This week’s decision of the European Court of Human Rights (Fourth Section) concerning Application no. 23276/04 by Saddam Hussein draws our attention to some characteristics of rights and jurisdiction.
Ideally, human rights should be enjoyed by everyone, no matter where they happen to be. Rights, however, mean nothing unless they can be enforced. Enforcement involves an assertion and exercise of jurisdiction by an authority with power. Rights ultimately depend on power.
It was argued for the Applicant that he had rights under the European Convention on Human Rights, because he was arrested in an area where jurisdiction was exercised by countries, as part of a coalition, that included countries that are bound by the Convention:
"He maintained that he fell within the jurisdiction of all the respondent States because they were the occupying powers in Iraq, because he was under their direct authority and control or because they were responsible for the acts of their agents abroad. He further argued that he remained within their jurisdiction following the transfer of authority, and his transfer, to the Iraqi authorities in June 2004 because the respondent States remained in de facto control in Iraq."
The Court rejected these submissions because they were not substantiated by evidence of the kind of power and control necessary to establish jurisdiction.
The sort of argument advanced in this case calls to mind the current international expansion of criminal jurisdiction without there being a need for territorial control. There are now numerous examples. One in New Zealand law is s 12C of the Misuse of Drugs Act 1975, which provides that every person commits an offence against this Act who, outside New Zealand, does or omits to do any act that would, if done or omitted in New Zealand, constitute an offence against s 6 (dealing with controlled drugs), s 9 (cultivation of prohibited plants), s 12A (manufacturing, producing, supplying equipment or precursor substances for use in manufacturing or cultivating), s 12AB (knowingly importing or exporting precursor substances for unlawful use), or s 12B (laundering proceeds of drug offences). Consequently, courts in New Zealand have jurisdiction over the proscribed behaviour no matter where in the world it occurs. The offender need not be a New Zealander, and the offence need have nothing to do with New Zealand. Once the offender is in New Zealand territory he can be charged. See also s 7A of the Crimes Act 1961 for other examples of this sort of extension of jurisdiction.
Jurisdiction to punish does not, as these examples show, depend on the exercise of territorial control. Are rights limited by territorial control?
If an Iraqi committed in Iraq what we in New Zealand call a drug dealing offence, and then came to New Zealand, it is likely that he would enjoy the protection of our Bill of Rights, and of the International Covenant on Civil and Political Rights, to which New Zealand is a signatory. So, if evidence had been obtained against him in Iraq by methods that would have contravened his rights if he were in New Zealand, a court in New Zealand would apply New Zealand law to determine the admissibility of that evidence on a charge for the offending against s 12C.
For an analogous illustration, see the rejection by English courts of evidence obtained by torture, including torture in a foreign country, discussed in these blogs on 11 August 2004.
In this sense, then, rights do extend beyond the limits of territorial control of the State in which they may be recognised. Was the European Court wrong to require a demonstration of power and control by the respondent States?
The difficulty faced by the Applicant is that the power to try him is asserted by the Iraqi Government, the existence of which is endorsed by the UN Security Council, and that Government is not a party to the ECHR which establishes an obligation to enforce the rights on which he sought to rely. To enforce those rights, the Applicant would have to be tried by a court in one of the respondent States.
Friday, March 17, 2006
Thursday, March 16, 2006
Legality v Common sense
Should one feel sorry for a person who, having served a sentence of imprisonment, has his convictions quashed on appeal because the evidence against him should not have been ruled admissible?
A concurrent sentence of two years imprisonment for two aggravated robberies was served by the appellant "S", a 15 year-old. Then, on appeal, two High Court judges sitting together held that the evidence of his guilt, which was entirely contained in his statement to the police, should have been excluded, and his convictions were quashed: S v Police 14/3/06, Baragwanath and Heath JJ, HC Auckland CRI 2004-404-515.
In reality, unless his confessions were false, S was guilty and, no doubt, he deserved his sentence. But that is to ignore the rule of law, which in this context means that punishment can only be imposed following due process of law. If by "due process" we mean upon lawful conviction, then S did not receive due process.
The problem arises from practicalities. Sentences take effect before rights of appeal against convictions have been exercised. Trials proceed before rights of appeal against evidential rulings have been exercised. Evidential rulings during a trial must be left for appeal after completion of the trial, otherwise trials would have to adjourn to allow appeals to be heard.
The obvious course, to minimise "false" imprisonment, would be to defer sentencing hearings until appeals had been determined, but that is often impractical: many convicted people would run away, or would have to be denied bail.
If there is no viable alternative to the present procedure, should people like S be compensated? How would compensation be measured? Our assessment of the value of due process may have to be balanced against the harm caused by the offender. The courts may be forced to say that the real remedy is the vindication that follows from the quashing of the conviction: see further, my blogs of 6 and 30 March 2005.
