What use of torture is tolerable? More precisely, what risk that evidence tendered to the court was obtained by torture is tolerable? The House of Lords has answered, if on the balance of probabilities there was no torture, that is acceptable: A v Secretary of State for the Home Department [2005] UKHL 71 (8 December 2005).
This means that a risk of torture, just falling short of tipping the balance, can be ignored. It is notable that this case involved 7 Law Lords, and they split 4-3 on this difficult issue. Of course, they unanimously held torture to be repugnant to the common law. The minority, Lords Bingham, Nicholls and Hoffmann, held that evidence was inadmissible if the court was left with a real risk that it had been obtained by torture.
We should remember that in R v McCuin [1982] 1 NZLR 13 (CA) it was held that statements by accused persons should be excluded unless the court was sure beyond reasonable doubt that they had been made voluntarily.
As we often see in cases considered in this blog over the last 16 months, the choice between formalist and pragmatic reasoning is fundamental. This is illustrated in A’s case by Lord Hope, para 119:
"… it would be unrealistic to … demand that each piece of information be traced back to its ultimate source and the circumstances in which it was obtained investigated so that it could be proved piece by piece, that it was not obtained under torture. The threshold cannot be put that high. Too often we have seen how the lives of innocent victims and their families are torn apart by terrorist outrages. Our revulsion against torture, and the wish which we all share to be seen to abhor it, must not be allowed to create an insuperable barrier for those who are doing their honest best to protect us. A balance must be struck between what we would like to achieve and what can actually be achieved in the real world in which we all live. Articles 5(4) and 6(1) of the European Convention, to which Lord Bingham refers in para 62, must be balanced against the right to life that is enshrined in article 2 of the Convention."
Lord Carswell reasoned as follows (para 158):
"After initially favouring the Bingham test, I have been persuaded that the Hope test should be adopted … in determining whether statements should be admitted when it is claimed that they may have been obtained by the use of torture. Those who oppose the latter test have raised the spectre of the widespread admission of statements coming from countries where it is notorious that torture is regularly practised. This possibility must of course give concern to any civilised person. It may well be, however, that the two tests will produce a different result in only a relatively small number of cases …. Moreover, as my noble and learned friend Lord Brown of Eaton-under-Heywood points out in para 166 of his opinion, intelligence is commonly made up of pieces of material from a large number of sources, with the consequence that the rejection of one or some pieces will not necessarily be conclusive. While I fully appreciate the force of the considerations advanced by Lord Bingham in paras 58 and 59 of his opinion, I feel compelled to agree with Lord Hope's view in para 118 that the test which he proposes would, as well as involving fewer practical problems, strike a better balance in the way he there sets out."
Reflecting on this case, one is tempted to think that, as the courts have to respond to the difficult issues raised by the State’s responses to terrorism, a law peculiar to the demands of this sort of warfare will develop. It may well be that where public safety is a major consideration, a criterion for admissibility set at the level of the balance of probabilities can be acceptable, whereas in criminal cases of the ordinary kind the McCuin approach will remain appropriate.
Another point, on which laws about terrorism may properly set themselves apart, is the extent to which investigation of crime may be lawful, even though it is based on information obtained through torture. In ordinary criminal cases, the lawfulness of investigatory techniques, such as the use of interception devices, is assessed by ignoring information that had been improperly obtained. For example, if there is insufficient information available to support the granting of an interception warrant once improperly obtained information is ignored, the warrant is invalid: R v Crowe [1996] 3 NZLR 415; (1996) 13 CRNZ 708 (CA). But terrorism raises different values. As Lord Bingham said:
"68. … If the police were to learn of the whereabouts of a ticking bomb it would be ludicrous for them to disregard this information if it had been procured by torture. No one suggests the police should act in this way. Similarly, if tainted information points a finger of suspicion at a particular individual: depending on the circumstances, this information is a matter the police may properly take into account when considering, for example, whether to make an arrest.
"69. In both these instances the executive arm of the state is open to the charge that it is condoning the use of torture. So, in a sense, it is. The government is using information obtained by torture. But in cases such as these the government cannot be expected to close its eyes to this information at the price of endangering the lives of its own citizens. Moral repugnance to torture does not require this."
Judicial supervision of executive acts, however, can produce what in A was called a "mismatch" between information properly considered by the executive, and information properly admissible in evidence. While the Law Lords considered this mismatch was an acceptable inevitability (Lord Bingham at para 48 said "The common law is not intolerant of anomaly"), one might wonder how persistent this mismatch will be; this, indeed, is the central question. The law tends to adopt pragmatic compromises, as Lord Bingham pointed out in para 16:
" … there is an obvious anomaly in treating an involuntary statement as inadmissible while treating as admissible evidence which would never have come to light but for the involuntary statement. But this is an anomaly which the English common law has accepted, no doubt regarding it as a pragmatic compromise between the rejection of the involuntary statement and the practical desirability of relying on probative evidence which can be adduced without the need to rely on the involuntary statement."
