exhibits that are irrelevant and whose content is entirely inappropriate and misleading. Thus, it is obvious from the motion and its supporting exhibits that it was drafted with little concern for the rigour, restraint and respect for the facts required of all lawyers involved in judicial proceedings as an officer of the court. We are compelled to say that none of the allegations in the motion, no portion of the affidavits filed in support of the motion, and none of the documents to which these affidavits refer justifies the motion with respect to members of this Court or to the appellant’s decision to initiate and pursue this appeal. The only abuse of process from this motion lies at the feet of the respondent Mugesera and [his counsel] Mr. Bertrand."
The Court concluded with observations that reflect the difference between politics and law:
"17 Regretfully, we must also mention that the motion and the documents filed in support of it include anti Semitic sentiment and views that most might have thought had disappeared from Canadian society, and even more so from legal debate in Canada. Our society is a diverse one, home to the widest variety of ethnic, linguistic and cultural groups. In this society, to resort to discourse and actions that profoundly contradict the principles of equality and mutual respect that are the foundations of our public life shows a lack of respect for the fundamental rules governing our public institutions and, more specifically, our courts and the justice system."
Tuesday, August 09, 2005
Purpose and policy
R v Lavender [2005] HCA 37 (4 August 2005) required the High Court of Australia to decide whether malice is an element of manslaughter in legislation dating back over 100 years. While the 7 judges all agreed in the result (that it is not), the case is interesting for its demonstration of how evenly balanced is the nature of statutory interpretation. Kirby J noted this point at para 69.
The only reason Kirby J agreed with the Court’s conclusion was that the consequences of the preferred interpretation were "less unsatisfactory" than the consequences of the rejected interpretation. This was the critical point for him, and it was decisive after an application of the standard approach to statutory interpretation, which involves an analysis of the context of the disputed provision, the legislative history, and an effort to discern the intention of the legislators. A background consideration, as a matter of last resort (para 93) is the rule that penal statutes should, in cases of ambiguity, be construed against the state.
The so-called purpose of the legislators is, on the standard approach, the touchstone. Indeed, it has (unambiguous) statutory force in the form of s 5(1) of the Interpretation Act 1999[NZ] which provides that the meaning of an enactment must be ascertained from its text and in the light of its purpose. The Privy Council referred to that in R v Karpavicius [2002] UKPC 59, (2002) 19 CRNZ 609, a case where the opposing arguments were linguistically finely balanced. The Privy Council made it plain that the purposive approach is to take precedence over the strict construction of penal statutes rule.
However, the courts depart from the purposive approach when that conflicts with human rights, giving effect to rights wherever doing so is consistent with the "underlying thrust" or is "with the grain" of the legislation (as opposed to being consistent with the legislative purpose): Ghaidan v Godin-Mendoza [2004] 3 WLR 113, [2004] UKHL 30 (21 June 2004). Plainly, there are some rather fine shades of meaning here.
In considering how best to approach the interpretation of old legislation, it is appropriate to bear in mind the words of Francis Lieber, Legal and Political Hermeneutics (enlarged ed, 1839), at 135, quoted by Richard Posner, The Problems of Jurisprudence (1990) at 298:
"Whether we rejoice in it or not, the world moves on, and no man can run against the movement of his time. Laws must be understood to mean something for the advantage of society; and if obsolete laws are not abolished by the proper authority, practical life itself, that is, the people, will and must abolish them, or alter them in their application …."
Posner argues that the term "interpretation" is so elastic that "it often is a fig leaf covering judicial discretion rather than a guide to decision making" (p 30).
If there is a lesson to be drawn from deconstructionism, it is that the meaning of a text is ascertained by its reader, and is not pre-determined by its author. See JM Balkin, "Deconstructive Practice and Legal Theory" at http://www.yale.edu/lawweb/jbalkin/articles/decprac1.htm
The only reason Kirby J agreed with the Court’s conclusion was that the consequences of the preferred interpretation were "less unsatisfactory" than the consequences of the rejected interpretation. This was the critical point for him, and it was decisive after an application of the standard approach to statutory interpretation, which involves an analysis of the context of the disputed provision, the legislative history, and an effort to discern the intention of the legislators. A background consideration, as a matter of last resort (para 93) is the rule that penal statutes should, in cases of ambiguity, be construed against the state.