In S v Police, a police officer had told S that he wanted him to point out where burglaries had occurred, so that files could be cleared up, and that he would not be charged with committing them. Unexpectedly, from the officer’s point of view, S said he had committed a couple of aggravated robberies. He was interviewed about those, he confessed to them, and was charged. If his initial mention of them had been a "spontaneous" utterance, his consequential dealings with the police would not have been flawed, as the correct procedures for dealing with young people had been followed thereafter. However, if the initial reference to the robberies was not spontaneous, in the sense that it was made in reliance on the officer’s assurance that he would not be charged, then it was made in circumstances that were in breach of the statutory procedures, and what followed, although correct in itself, could be tainted.
The High Court held that the utterance was not spontaneous, but rather it had been made in reliance on the officer’s assurance. There was an error of procedure surrounding that, so the question became whether the following procedures, which led to the making of the confession, were indeed tainted.
The Court found it necessary, at this point, to consider the nature of causation (para 56 – 67). This came down to asking whether, in the circumstances, the non-spontaneous utterance had been the "effective cause" of the subsequent confession. It had, and because the use of an inadmissible statement to secure a subsequent statement was contrary to the policy of the legislation (para 59), both were inadmissible.
A lot turned, in this case, on how the judges assessed the circumstances. It could easily have been decided that S had, on receiving the advice to which he was entitled, decided to make a clean breast of everything, and that that decision, rather than the earlier indication that he would not be charged, was the effective cause of his confession. In cases like this, where the assessment of the circumstances seems to be finely balanced, it is tempting (but, in law, wrong) to think that the court was influenced by the common sense solution: S had served his sentence and may as well be relieved of the convictions to give him some incentive to obey the law.
Did the absence of any compensation for the "wrongful" imprisonment facilitate this balancing of the circumstances?
A concurrent sentence of two years imprisonment for two aggravated robberies was served by the appellant "S", a 15 year-old. Then, on appeal, two High Court judges sitting together held that the evidence of his guilt, which was entirely contained in his statement to the police, should have been excluded, and his convictions were quashed: S v Police 14/3/06, Baragwanath and Heath JJ, HC Auckland CRI 2004-404-515.
In reality, unless his confessions were false, S was guilty and, no doubt, he deserved his sentence. But that is to ignore the rule of law, which in this context means that punishment can only be imposed following due process of law. If by "due process" we mean upon lawful conviction, then S did not receive due process.
The problem arises from practicalities. Sentences take effect before rights of appeal against convictions have been exercised. Trials proceed before rights of appeal against evidential rulings have been exercised. Evidential rulings during a trial must be left for appeal after completion of the trial, otherwise trials would have to adjourn to allow appeals to be heard.
The obvious course, to minimise "false" imprisonment, would be to defer sentencing hearings until appeals had been determined, but that is often impractical: many convicted people would run away, or would have to be denied bail.
If there is no viable alternative to the present procedure, should people like S be compensated? How would compensation be measured? Our assessment of the value of due process may have to be balanced against the harm caused by the offender. The courts may be forced to say that the real remedy is the vindication that follows from the quashing of the conviction: see further, my blogs of 6 and 30 March 2005.
In S v Police, a police officer had told S that he wanted him to point out where burglaries had occurred, so that files could be cleared up, and that he would not be charged with committing them. Unexpectedly, from the officer’s point of view, S said he had committed a couple of aggravated robberies. He was interviewed about those, he confessed to them, and was charged. If his initial mention of them had been a "spontaneous" utterance, his consequential dealings with the police would not have been flawed, as the correct procedures for dealing with young people had been followed thereafter. However, if the initial reference to the robberies was not spontaneous, in the sense that it was made in reliance on the officer’s assurance that he would not be charged, then it was made in circumstances that were in breach of the statutory procedures, and what followed, although correct in itself, could be tainted.
The High Court held that the utterance was not spontaneous, but rather it had been made in reliance on the officer’s assurance. There was an error of procedure surrounding that, so the question became whether the following procedures, which led to the making of the confession, were indeed tainted.
The Court found it necessary, at this point, to consider the nature of causation (para 56 – 67). This came down to asking whether, in the circumstances, the non-spontaneous utterance had been the "effective cause" of the subsequent confession. It had, and because the use of an inadmissible statement to secure a subsequent statement was contrary to the policy of the legislation (para 59), both were inadmissible.
A lot turned, in this case, on how the judges assessed the circumstances. It could easily have been decided that S had, on receiving the advice to which he was entitled, decided to make a clean breast of everything, and that that decision, rather than the earlier indication that he would not be charged, was the effective cause of his confession. In cases like this, where the assessment of the circumstances seems to be finely balanced, it is tempting (but, in law, wrong) to think that the court was influenced by the common sense solution: S had served his sentence and may as well be relieved of the convictions to give him some incentive to obey the law.