On another point, but one that arises from this sort of legislative endorsement of illegal investigatory procedures, Lord Bingham let slip an old fashioned remark. At para 51 he said:
"… it would of course be within the power of a sovereign Parliament (in breach of international law) to confer power … to receive third party torture evidence."
Well, would it? Historical understanding of sovereignty supports this view, but the development of strong international law, with which this case is largely concerned, is incompatible with the notion that Parliament can make any law whatsoever. Further, the implications of Lord Bingham’s remark are that the British people may embrace barbaric behaviour, condemning themselves in the same terms as the Law Lords, and all civilized people, condemn torture.
Similar issues, to those considered in A's case, could arise in New Zealand under the Terrorism Suppression Act 2002, which (to summarise some of its aspects) allows the Prime Minister to use any relevant information to designate as a terrorist any person or organisation (s 30), and which creates offences of involvement with terrorists (s 13). On prosecution, a dispute may arise over the applicability of the definition to a particular person or organisation, and some inquiry into the source of the Prime Minister's information may be necessary: s 39(4) "In determining the proceedings, the Court may take into account any relevant classified security information available to it, even though that information has not been disclosed to or responded to by other parties to the proceedings."
Friday, December 09, 2005
Monday, December 05, 2005
Synchronicity
The House of Lords and the New Zealand Supreme Court decided similar cases on 1 December 2005. Each concerned the rights of persons who had been convicted, and each involved sentencing. They differed, in general terms, in that the English case concerned a transitional question arising from a legislation change, whereas the New Zealand case concerned the effect of a change in the circumstances of the offender, namely his age, on his eligibility for the indeterminate sentence of preventive detention. Both cases were decided by applying considerations of fairness.
In R (on application of Hammond) v Secretary of State for the Home Department [2005] UKHL 69 (1 December 2005) a literal reading of the relevant legislation required that the punitive period of a sentence of life imprisonment must be set by a High Court Judge on the papers and without an oral hearing. It was held that this should be read as being subject to an implied condition that an oral hearing must be permitted where that is necessary to comply with the prisoner’s right to a fair trial under art 6(1) of the European Convention on Human Rights.
Interestingly, this implication of an exception to an absolute legislative provision was accepted by the Secretary, once it had been decided that the absolute provision breached the Convention. There was, accordingly, no need to reconsider this approach to interpretation, which had been established in R v A [2002] 1 AC 45 (HL), where it was held that such implication was required by s 3(1) of the Human Rights Act 1998[UK], which provides:
"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."
International law was also relevant in Mist v R [2005] NZSC 77 (1 December 2005). Here, preventive detention could be imposed on an offender, who was otherwise eligible, if he was "not less than 21 years of age". The provision did not specify whether this age was to be taken as at the date of the commission of the offence, or at the date of sentencing.
The Court was unanimous that the answer was the age of the offender at the time of the offence. Three Judges decided this on a narrow point: the interpretation of s 4(2) of the Criminal Justice Act 1985 (legislation which has since been replaced with provisions clear on the point). The other two Judges, Elias CJ and Keith J, agreed with that, and added broader considerations, which included the need to read s 4 consistently with art 15 of the International Covenant on Civil and Political Rights. Gault J summarised the opposing arguments in a way that suggested they were finely poised, but at para 62, he expressed agreement with a generous interpretation of s 4(2) "in conformity", apparently meaning the requirement of consistency with rights to which Elias CJ and Keith J had referred.
Eilas CJ and Keith J referred to the need for fairness and due process (paras 28, 29) and to developments in human rights law over the last 30 years (para 39), and to the need to give individuals the full measure of their rights (para 45).
Implicit in this approach is compliance with s 6 of the New Zealand Bill of Rights Act 1990, which is as follows:
"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."
The Bill of Rights is, according to its statement of purpose, "An Act – … (b) To affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights".
Article 15(1) of that Covenant states:
"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby."
The first sentence of this is echoed in s 26(1) NZBORA. The second and final sentences are reflected in s 25(g) of NZBORA, although the wording differs slightly:
"(g) The right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty."
Of course, in Mist it was the offender’s age, not the legislation, that had changed, but Elias CJ and Keith J, and implicitly Gault J, were prepared to apply the applicable provision consistently with art 15.