The so-called purpose of the legislators is, on the standard approach, the touchstone. Indeed, it has (unambiguous) statutory force in the form of s 5(1) of the Interpretation Act 1999[NZ] which provides that the meaning of an enactment must be ascertained from its text and in the light of its purpose. The Privy Council referred to that in R v Karpavicius [2002] UKPC 59, (2002) 19 CRNZ 609, a case where the opposing arguments were linguistically finely balanced. The Privy Council made it plain that the purposive approach is to take precedence over the strict construction of penal statutes rule.
However, the courts depart from the purposive approach when that conflicts with human rights, giving effect to rights wherever doing so is consistent with the "underlying thrust" or is "with the grain" of the legislation (as opposed to being consistent with the legislative purpose): Ghaidan v Godin-Mendoza [2004] 3 WLR 113, [2004] UKHL 30 (21 June 2004). Plainly, there are some rather fine shades of meaning here.
In considering how best to approach the interpretation of old legislation, it is appropriate to bear in mind the words of Francis Lieber, Legal and Political Hermeneutics (enlarged ed, 1839), at 135, quoted by Richard Posner, The Problems of Jurisprudence (1990) at 298:
"Whether we rejoice in it or not, the world moves on, and no man can run against the movement of his time. Laws must be understood to mean something for the advantage of society; and if obsolete laws are not abolished by the proper authority, practical life itself, that is, the people, will and must abolish them, or alter them in their application …."
Posner argues that the term "interpretation" is so elastic that "it often is a fig leaf covering judicial discretion rather than a guide to decision making" (p 30).
If there is a lesson to be drawn from deconstructionism, it is that the meaning of a text is ascertained by its reader, and is not pre-determined by its author. See JM Balkin, "Deconstructive Practice and Legal Theory" at http://www.yale.edu/lawweb/jbalkin/articles/decprac1.htm
Friday, August 05, 2005
Silence as evidence
When, if ever, is the accused’s silence at trial evidence of his guilt? The conventional view is that silence itself is not evidence of anything; it is just an absence of evidence. The significance of this absence of evidence is, conventionally, that it may strengthen the weight to be given to prosecution evidence. Adams on Criminal Law puts it this way, at CA366.02:
"Silence cannot be used to fill a gap in the evidence presented by the prosecution, or relied on to establish guilt so as to warrant the jury omitting to scrutinise all the evidence before it. However, the Judge may direct the jury that in determining the weight to be given to evidence tending to prove guilt it may accord greater weight to such evidence by an inference drawn from the absence of explanation or answer from the accused: R v Hines (No 3) (1998) 16 CRNZ 236 (CA)."
On the other hand, in R v Becouarn [2005] UKHL 55 (28 July 2005) the House of Lords approved a direction to the jury that included the following:
" … if, and I stress the word, if, if you think in all the circumstances it is right and fair to do so you are entitled, when deciding whether the defendant is guilty of the offences with which he is charged, to draw such inferences from his failure to give evidence as you think proper. In simple terms that means that you may hold his failure to give evidence against him."
Permitting "such inferences as you think proper" potentially allows the jury to use silence as if it were positive evidence of guilt. This potential was recognised by Lord Carswell (with whom the others agreed) at para 21, where reference was made to a study showing that people tend to treat credibility evidence (in the example the Court was considering, this was evidence of the accused’s convictions) as if it were propensity evidence:
" … It is, however, a matter of notoriety that juries in practice are likely to regard them as indicators of propensity and so supportive of guilt. That piece of folk knowledge received some verification from a study commissioned by the Home Office and based on research carried out on the effect of bad character evidence on mock jurors (Sally Lloyd-Bostock, The Effects on Juries of Hearing about the Defendant's Previous Criminal Record: a Simulation Study [2000] Crim LR 734)."
In Becouarn the accused at trial had attacked the character of prosecution witnesses in a way that, inevitably, would have caused the judge to permit the prosecution to cross-examine him on his own previous convictions, if he gave evidence. By not giving evidence an accused can, in these circumstances, prevent the jury learning of his record. The accused did not give evidence, and the judge directed the jury on the significance of his silence at trial, and included the comment quoted above.
Jurisdictions differ in what is regarded as appropriate judicial comment on the accused’s silence at trial. As Adams observes, CA366.02:
"It would appear that the New Zealand position to some extent represents a mid-point between English practice where stronger comment may be considered appropriate (see R v Martinez-Tobon [1994] 2 All ER 90 (CA)) and the more restrictive Australian rule, as to which see Azzopardi v R (2001) 179 ALR 349; (2001) 119 A Crim R 8 (HCA)."