Did the absence of any compensation for the "wrongful" imprisonment facilitate this balancing of the circumstances?
Tuesday, March 14, 2006
Inferences of innocence
A commonly advanced ground of appeal against conviction is that the evidence supported an inference of innocence and the judge did not correctly tell the jury how they should deal with inferences.
We have passed through a period when much attention was given to what inferences are and how they should be handled. Things got rather complex as efforts were made to be precise about this. The relationship between the process of drawing inferences, and the process of deciding whether something has been proved, was at the centre of this complexity.
Some facts are proved by direct evidence: for example, a witness says that he saw something happen. Other facts are inferred from direct evidence: the facts that are directly proved suggest that something else is true. In turn, these inferred facts may combine, with other inferred facts, or with directly proved facts, or with a mixture of inferred facts and direct facts, to enable a further inference that something else is true. Wherever an inference occurs, it is usually described as an ordinary process of logical thought.
As to proof, it is relatively easy to see that evidence of directly observed facts may prove those facts, to the necessary standard. If the fact is an element of the alleged offence, then, when the jury considers all the evidence in the case, it must decide whether that element has been proved beyond reasonable doubt. But, in relation to other facts, (and with some exceptions), no particular standard of proof is required. The jury does not have to be instructed by the judge about the standard to which they must be satisfied that inferred facts are proved before they can use them to support other inferences, such as an inference of an element of the offence, as long as, ultimately, the jury tests the proof of the elements of the offence against the standard of beyond reasonable doubt.
So, what about the inferences supporting innocence? In what has been regarded as the leading case on inferences in New Zealand, R v Puttick (1985) 1 CRNZ 644 (CA) the Court summarised the position:
"Inference is simply one of the mental processes which may be used by a jury in carrying out its primary task of assessing the evidence and deciding whether or not it establishes the guilt of the accused beyond reasonable doubt. Where the charge has several essential elements, proof of guilt necessarily involves proof of each of those elements to the same standard. It does not, however, require proof beyond reasonable doubt of every fact which may be relevant to proof of each essential element.
… It must be equally unhelpful to tell jurors that, if proven facts support two inferences of equal weight, they should accept one and reject the other. To draw an inference either way from such facts would be pure speculation. Jurors should not be directed to accept or reject inferences when they have no logical basis for either step."
This could suggest (although we can be sure the Court did not intend this reading) that an inference supporting innocence can neither be accepted nor rejected if it is equal in weight to an inference of guilt.
A clearer account has been given in R v Seekamut 10/7/03, CA82/03:
"If on an objective basis that has regard to all the circumstances, a rational alternative to guilt is not excluded, there must for that reason be a reasonable doubt. But the mere fact that some of the circumstances might arguably permit an inference inconsistent with guilt is not enough. The jury’s function is to assess the whole of the evidence and in so doing may conclude that a suggested alternative is not reasonably tenable."
Similarly, yesterday the Privy Council in Taylor v R (Jamaica) [2006] UKPC 12 (13 March 2006), para 18, held:
"Their Lordships agree with the submission made on behalf of the appellant that in the circumstances of this case it was essential that the judge … spell out the possible inferences to be drawn … and instruct them that they must rule out all inferences consistent with innocence before they could be satisfied that the inference of guilt has been proved correct."
This could be read as suggesting a slightly different approach to that in Seekamut: instead of treating the evidence as all being in a big pool, to be considered in the round to see what ends up being proved, the process alluded to in Taylor seems to be one of deciding first whether inferences of innocence can be ruled out, then, if they are, turning to see whether guilt has been proved. We might, however, reasonably wonder whether this explication is correct, insofar as it seems to place a burden of proof on the defence, and it also seems to make an artificial distinction between stages of the reasoning process. The correct approach would be to tell the jury that, if after considering the evidence, they are left with a reasonable doubt about the accused's guilt, they must find him not guilty.
Because the judge in Taylor failed properly to direct the jury in this regard, the appeal against conviction was allowed and the case remitted to determine whether there should be a retrial.
We have passed through a period when much attention was given to what inferences are and how they should be handled. Things got rather complex as efforts were made to be precise about this. The relationship between the process of drawing inferences, and the process of deciding whether something has been proved, was at the centre of this complexity.
Some facts are proved by direct evidence: for example, a witness says that he saw something happen. Other facts are inferred from direct evidence: the facts that are directly proved suggest that something else is true. In turn, these inferred facts may combine, with other inferred facts, or with directly proved facts, or with a mixture of inferred facts and direct facts, to enable a further inference that something else is true. Wherever an inference occurs, it is usually described as an ordinary process of logical thought.