Significantly, this approach does not involve a close reading of s 6 NZBORA (which, indeed, was not cited in Mist). There was no agonizing over how strongly s 6 compelled an interpretation consistent with rights, and no attempt to contrast the approach required by s 6 NZBORA with the approach required of English courts by s 3 of the Human Rights Act 1998[UK]. The force of international rights law was recognised by three judges as relevant to the interpretation problem in Mist. As in Hammond, the rights-mandated approach to interpretation was accepted, without the need for argument over the strength of the legislative direction to conform to rights.
This has relevance to the forthcoming issue of the standard of proof imposed on the defence by reverse-onus provisions, which is essentially the question on which leave to appeal was granted in R v Hansen [2005] NZSC 74 (24 November 2005). Developments in international rights law have revealed an aversion to interpreting reverse onus provisions as placing legal burdens on the defence. Those developments can be followed in New Zealand without straining the words of s 6 of NZBORA.
In R (on application of Hammond) v Secretary of State for the Home Department [2005] UKHL 69 (1 December 2005) a literal reading of the relevant legislation required that the punitive period of a sentence of life imprisonment must be set by a High Court Judge on the papers and without an oral hearing. It was held that this should be read as being subject to an implied condition that an oral hearing must be permitted where that is necessary to comply with the prisoner’s right to a fair trial under art 6(1) of the European Convention on Human Rights.
Interestingly, this implication of an exception to an absolute legislative provision was accepted by the Secretary, once it had been decided that the absolute provision breached the Convention. There was, accordingly, no need to reconsider this approach to interpretation, which had been established in R v A [2002] 1 AC 45 (HL), where it was held that such implication was required by s 3(1) of the Human Rights Act 1998[UK], which provides:
"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."
International law was also relevant in Mist v R [2005] NZSC 77 (1 December 2005). Here, preventive detention could be imposed on an offender, who was otherwise eligible, if he was "not less than 21 years of age". The provision did not specify whether this age was to be taken as at the date of the commission of the offence, or at the date of sentencing.
The Court was unanimous that the answer was the age of the offender at the time of the offence. Three Judges decided this on a narrow point: the interpretation of s 4(2) of the Criminal Justice Act 1985 (legislation which has since been replaced with provisions clear on the point). The other two Judges, Elias CJ and Keith J, agreed with that, and added broader considerations, which included the need to read s 4 consistently with art 15 of the International Covenant on Civil and Political Rights. Gault J summarised the opposing arguments in a way that suggested they were finely poised, but at para 62, he expressed agreement with a generous interpretation of s 4(2) "in conformity", apparently meaning the requirement of consistency with rights to which Elias CJ and Keith J had referred.
Eilas CJ and Keith J referred to the need for fairness and due process (paras 28, 29) and to developments in human rights law over the last 30 years (para 39), and to the need to give individuals the full measure of their rights (para 45).
Implicit in this approach is compliance with s 6 of the New Zealand Bill of Rights Act 1990, which is as follows:
"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."
The Bill of Rights is, according to its statement of purpose, "An Act – … (b) To affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights".
Article 15(1) of that Covenant states:
"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby."
The first sentence of this is echoed in s 26(1) NZBORA. The second and final sentences are reflected in s 25(g) of NZBORA, although the wording differs slightly:
"(g) The right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty."
Of course, in Mist it was the offender’s age, not the legislation, that had changed, but Elias CJ and Keith J, and implicitly Gault J, were prepared to apply the applicable provision consistently with art 15.
Significantly, this approach does not involve a close reading of s 6 NZBORA (which, indeed, was not cited in Mist). There was no agonizing over how strongly s 6 compelled an interpretation consistent with rights, and no attempt to contrast the approach required by s 6 NZBORA with the approach required of English courts by s 3 of the Human Rights Act 1998[UK]. The force of international rights law was recognised by three judges as relevant to the interpretation problem in Mist. As in Hammond, the rights-mandated approach to interpretation was accepted, without the need for argument over the strength of the legislative direction to conform to rights.
This has relevance to the forthcoming issue of the standard of proof imposed on the defence by reverse-onus provisions, which is essentially the question on which leave to appeal was granted in R v Hansen [2005] NZSC 74 (24 November 2005). Developments in international rights law have revealed an aversion to interpreting reverse onus provisions as placing legal burdens on the defence. Those developments can be followed in New Zealand without straining the words of s 6 of NZBORA.
Thursday, November 24, 2005
Bain, again
Supporters of David Bain will, no doubt, be studying Mallard v R [2005] HCA 68 (15 November 2005). Both started as petitions for the exercise of the Royal prerogative. Just as in R v Bain [2004] 1 NZLR 638, (2003) 20 CRNZ 637 (CA), this was a reference to the court of the question of the conviction of the petitioner, although, in Mallard, the proceedings reached the High Court of Australia on appeal from the determination of the reference by the Court of Criminal Appeal of Western Australia. The equivalent New Zealand provision is s 406 of the Crimes Act 1961. In Bain, the Court of Appeal noted, para 4, that
"A reference under s 406(a) has the effect of an appeal against the convictions so referred. Hence this Court must consider the matters arising as if David Bain was appealing against his convictions a second time."