The Evidence Bill does not address the contents of judicial comment, merely providing (clause 29) that "In a criminal proceeding, no person other than the defendant or the defendant’s counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial."
"Silence cannot be used to fill a gap in the evidence presented by the prosecution, or relied on to establish guilt so as to warrant the jury omitting to scrutinise all the evidence before it. However, the Judge may direct the jury that in determining the weight to be given to evidence tending to prove guilt it may accord greater weight to such evidence by an inference drawn from the absence of explanation or answer from the accused: R v Hines (No 3) (1998) 16 CRNZ 236 (CA)."
On the other hand, in R v Becouarn [2005] UKHL 55 (28 July 2005) the House of Lords approved a direction to the jury that included the following:
" … if, and I stress the word, if, if you think in all the circumstances it is right and fair to do so you are entitled, when deciding whether the defendant is guilty of the offences with which he is charged, to draw such inferences from his failure to give evidence as you think proper. In simple terms that means that you may hold his failure to give evidence against him."
Permitting "such inferences as you think proper" potentially allows the jury to use silence as if it were positive evidence of guilt. This potential was recognised by Lord Carswell (with whom the others agreed) at para 21, where reference was made to a study showing that people tend to treat credibility evidence (in the example the Court was considering, this was evidence of the accused’s convictions) as if it were propensity evidence:
" … It is, however, a matter of notoriety that juries in practice are likely to regard them as indicators of propensity and so supportive of guilt. That piece of folk knowledge received some verification from a study commissioned by the Home Office and based on research carried out on the effect of bad character evidence on mock jurors (Sally Lloyd-Bostock, The Effects on Juries of Hearing about the Defendant's Previous Criminal Record: a Simulation Study [2000] Crim LR 734)."
In Becouarn the accused at trial had attacked the character of prosecution witnesses in a way that, inevitably, would have caused the judge to permit the prosecution to cross-examine him on his own previous convictions, if he gave evidence. By not giving evidence an accused can, in these circumstances, prevent the jury learning of his record. The accused did not give evidence, and the judge directed the jury on the significance of his silence at trial, and included the comment quoted above.
Jurisdictions differ in what is regarded as appropriate judicial comment on the accused’s silence at trial. As Adams observes, CA366.02:
"It would appear that the New Zealand position to some extent represents a mid-point between English practice where stronger comment may be considered appropriate (see R v Martinez-Tobon [1994] 2 All ER 90 (CA)) and the more restrictive Australian rule, as to which see Azzopardi v R (2001) 179 ALR 349; (2001) 119 A Crim R 8 (HCA)."
The Evidence Bill does not address the contents of judicial comment, merely providing (clause 29) that "In a criminal proceeding, no person other than the defendant or the defendant’s counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial."
Saturday, July 23, 2005
Fundamental difficulties
New Zealand has not been served well by the Privy Council in the last criminal appeal it will hear from this country. It is alarming that some of the most senior judges differ over recognising the fundamental attributes of a fair trial. In Howse v R [2005] UKPC 31 (19 July 2005) the Judicial Committee consisted of three Law Lords and two retired Lords Justice of Appeal, the Rt Hon Sir Swinton Thomas, and the Rt Hon Sir Andrew Leggatt. The Court split 3-2. Lord Rodger, the most senior of these Law Lords, dissented. The majority Law Lords were Hutton and Carswell. The other members were also divided, Sir Swinton Thomas being with the majority. The absence of Lords Bingham, Nicholls and Steyn from this Board could be said to significantly reduce the status of the case.
Fairness is a broad and not always easy to define concept. But lawyers like to attack such concepts and break them down. So, there are, I suggest, two kinds of trial unfairness. The first is procedural unfairness, and this may or may not give rise to the second kind, substantive unfairness. Alternatively, substantive unfairness may exist without there also being procedural unfairness. Either kind of unfairness amounts to a substantial miscarriage of justice, requiring the quashing of conviction and (usually) an order for a new trial.