As to proof, it is relatively easy to see that evidence of directly observed facts may prove those facts, to the necessary standard. If the fact is an element of the alleged offence, then, when the jury considers all the evidence in the case, it must decide whether that element has been proved beyond reasonable doubt. But, in relation to other facts, (and with some exceptions), no particular standard of proof is required. The jury does not have to be instructed by the judge about the standard to which they must be satisfied that inferred facts are proved before they can use them to support other inferences, such as an inference of an element of the offence, as long as, ultimately, the jury tests the proof of the elements of the offence against the standard of beyond reasonable doubt.
So, what about the inferences supporting innocence? In what has been regarded as the leading case on inferences in New Zealand, R v Puttick (1985) 1 CRNZ 644 (CA) the Court summarised the position:
"Inference is simply one of the mental processes which may be used by a jury in carrying out its primary task of assessing the evidence and deciding whether or not it establishes the guilt of the accused beyond reasonable doubt. Where the charge has several essential elements, proof of guilt necessarily involves proof of each of those elements to the same standard. It does not, however, require proof beyond reasonable doubt of every fact which may be relevant to proof of each essential element.
… It must be equally unhelpful to tell jurors that, if proven facts support two inferences of equal weight, they should accept one and reject the other. To draw an inference either way from such facts would be pure speculation. Jurors should not be directed to accept or reject inferences when they have no logical basis for either step."
This could suggest (although we can be sure the Court did not intend this reading) that an inference supporting innocence can neither be accepted nor rejected if it is equal in weight to an inference of guilt.
A clearer account has been given in R v Seekamut 10/7/03, CA82/03:
"If on an objective basis that has regard to all the circumstances, a rational alternative to guilt is not excluded, there must for that reason be a reasonable doubt. But the mere fact that some of the circumstances might arguably permit an inference inconsistent with guilt is not enough. The jury’s function is to assess the whole of the evidence and in so doing may conclude that a suggested alternative is not reasonably tenable."
Similarly, yesterday the Privy Council in Taylor v R (Jamaica) [2006] UKPC 12 (13 March 2006), para 18, held:
"Their Lordships agree with the submission made on behalf of the appellant that in the circumstances of this case it was essential that the judge … spell out the possible inferences to be drawn … and instruct them that they must rule out all inferences consistent with innocence before they could be satisfied that the inference of guilt has been proved correct."
This could be read as suggesting a slightly different approach to that in Seekamut: instead of treating the evidence as all being in a big pool, to be considered in the round to see what ends up being proved, the process alluded to in Taylor seems to be one of deciding first whether inferences of innocence can be ruled out, then, if they are, turning to see whether guilt has been proved. We might, however, reasonably wonder whether this explication is correct, insofar as it seems to place a burden of proof on the defence, and it also seems to make an artificial distinction between stages of the reasoning process. The correct approach would be to tell the jury that, if after considering the evidence, they are left with a reasonable doubt about the accused's guilt, they must find him not guilty.
Because the judge in Taylor failed properly to direct the jury in this regard, the appeal against conviction was allowed and the case remitted to determine whether there should be a retrial.
Monday, March 13, 2006
Metaphysical laws
Can the law have been other than it was understood to have been at the time?
If it can, are we currently operating under a misunderstanding of the law?
Are there points of law that we are mistakenly taking for granted?
If we all think that the law says one thing, can we be wrong?
Can some future court say we were wrong, and that the law said something else?
The first of these questions concerned the Privy Council last week in Bowe v R (Bahamas) [2006] UKPC 9 (8 March 2006). The issue involved detailed analysis of legislation, but in essence the question came down to whether the death penalty was mandatory in the Bahamas in 1973, notwithstanding that cases had been conducted on the basis that it was.
The Privy Council answered the conundrum this way (para 42):
"… it took some time for the legal effect of entrenched human rights guarantees to be appreciated, not because the meaning of the rights changed but because the jurisprudence on human rights and constitutional adjudication was unfamiliar and, by some courts, resisted."
Further, it would be wrong to answer the question by now trying to assess what chance the argument would have had of being accepted in 1973.
Instead,
"The task is to ascertain what the law, correctly understood, was at the relevant time, unaffected by later legal developments, since that is plainly the law which should have been declared had the challenge been presented then." (ibid)
So,
"It matters little what lawyers and judges might have thought in their own minds: in the context of a codified Constitution, what matters is what the Constitution says and what it has been interpreted to mean. In 1973 there was no good authority contrary to the appellants' argument, and much to support it. In the final resort, the most important consideration is that those who are entitled to the protection of human rights guarantees should enjoy that protection. The appellants should not be denied such protection because, a quarter century before they were condemned to death, the law was not fully understood." (ibid)
At this point, it seems to be only a subsidiary consideration that there was no authority to the contrary as at 1973, as the governing matter ("the final resort") is that those who are entitled to human rights protection should be entitled to enjoy that protection. Question-begging, of course, as the issue was whether the people were (not "are") entitled to that protection.