In Mallard, the corresponding provision was described, at para 6, in the following terms:
"The significance of this history for present purposes, is that the exercise for which s 140(1)(a) of the Sentencing Act 1995 [WA] provides is effectively both a substitute for, and an alternative to, the invocation, and the exercise of the Crown prerogative, an exercise in practice necessarily undertaken by officials and members of the Executive, unconfined by any rules or laws of evidence, procedure, and appellate conventions and restrictions. That history, briefly stated, argues in favour of an approach by a court on a reference of a petition by the Attorney-General to it, of a full review of all the admissible relevant evidence available in the case, whether new, fresh or already considered in earlier proceedings, however described, except to the extent if any, that the relevant Part of the Act may otherwise require."
A significant point concerning the approach of the appellate court in these circumstances (where fresh evidence is relied on by the petitioner) was made in Mallard. This is that it is wrong for the appellate court to view the evidence in a way that is constrained by the verdict that had been reached at trial. At para 10 of Mallard the Court criticised the approach taken by the CCA (WA) whereby limitations were perceived on the court’s jurisdiction to consider the evidence. Instead, the HCA held that the reference of "the whole case" to the appellate court carried no such limitations, and
"…The inhibitory purpose and effect of the words "as if it were an appeal" are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and further, and perhaps most relevantly, to require the Court to consider whether the overall strength of the prosecution case requires the Court to apply the proviso …".
The corresponding New Zealand provision does not use the phrase "the whole case", but it is clear that the meaning is intended to be the same. It refers to "the question of the conviction", and, as with the Western Australian provision, it contrasts that with reference of "any point arising in the case".
It seems fair to say, therefore, that on reference of the conviction, the Court of Appeal should not feel constrained in its view of the facts by the jury’s decision. It is wrong, on this view, to say that because the jury must have accepted certain evidence, that that evidence carries enhanced status for the purposes of determining the reference.
Another indication of the correct approach, stated in Mallard at para 23, is
"It was not for the Court of Criminal Appeal to seek out possibilities, obvious or otherwise, to explain away troublesome inconsistencies which an accused has been denied an opportunity to explore and exploit forensically."
In a separate, concurring, judgment, Kirby J held, para 84, that in a fresh evidence case, the question was whether absence of that evidence
"… could have seriously undermined the effective presentation of the defence case, [as] a verdict reached in the absence of the material evidence (and the use that the defence might have made of it) cannot stand."
Mallard also contains a useful review of the prosecution’s duty of disclosure of evidence to the defence.
In the light of Mallard, the need to reconsider Bain is clear.
"A reference under s 406(a) has the effect of an appeal against the convictions so referred. Hence this Court must consider the matters arising as if David Bain was appealing against his convictions a second time."
In Mallard, the corresponding provision was described, at para 6, in the following terms:
"The significance of this history for present purposes, is that the exercise for which s 140(1)(a) of the Sentencing Act 1995 [WA] provides is effectively both a substitute for, and an alternative to, the invocation, and the exercise of the Crown prerogative, an exercise in practice necessarily undertaken by officials and members of the Executive, unconfined by any rules or laws of evidence, procedure, and appellate conventions and restrictions. That history, briefly stated, argues in favour of an approach by a court on a reference of a petition by the Attorney-General to it, of a full review of all the admissible relevant evidence available in the case, whether new, fresh or already considered in earlier proceedings, however described, except to the extent if any, that the relevant Part of the Act may otherwise require."
A significant point concerning the approach of the appellate court in these circumstances (where fresh evidence is relied on by the petitioner) was made in Mallard. This is that it is wrong for the appellate court to view the evidence in a way that is constrained by the verdict that had been reached at trial. At para 10 of Mallard the Court criticised the approach taken by the CCA (WA) whereby limitations were perceived on the court’s jurisdiction to consider the evidence. Instead, the HCA held that the reference of "the whole case" to the appellate court carried no such limitations, and
"…The inhibitory purpose and effect of the words "as if it were an appeal" are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and further, and perhaps most relevantly, to require the Court to consider whether the overall strength of the prosecution case requires the Court to apply the proviso …".
The corresponding New Zealand provision does not use the phrase "the whole case", but it is clear that the meaning is intended to be the same. It refers to "the question of the conviction", and, as with the Western Australian provision, it contrasts that with reference of "any point arising in the case".
It seems fair to say, therefore, that on reference of the conviction, the Court of Appeal should not feel constrained in its view of the facts by the jury’s decision. It is wrong, on this view, to say that because the jury must have accepted certain evidence, that that evidence carries enhanced status for the purposes of determining the reference.