Procedural unfairness occurs where the accused is deprived of the right to have the facts determined by an unbiased tribunal that applies the law correctly. By “unbiased” I mean to include juries that are not impartial because of some misdirection on the law by the judge. This might be, to give just a few examples, a misdirection on the use of propensity evidence, on the burden of proof, on the defendant’s right to silence, or on the need for caution in relation to particular evidence. Such errors could affect a juror’s assessment of the evidence against the defendant. These are not in the category of errors called substantive because they do not involve the ingredients of the alleged offence or, as one might say, the substance of the charge. More obvious procedural errors can occur before a trial, for example where there has been a failure of disclosure by the prosecutor, or where an impropriety in the obtaining of evidence was such that the evidence was wrongly admitted at trial. There may, nevertheless, be some errors that do not give rise to unfairness if it can properly be said that they were of no consequence in the overall context of the trial. The critical issue in Howse was whether the errors that occurred were of no consequence in this sense.
Substantive unfairness occurs where the accused has, through errors at trial, or through the unavailability of evidence that subsequently comes to hand, been improperly deprived of a fair chance of an acquittal. For example, the jury may have been wrongly directed, or not directed at all, on the elements of the alleged offence, or on the burden and standard of proof, or on a defence.
It would be wrong to confuse the question of fairness of either kind with the question of guilt. But in Howse the Privy Council majority did just that.
The majority in Howse thought that, because the properly admissible evidence of guilt was overwhelming, there was no substantive unfairness. They also held that there was no procedural unfairness because the errors were inconsequential, and therefore the trial was fair.
The minority in Howse carefully analysed the significance of the improperly admitted evidence in the context of the trial. The Crown had decided to run its case relying on motive to establish that the accused, and not his partner, was the murderer. The Crown had obtained a pre-trial ruling that evidence of motive was admissible, and, bearing in mind the importance of that evidence for the prosecution case, it was impossible (said the minority, para 68) for the Crown to now argue that the evidence was insignificant. The trial judge had referred to it as being significant when she summed up the case to the jury (para 65). In fact, the Court of Appeal held that the evidence of motive was inadmissible, and this finding was not challenged before the Privy Council. The minority held that the trial had been unfair because the accusation of motive, central to the Crown’s case, was not supported by any admissible evidence.
The majority reasoned that, if the errors at trial had not occurred, the Crown’s case was so compelling that a conviction was inevitable, therefore the trial had been fair. In the context of the case, said the majority, the errors were not radical or fundamental enough to deprive the accused of a proper trial (para 40).
A potential difficulty exists in the view of all members of the Board (paras 37 and 54) that a high threshold must be crossed before a finding of trial unfairness can be made. This, it is suggested, should not be taken to mean that a reasonably high level of unfairness will be tolerated before it amounts to a substantial miscarriage of justice. Rather, it should be taken to mean that the courts will scrutinise claims of unfairness very carefully before accepting that unfairness occurred.
Howse is a lesson in the dangers of emphasising substantive fairness at the expense of procedural fairness. The majority made the mistake of applying, to the issue of whether there was procedural unfairness, the criterion for substantive unfairness. There may always be a dispute over whether Mr Howse received "the kind of trial which the law expects that an accused should have" (para 47).
The minority in Howse carefully analysed the significance of the improperly admitted evidence in the context of the trial. The Crown had decided to run its case relying on motive to establish that the accused, and not his partner, was the murderer. The Crown had obtained a pre-trial ruling that evidence of motive was admissible, and, bearing in mind the importance of that evidence for the prosecution case, it was impossible (said the minority, para 68) for the Crown to now argue that the evidence was insignificant. The trial judge had referred to it as being significant when she summed up the case to the jury (para 65). In fact, the Court of Appeal held that the evidence of motive was inadmissible, and this finding was not challenged before the Privy Council. The minority held that the trial had been unfair because the accusation of motive, central to the Crown’s case, was not supported by any admissible evidence.
The majority reasoned that, if the errors at trial had not occurred, the Crown’s case was so compelling that a conviction was inevitable, therefore the trial had been fair. In the context of the case, said the majority, the errors were not radical or fundamental enough to deprive the accused of a proper trial (para 40).
A potential difficulty exists in the view of all members of the Board (paras 37 and 54) that a high threshold must be crossed before a finding of trial unfairness can be made. This, it is suggested, should not be taken to mean that a reasonably high level of unfairness will be tolerated before it amounts to a substantial miscarriage of justice. Rather, it should be taken to mean that the courts will scrutinise claims of unfairness very carefully before accepting that unfairness occurred.
Howse is a lesson in the dangers of emphasising substantive fairness at the expense of procedural fairness. The majority made the mistake of applying, to the issue of whether there was procedural unfairness, the criterion for substantive unfairness. There may always be a dispute over whether Mr Howse received "the kind of trial which the law expects that an accused should have" (para 47).
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