Not to worry, for in Bowe the death sentences were quashed because the law as at 1973 was that the sentence was discretionary, not mandatory.
This interpretation was therefore carried through to the present pursuant to the legislative provisions. The cases of the two appellants were remitted for consideration of the appropriate penalty.
It seems, consequently, that we are governed by laws that we have not yet discovered, and may not be discovered until we are all dead.
If it can, are we currently operating under a misunderstanding of the law?
Are there points of law that we are mistakenly taking for granted?
If we all think that the law says one thing, can we be wrong?
Can some future court say we were wrong, and that the law said something else?
The first of these questions concerned the Privy Council last week in Bowe v R (Bahamas) [2006] UKPC 9 (8 March 2006). The issue involved detailed analysis of legislation, but in essence the question came down to whether the death penalty was mandatory in the Bahamas in 1973, notwithstanding that cases had been conducted on the basis that it was.
The Privy Council answered the conundrum this way (para 42):
"… it took some time for the legal effect of entrenched human rights guarantees to be appreciated, not because the meaning of the rights changed but because the jurisprudence on human rights and constitutional adjudication was unfamiliar and, by some courts, resisted."
Further, it would be wrong to answer the question by now trying to assess what chance the argument would have had of being accepted in 1973.
Instead,
"The task is to ascertain what the law, correctly understood, was at the relevant time, unaffected by later legal developments, since that is plainly the law which should have been declared had the challenge been presented then." (ibid)
So,
"It matters little what lawyers and judges might have thought in their own minds: in the context of a codified Constitution, what matters is what the Constitution says and what it has been interpreted to mean. In 1973 there was no good authority contrary to the appellants' argument, and much to support it. In the final resort, the most important consideration is that those who are entitled to the protection of human rights guarantees should enjoy that protection. The appellants should not be denied such protection because, a quarter century before they were condemned to death, the law was not fully understood." (ibid)
At this point, it seems to be only a subsidiary consideration that there was no authority to the contrary as at 1973, as the governing matter ("the final resort") is that those who are entitled to human rights protection should be entitled to enjoy that protection. Question-begging, of course, as the issue was whether the people were (not "are") entitled to that protection.
Not to worry, for in Bowe the death sentences were quashed because the law as at 1973 was that the sentence was discretionary, not mandatory.
This interpretation was therefore carried through to the present pursuant to the legislative provisions. The cases of the two appellants were remitted for consideration of the appropriate penalty.
It seems, consequently, that we are governed by laws that we have not yet discovered, and may not be discovered until we are all dead.
Thursday, March 09, 2006
What a "fair trial" means
Today, the High Court of Australia decided Nudd v R [2006] HCA 9 (9 March 2006), a case with helpful dicta on the meaning of "fair trial". I have recently noted cases concerning what is a substantial miscarriage of justice (see Index), and have described the two ways in which miscarriages of justice may be considered "substantial" for the purposes of the proviso: by depriving the accused of a real chance of an acquittal, or by causing the trial to be unfair.
Nudd recognises that, even though the evidence of guilt may be overwhelming, there may be rare cases where there has nevertheless been a miscarriage of justice because the trial was rendered unfair to the accused: see Gleeson CJ at para 6, Kirby J at 87 and 100, Callinan and Heydon JJ at 158. The other judges, Gummow and Hayne JJ jointly decided that no miscarriage of justice had been demonstrated to have occurred (para 25). Gleeson CJ agreed with that conclusion.
Kirby J treated the outcome aspect (the depriving of the accused of a real chance of acquittal) in the same way as the other judges, holding that on any approach, there was no prospect of acquittal as the prosecution case was overwhelming, but he also gave the most detailed consideration to the other aspect, that of the fairness of the trial. He found this the more difficult point to decide (para 106), because the defects at trial (counsel’s serious incompetence, especially in not knowing the law and in failing to take detailed instructions and consequently to advise the client) were so serious. He held that this case was "borderline" on the question of fairness (para 109), but that the decisive point was that the evidence against the accused was conclusive of guilt.
This might be thought to muddy the distinction between the outcome aspect and the fairness aspect of substantial miscarriage of justice. However, I suggest that Kirby J’s reasoning is essentially that, from the point of view of fairness, the errors were inconsequential, because the defence in the trial had (and could only have) been to put the prosecution to proof, and the judge in her summing up had properly directed the jury on the law.
I have previously suggested that a fair trial is one where the law is accurately applied to the facts determined without bias. Applying this to Nudd, we can say that the errors at trial (counsel’s incompetence) did not cause the law to be applied inaccurately, nor did it cause the jury to be biased against the accused.