Another indication of the correct approach, stated in Mallard at para 23, is
"It was not for the Court of Criminal Appeal to seek out possibilities, obvious or otherwise, to explain away troublesome inconsistencies which an accused has been denied an opportunity to explore and exploit forensically."
In a separate, concurring, judgment, Kirby J held, para 84, that in a fresh evidence case, the question was whether absence of that evidence
"… could have seriously undermined the effective presentation of the defence case, [as] a verdict reached in the absence of the material evidence (and the use that the defence might have made of it) cannot stand."
Mallard also contains a useful review of the prosecution’s duty of disclosure of evidence to the defence.
In the light of Mallard, the need to reconsider Bain is clear.
Wednesday, November 16, 2005
Death and certainty
How much formalism is too much? In interpreting statutes, to resolve an ambiguity, judges may focus on the context of the problematic phrase: the paragraph, subsection, and the placing of the section in the scheme of the Act, are considered. In addition, standard tools of interpretation, such as ejusdem generis, and noscitur a sociis, may be used.
Another approach, which may be used in conjunction with this formalistic method, or as an alternative, is the purposive, or pragmatic approach. According to this, the meaning of ambiguous legislation should be determined by reference to what would promote or further Parliament’s purpose in enacting the provision.
There is no consistency in approach to interpreting ambiguous criminal legislation. For example, in R v Secretary of State for the Home Dept; ex p Pierson [1998] AC 539, Lord Steyn said at 585:
"Counsel for the Home Secretary argued that the fixing of the tariff cannot be a sentencing exercise because the judge pronounces the only sentence, ie one of life imprisonment. This is far too formalistic. In public law the emphasis should be on substance rather than form. This case should also not be decided on a semantic quibble about whether the Home Secretary’s function is strictly ‘a sentencing exercise’. The undeniable fact is that in fixing a tariff in an individual case the Home Secretary is making a decision about the punishment of the convicted man."
And, in R v Karpavicius [2002] UKPC 59 (PC) Lord Steyn said, para 15:
"…In a more literalist age it may have been said that the words of s 6(2A)(c) [of the Misuse of Drugs Act 1975[NZ]] are capable of bearing either a wide and narrow meaning and that the fact that a criminal statute is involved requires the narrower interpretation to be adopted. Nowadays an approach concentrating on the purpose of the statutory provision is generally to be preferred: Cross, Statutory Interpretation (3rd ed), 1995, pp 172-175; Ashworth, Principles of Criminal Law (3rd ed), 1999, pp 80-81. This is reinforced by s 5(1) of the Interpretation Act 1999 [New Zealand] which provides that the meaning of an enactment must be ascertained from its text and in the light of its purpose."
We must, then, wonder whether Lord Steyn has consistently taken this pragmatic approach in Smith v The Queen (Jamaica) [2005] UKPC 43 (14 November 2005). Here, the Privy Council split 3-2 on a question of interpretation, and Lord Steyn was part of the majority.
The issue in Smith was the meaning of the phrase "in the course or furtherance of" in the definition of capital murder in Jamaica. There, capital murder (ie where the sentence may be death) occurs where murder is committed "in the course or furtherance of … burglary or housebreaking" (s 2(1)(d) of the Offences Against the Person Act 1864, as amended in 1992).
The facts of Smith were refreshingly brief; they were summarised in the minority judgment, para 18, as "The appellant stood on a ladder against the outside of the deceased's house at night, pulled aside a curtain and a piece of plastic in a window, inserted his head and upper body through the window and struck the deceased a number of blows with a machete as she lay in her bed under the window."
There was no doubt that his entry with felonious intent constituted burglary. The question was whether the murder was in furtherance of the burglary. He committed the burglary with intent of murdering. The minority considered that the murder was therefore committed in the course of or in furtherance of the burglary. This, one might have thought, is the ordinary and natural meaning of the phrase. But no; another interpretation is possible: the offender had a single purpose of murder, and the burglary was in furtherance of the murder, not the other way around, so the murder was not within the definition of capital murder. This was the majority view.
There are two competing public policy justifications. The minority refer, para 23, to the purpose of the section as being:
"…to protect citizens from being murdered in their own homes by intruders who break in at night and to deter offenders from committing such murders. We consider that the legislature could not have intended that an intruder who broke into a house, which he believed to be unoccupied, for the purpose of stealing therein and then, coming upon the occupier, killed him or her, should be guilty of capital murder, but that a person who broke into a house with the express purpose of killing the occupant and did so should not be guilty of capital murder."
On the other hand, the majority refer, para 8 to:
"The vice in these cases, which was thought by …[Parliament] to justify the death penalty, was that the defendant resorted to killing his victim in the course or furtherance of committing the [lesser offence]. It was the wanton and cynical nature of the killing, the debasing in the context of a comparatively minor criminal act of the value that is to be attached to human life, that was regarded as particularly reprehensible."
The majority adhered to authority that required a "duality of purpose" before capital murder was committed: Lamey v The Queen [1996] 1 WLR 902 (PC). Such adherence to precedent is an illustration of formalism being dominant over pragmatism: see Thomas, "The Judicial Process" (2005). Thomas would remove all formalism from the law, whereas the current approach of courts is to employ either formalism, pragmatism, or a blend of them both, as seems appropriate.
This is also illustrated in Lamey, where the Board (which again included Lord Steyn) considered the interpretation of another paragraph of s 2(1) of the Jamaican legislation. This one, (f), includes within the definition of capital murder, any murder committed in furtherance of an act of terrorism. The unanimous judgment refers to the approach to penal statutes:
"6. The starting point in any consideration of section 2(1)(f) must be the fact that its object was to reduce the categories of murder which attracted the death penalty. It follows that a construction which produces little or no reductive effect is unlikely to be correct. Furthermore regard must be had to the general principle that a person should not be penalised and in particular should not be deprived of life or freedom unless under clear authority of law (Bennion's Statutory Interpretation, 2nd Edn. page 574)."
Note the slightly more restrictive approach endorsed here, compared with that taken in Karpavicius, above. In Lamey the conclusion was that paragraph (f) required two intents:
"8. … In their Lordships' view the paragraph requires there to be a double intent on the part of the murderer namely an intent to murder and an intent to create a state of fear in the public or a section thereof."
In Smith, this approach was applied to paragraph (d), and this reasoning is an example of formalist analysis.
Another approach, which may be used in conjunction with this formalistic method, or as an alternative, is the purposive, or pragmatic approach. According to this, the meaning of ambiguous legislation should be determined by reference to what would promote or further Parliament’s purpose in enacting the provision.
There is no consistency in approach to interpreting ambiguous criminal legislation. For example, in R v Secretary of State for the Home Dept; ex p Pierson [1998] AC 539, Lord Steyn said at 585:
"Counsel for the Home Secretary argued that the fixing of the tariff cannot be a sentencing exercise because the judge pronounces the only sentence, ie one of life imprisonment. This is far too formalistic. In public law the emphasis should be on substance rather than form. This case should also not be decided on a semantic quibble about whether the Home Secretary’s function is strictly ‘a sentencing exercise’. The undeniable fact is that in fixing a tariff in an individual case the Home Secretary is making a decision about the punishment of the convicted man."
And, in R v Karpavicius [2002] UKPC 59 (PC) Lord Steyn said, para 15:
"…In a more literalist age it may have been said that the words of s 6(2A)(c) [of the Misuse of Drugs Act 1975[NZ]] are capable of bearing either a wide and narrow meaning and that the fact that a criminal statute is involved requires the narrower interpretation to be adopted. Nowadays an approach concentrating on the purpose of the statutory provision is generally to be preferred: Cross, Statutory Interpretation (3rd ed), 1995, pp 172-175; Ashworth, Principles of Criminal Law (3rd ed), 1999, pp 80-81. This is reinforced by s 5(1) of the Interpretation Act 1999 [New Zealand] which provides that the meaning of an enactment must be ascertained from its text and in the light of its purpose."
We must, then, wonder whether Lord Steyn has consistently taken this pragmatic approach in Smith v The Queen (Jamaica) [2005] UKPC 43 (14 November 2005). Here, the Privy Council split 3-2 on a question of interpretation, and Lord Steyn was part of the majority.
The issue in Smith was the meaning of the phrase "in the course or furtherance of" in the definition of capital murder in Jamaica. There, capital murder (ie where the sentence may be death) occurs where murder is committed "in the course or furtherance of … burglary or housebreaking" (s 2(1)(d) of the Offences Against the Person Act 1864, as amended in 1992).
The facts of Smith were refreshingly brief; they were summarised in the minority judgment, para 18, as "The appellant stood on a ladder against the outside of the deceased's house at night, pulled aside a curtain and a piece of plastic in a window, inserted his head and upper body through the window and struck the deceased a number of blows with a machete as she lay in her bed under the window."
There was no doubt that his entry with felonious intent constituted burglary. The question was whether the murder was in furtherance of the burglary. He committed the burglary with intent of murdering. The minority considered that the murder was therefore committed in the course of or in furtherance of the burglary. This, one might have thought, is the ordinary and natural meaning of the phrase. But no; another interpretation is possible: the offender had a single purpose of murder, and the burglary was in furtherance of the murder, not the other way around, so the murder was not within the definition of capital murder. This was the majority view.