Nudd recognises that, even though the evidence of guilt may be overwhelming, there may be rare cases where there has nevertheless been a miscarriage of justice because the trial was rendered unfair to the accused: see Gleeson CJ at para 6, Kirby J at 87 and 100, Callinan and Heydon JJ at 158. The other judges, Gummow and Hayne JJ jointly decided that no miscarriage of justice had been demonstrated to have occurred (para 25). Gleeson CJ agreed with that conclusion.
Kirby J treated the outcome aspect (the depriving of the accused of a real chance of acquittal) in the same way as the other judges, holding that on any approach, there was no prospect of acquittal as the prosecution case was overwhelming, but he also gave the most detailed consideration to the other aspect, that of the fairness of the trial. He found this the more difficult point to decide (para 106), because the defects at trial (counsel’s serious incompetence, especially in not knowing the law and in failing to take detailed instructions and consequently to advise the client) were so serious. He held that this case was "borderline" on the question of fairness (para 109), but that the decisive point was that the evidence against the accused was conclusive of guilt.
This might be thought to muddy the distinction between the outcome aspect and the fairness aspect of substantial miscarriage of justice. However, I suggest that Kirby J’s reasoning is essentially that, from the point of view of fairness, the errors were inconsequential, because the defence in the trial had (and could only have) been to put the prosecution to proof, and the judge in her summing up had properly directed the jury on the law.
I have previously suggested that a fair trial is one where the law is accurately applied to the facts determined without bias. Applying this to Nudd, we can say that the errors at trial (counsel’s incompetence) did not cause the law to be applied inaccurately, nor did it cause the jury to be biased against the accused.
Thursday, March 02, 2006
Bad technique!
Sometimes, evidence that the accused has been convicted for committing other offences is admissible to prove that he committed the offence with which he is now charged. Or again, allegations that he committed other offences may be used to prove that he committed this one. Or, yet again, allegations of offences for which he has been acquitted may be used as evidence that he is guilty of this one.
This sort of evidence, called similar fact evidence, should only be allowed to be used in exceptional circumstances, for the obvious reason that it will have a tendency to bias the tribunal of fact (usually the jury) against the accused.
It must be said that the current law on similar fact evidence in New Zealand is in need of clarification. This is largely due to the decision of the Court of Appeal in R v Holtz [2003] 1 NZLR 667; (2002) 20 CRNZ 14 (CA), where the criterion for admissibility was held to be whether the probative value of the similar fact evidence outweighs its illegitimately prejudicial effect:
"One of the problems with evidence of past conduct, whether labelled evidence of bad character, propensity evidence or similar fact evidence, is the tendency to look for principles of admissibility applicable to all such evidence in all circumstances. At a very general level there is the broad principle that to be admissible the evidence must be such that its probative value outweighs illegitimate prejudice to the accused in having adduced evidence of past conduct that might be given undue weight or used improperly in reasoning towards guilt of the crime charged. It is in the application of that general principle in the circumstances of particular cases that difficulties arise. Often this is because the approach adopted in one set of circumstances is taken as the rule to be applied in a quite different case. Because of the wide variation in circumstances in which the issue calls for consideration, the preferable approach in a particular case is that which determines and weighs probative value and potential prejudice in the circumstances. It is necessary to consider the nature of the evidence, what it is sought to prove, what other evidence there is and its relationship and whether the evidence relates to prior proved offending or to concurrent charges, all against the underlying dangers inherent in propensity or bad character evidence." (para 35)
The so-called weighing of probative value against prejudicial effect is problematic conceptually, and has been criticised in the leading Australian case on similar fact evidence, Pfennig v R (1995) 182 CLR 461 per McHugh J on the basis that these were "incommensurables", and the Supreme Court of Canada has agreed with his criticism, in R v Handy (2002) 164 CCC (3d) 481 (SCC); 213 DLR (4th) 385, at paras 148-149. And I have written an article on it: "Probative value, illegitimate prejudice and the accused's right to a fair trial" (2006) 29 Crim LJ 8.
In Phillips v R [2006] HCA 4 (1 March 2006) the High Court of Australia has confirmed that Pfennig continues to be the authority on similar fact evidence, binding on Australian courts. It issued a thinly-veiled rebuke to courts that sought to find reasons for departing from Pfennig, at para 60:
"It must be said at once that it is for this Court alone to determine whether one of its previous decisions is to be departed from or overruled …. Of course, in criminal cases it is often necessary for trial judges and Courts of Criminal Appeal to elaborate upon rulings of this Court; to gather together rules expressed in several cases; to apply rules to different facts; and sometimes to reconsider rules affected by later legislation. Within spaces left by the binding determinations of this Court, trial judges and intermediate courts retain their proper functions …. However, these do not extend to varying, qualifying or ignoring a rule established by a decision of this Court. Such a rule is binding on all courts and judges in the Australian Judicature."