There are two competing public policy justifications. The minority refer, para 23, to the purpose of the section as being:
"…to protect citizens from being murdered in their own homes by intruders who break in at night and to deter offenders from committing such murders. We consider that the legislature could not have intended that an intruder who broke into a house, which he believed to be unoccupied, for the purpose of stealing therein and then, coming upon the occupier, killed him or her, should be guilty of capital murder, but that a person who broke into a house with the express purpose of killing the occupant and did so should not be guilty of capital murder."
On the other hand, the majority refer, para 8 to:
"The vice in these cases, which was thought by …[Parliament] to justify the death penalty, was that the defendant resorted to killing his victim in the course or furtherance of committing the [lesser offence]. It was the wanton and cynical nature of the killing, the debasing in the context of a comparatively minor criminal act of the value that is to be attached to human life, that was regarded as particularly reprehensible."
The majority adhered to authority that required a "duality of purpose" before capital murder was committed: Lamey v The Queen [1996] 1 WLR 902 (PC). Such adherence to precedent is an illustration of formalism being dominant over pragmatism: see Thomas, "The Judicial Process" (2005). Thomas would remove all formalism from the law, whereas the current approach of courts is to employ either formalism, pragmatism, or a blend of them both, as seems appropriate.
This is also illustrated in Lamey, where the Board (which again included Lord Steyn) considered the interpretation of another paragraph of s 2(1) of the Jamaican legislation. This one, (f), includes within the definition of capital murder, any murder committed in furtherance of an act of terrorism. The unanimous judgment refers to the approach to penal statutes:
"6. The starting point in any consideration of section 2(1)(f) must be the fact that its object was to reduce the categories of murder which attracted the death penalty. It follows that a construction which produces little or no reductive effect is unlikely to be correct. Furthermore regard must be had to the general principle that a person should not be penalised and in particular should not be deprived of life or freedom unless under clear authority of law (Bennion's Statutory Interpretation, 2nd Edn. page 574)."
Note the slightly more restrictive approach endorsed here, compared with that taken in Karpavicius, above. In Lamey the conclusion was that paragraph (f) required two intents:
"8. … In their Lordships' view the paragraph requires there to be a double intent on the part of the murderer namely an intent to murder and an intent to create a state of fear in the public or a section thereof."
In Smith, this approach was applied to paragraph (d), and this reasoning is an example of formalist analysis.
Monday, November 07, 2005
Dealing with vagueness
Rights may be expressed in unavoidably vague terms, so how can they be said to be absolute? An example is the right not to be subjected to inhuman or degrading treatment. Does it make sense to say that this right is absolute?
This was the fundamental question that confronted the House of Lords last week in R v Secretary of State for the Home Department, ex parte Adam [2005] UKHL 66 (3 November 2005). It was decided that this right is absolute, once a threshold level of inhuman or degrading treatment has been reached, and that the threshold is relative to the circumstances of each case. Furthermore, the threshold is a high one (except where pain and suffering are deliberately inflicted).
It may be clearer to say that, once treatment can properly be described as inhuman or degrading, then there has been a breach of the right. To say that the threshold is a high one (in particular, Lord Bingham, para 7) is really a way of saying that inhuman or degrading treatment must be relatively harsh. How harsh, depends on the circumstances. On this point, Lord Hope quoted, at para 54, cases from the European Court of Human Rights:
"But the European Court has all along recognised that ill-treatment must attain a minimum level of severity if it is to fall within the scope of the expression "inhuman or degrading treatment or punishment": Ireland v United Kingdom (1978) 2 EHRR 25, 80, para 167; A v United Kingdom (1998) 27 EHRR 611, 629, para 20; V v United Kingdom (1999) 30 EHRR 121, para 71. In Pretty v United Kingdom 35 EHRR 1, 33, para 52, the court said:
‘As regards the types of 'treatment' which fall within the scope of article 3 of the Convention, the court's case law refers to 'ill-treatment' that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.’
It has also said that the assessment of this minimum is relative, as it depends on all the circumstances of the case such as the nature and context of the treatment or punishment that is in issue. The fact is that it is impossible by a simple definition to embrace all human conditions that will engage article 3."
Significantly, the House of Lords in Adam rejected the spectrum analysis applied in the Court of Appeal, pursuant to which the question whether inhuman or degrading treatment amounts to a breach of the right depends on whether it is nevertheless justified, for example by government policy. Lord Brown, while not actually approving the spectrum analysis, came close to applying it by reasoning that the motive for the treatment may be relevant (para 94). Lord Hope, while not expressly distancing himself from Lord Brown’s approach, pointed out, at para 55, that it would be wrong to include government policy in the assessment of the threshold as that would allow proportionality in by the back door.
Given, then, that the concept of inhuman or degrading treatment is not qualified by considerations of government policy, how close can we get to a definition of it? Lord Bingham put it like this, para 8-9:
"… The answer must in my opinion be: when it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life. Many factors may affect that judgment, including age, gender, mental and physical health and condition, any facilities or sources of support available to the applicant, the weather and time of year and the period for which the applicant has already suffered or is likely to continue to suffer privation.
[9] It is not in my opinion possible to formulate any simple test applicable in all cases. But if there were persuasive evidence that a late applicant was obliged to sleep in the street, save perhaps for a short and foreseeably finite period, or was seriously hungry, or unable to satisfy the most basic requirements of hygiene, the threshold would, in the ordinary way, be crossed."
We might like to consider whether this approach is applicable, by analogy, to the determination of fair trial issues. Whether the appropriate circumstances amount to unfairness can depend on the assessment of factors such as whether the accused would be able properly to challenge the prosecution case, and whether the case would be determined by an unbiased tribunal. Once that arises (not: once that threshold is crossed), then there is a breach of the absolute right to a fair trial.
Leaving readers with that thought, I return to celebrating the 25th anniversary of the publication of my first article, which appeared in England, in what was then the leading criminal journal in the common law world, the Criminal Law Review.
This was the fundamental question that confronted the House of Lords last week in R v Secretary of State for the Home Department, ex parte Adam [2005] UKHL 66 (3 November 2005). It was decided that this right is absolute, once a threshold level of inhuman or degrading treatment has been reached, and that the threshold is relative to the circumstances of each case. Furthermore, the threshold is a high one (except where pain and suffering are deliberately inflicted).
It may be clearer to say that, once treatment can properly be described as inhuman or degrading, then there has been a breach of the right. To say that the threshold is a high one (in particular, Lord Bingham, para 7) is really a way of saying that inhuman or degrading treatment must be relatively harsh. How harsh, depends on the circumstances. On this point, Lord Hope quoted, at para 54, cases from the European Court of Human Rights:
"But the European Court has all along recognised that ill-treatment must attain a minimum level of severity if it is to fall within the scope of the expression "inhuman or degrading treatment or punishment": Ireland v United Kingdom (1978) 2 EHRR 25, 80, para 167; A v United Kingdom (1998) 27 EHRR 611, 629, para 20; V v United Kingdom (1999) 30 EHRR 121, para 71. In Pretty v United Kingdom 35 EHRR 1, 33, para 52, the court said:
‘As regards the types of 'treatment' which fall within the scope of article 3 of the Convention, the court's case law refers to 'ill-treatment' that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.’
It has also said that the assessment of this minimum is relative, as it depends on all the circumstances of the case such as the nature and context of the treatment or punishment that is in issue. The fact is that it is impossible by a simple definition to embrace all human conditions that will engage article 3."
Significantly, the House of Lords in Adam rejected the spectrum analysis applied in the Court of Appeal, pursuant to which the question whether inhuman or degrading treatment amounts to a breach of the right depends on whether it is nevertheless justified, for example by government policy. Lord Brown, while not actually approving the spectrum analysis, came close to applying it by reasoning that the motive for the treatment may be relevant (para 94). Lord Hope, while not expressly distancing himself from Lord Brown’s approach, pointed out, at para 55, that it would be wrong to include government policy in the assessment of the threshold as that would allow proportionality in by the back door.
Given, then, that the concept of inhuman or degrading treatment is not qualified by considerations of government policy, how close can we get to a definition of it? Lord Bingham put it like this, para 8-9:
"… The answer must in my opinion be: when it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life. Many factors may affect that judgment, including age, gender, mental and physical health and condition, any facilities or sources of support available to the applicant, the weather and time of year and the period for which the applicant has already suffered or is likely to continue to suffer privation.
[9] It is not in my opinion possible to formulate any simple test applicable in all cases. But if there were persuasive evidence that a late applicant was obliged to sleep in the street, save perhaps for a short and foreseeably finite period, or was seriously hungry, or unable to satisfy the most basic requirements of hygiene, the threshold would, in the ordinary way, be crossed."
We might like to consider whether this approach is applicable, by analogy, to the determination of fair trial issues. Whether the appropriate circumstances amount to unfairness can depend on the assessment of factors such as whether the accused would be able properly to challenge the prosecution case, and whether the case would be determined by an unbiased tribunal. Once that arises (not: once that threshold is crossed), then there is a breach of the absolute right to a fair trial.
Leaving readers with that thought, I return to celebrating the 25th anniversary of the publication of my first article, which appeared in England, in what was then the leading criminal journal in the common law world, the Criminal Law Review.
Tuesday, October 25, 2005
Whose verdict?
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.
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 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.
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