One misinterpretation of Pfennig, alluded to briefly in Phillips at para 62, is that it is appropriate and sufficient to regard similar fact evidence as a form of circumstantial evidence. This is what had occurred in Holtz. See Adams on Criminal Law, Ch2.8.19(5), and my blog entry for 14 October 2004. A danger of that view is that it leaves the process of drawing inferences unelaborated by particular directions to the jury, as authorities on inferences tend to avoid such assistance. It also tempts the court to admit the evidence, as circumstantial evidence is just a category of admissible evidence.
Phillips and Pfennig hold that similar fact evidence must pass a high threshold before it can be admitted (para 79):
"Criminal trials in this country are ordinarily focused with high particularity upon specified offences. They are not, as such, a trial of the accused's character or propensity towards criminal conduct. That is why, in order to permit the admission of evidence relevant to several different offences, the common law requires a high threshold to be passed. The evidence must possess particular probative qualities; a strong degree of probative force; a really material bearing on the issues to be decided. That threshold was not met in this case. It was therefore necessary that the allegations, formulated in the charges brought against the appellant, be separately considered by different juries, uncontaminated by knowledge of other complaints. This is what Pfennig and other decisions of this Court require. To the extent that O'Keefe [a Queensland Court of Appeal decision critical of the High Court of Australia's judgments in Pfennig] or other authority suggests otherwise, it does not represent the law. No other outcome would be compatible with the fair trial of the appellant."
Phillips had been charged with 8 counts of sexual offending, and had unsuccessfully sought severance of those. Joinder was permitted on the basis that the evidence on each charge was admissible on the others, as evidence of similar facts. The High Court summarised the evidence and its conclusion in this way (para 56):
"The similarities relied on were not merely not "striking", they were entirely unremarkable. That a male teenager might seek sexual activity with girls about his own age with most of whom he was acquainted, and seek it consensually in the first instance, is not particularly probative. Nor is the appellant's desire for oral sex, his approaches to the complainants on social occasions and after some of them had ingested alcohol or other drugs, his engineering of opportunities for them to be alone with him, and the different degrees of violence he employed in some instances. His recklessness in persisting with this conduct near other people who might be attracted by vocal protests is also unremarkable and not uncommon."
Bad technique, indeed, as it got Phillips to court.
The trial judge, and the Queensland Court of Appeal, had reasoned that so many similar complaints could not have arisen by chance, so together they had credibility. The High Court was not so slap-dash. It identified the issue on which the challenged evidence was relevant as being consent, and it pointed out that the non-consent of one complainant could not possibly prove that another had not consented.
One thing this case illustrates is the way judges can lose their reasoning powers in cases of alleged sexual misconduct. There is, in other words, a grave danger of judicial bias (probably unconscious bias) in such cases. In those circumstances, clear rules, rather than discretions, are needed concerning the admissibility of evidence of other alleged misconduct. The Pfennig rule is that similar fact evidence is not admissible unless there is no reasonable view of it that is consistent with the accused’s innocence. It must have strong probative force, a really material bearing on the issues to be decided; its probative force must clearly transcend its merely prejudicial effect; it must have a sufficient nexus, some specific connection, with the issues; its probative force must be such as to make it just to admit it (Phillips, para 54). None of those criteria were met in Phillips (para 55).
It is sad to note that in New Zealand, the Evidence Bill proposes an approach to similar fact evidence (or, in its terminology, "propensity evidence") that applies the probative value/prejudicial effect weighing, criticism of which is noted above. Clause 39(1) of the Bill provides:
"The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant."
This proposal does nothing to improve our law on this point.
This sort of evidence, called similar fact evidence, should only be allowed to be used in exceptional circumstances, for the obvious reason that it will have a tendency to bias the tribunal of fact (usually the jury) against the accused.
It must be said that the current law on similar fact evidence in New Zealand is in need of clarification. This is largely due to the decision of the Court of Appeal in R v Holtz [2003] 1 NZLR 667; (2002) 20 CRNZ 14 (CA), where the criterion for admissibility was held to be whether the probative value of the similar fact evidence outweighs its illegitimately prejudicial effect:
"One of the problems with evidence of past conduct, whether labelled evidence of bad character, propensity evidence or similar fact evidence, is the tendency to look for principles of admissibility applicable to all such evidence in all circumstances. At a very general level there is the broad principle that to be admissible the evidence must be such that its probative value outweighs illegitimate prejudice to the accused in having adduced evidence of past conduct that might be given undue weight or used improperly in reasoning towards guilt of the crime charged. It is in the application of that general principle in the circumstances of particular cases that difficulties arise. Often this is because the approach adopted in one set of circumstances is taken as the rule to be applied in a quite different case. Because of the wide variation in circumstances in which the issue calls for consideration, the preferable approach in a particular case is that which determines and weighs probative value and potential prejudice in the circumstances. It is necessary to consider the nature of the evidence, what it is sought to prove, what other evidence there is and its relationship and whether the evidence relates to prior proved offending or to concurrent charges, all against the underlying dangers inherent in propensity or bad character evidence." (para 35)
The so-called weighing of probative value against prejudicial effect is problematic conceptually, and has been criticised in the leading Australian case on similar fact evidence, Pfennig v R (1995) 182 CLR 461 per McHugh J on the basis that these were "incommensurables", and the Supreme Court of Canada has agreed with his criticism, in R v Handy (2002) 164 CCC (3d) 481 (SCC); 213 DLR (4th) 385, at paras 148-149. And I have written an article on it: "Probative value, illegitimate prejudice and the accused's right to a fair trial" (2006) 29 Crim LJ 8.
In Phillips v R [2006] HCA 4 (1 March 2006) the High Court of Australia has confirmed that Pfennig continues to be the authority on similar fact evidence, binding on Australian courts. It issued a thinly-veiled rebuke to courts that sought to find reasons for departing from Pfennig, at para 60:
"It must be said at once that it is for this Court alone to determine whether one of its previous decisions is to be departed from or overruled …. Of course, in criminal cases it is often necessary for trial judges and Courts of Criminal Appeal to elaborate upon rulings of this Court; to gather together rules expressed in several cases; to apply rules to different facts; and sometimes to reconsider rules affected by later legislation. Within spaces left by the binding determinations of this Court, trial judges and intermediate courts retain their proper functions …. However, these do not extend to varying, qualifying or ignoring a rule established by a decision of this Court. Such a rule is binding on all courts and judges in the Australian Judicature."
One misinterpretation of Pfennig, alluded to briefly in Phillips at para 62, is that it is appropriate and sufficient to regard similar fact evidence as a form of circumstantial evidence. This is what had occurred in Holtz. See Adams on Criminal Law, Ch2.8.19(5), and my blog entry for 14 October 2004. A danger of that view is that it leaves the process of drawing inferences unelaborated by particular directions to the jury, as authorities on inferences tend to avoid such assistance. It also tempts the court to admit the evidence, as circumstantial evidence is just a category of admissible evidence.
Phillips and Pfennig hold that similar fact evidence must pass a high threshold before it can be admitted (para 79):
"Criminal trials in this country are ordinarily focused with high particularity upon specified offences. They are not, as such, a trial of the accused's character or propensity towards criminal conduct. That is why, in order to permit the admission of evidence relevant to several different offences, the common law requires a high threshold to be passed. The evidence must possess particular probative qualities; a strong degree of probative force; a really material bearing on the issues to be decided. That threshold was not met in this case. It was therefore necessary that the allegations, formulated in the charges brought against the appellant, be separately considered by different juries, uncontaminated by knowledge of other complaints. This is what Pfennig and other decisions of this Court require. To the extent that O'Keefe [a Queensland Court of Appeal decision critical of the High Court of Australia's judgments in Pfennig] or other authority suggests otherwise, it does not represent the law. No other outcome would be compatible with the fair trial of the appellant."
Phillips had been charged with 8 counts of sexual offending, and had unsuccessfully sought severance of those. Joinder was permitted on the basis that the evidence on each charge was admissible on the others, as evidence of similar facts. The High Court summarised the evidence and its conclusion in this way (para 56):
"The similarities relied on were not merely not "striking", they were entirely unremarkable. That a male teenager might seek sexual activity with girls about his own age with most of whom he was acquainted, and seek it consensually in the first instance, is not particularly probative. Nor is the appellant's desire for oral sex, his approaches to the complainants on social occasions and after some of them had ingested alcohol or other drugs, his engineering of opportunities for them to be alone with him, and the different degrees of violence he employed in some instances. His recklessness in persisting with this conduct near other people who might be attracted by vocal protests is also unremarkable and not uncommon."
Bad technique, indeed, as it got Phillips to court.
The trial judge, and the Queensland Court of Appeal, had reasoned that so many similar complaints could not have arisen by chance, so together they had credibility. The High Court was not so slap-dash. It identified the issue on which the challenged evidence was relevant as being consent, and it pointed out that the non-consent of one complainant could not possibly prove that another had not consented.
One thing this case illustrates is the way judges can lose their reasoning powers in cases of alleged sexual misconduct. There is, in other words, a grave danger of judicial bias (probably unconscious bias) in such cases. In those circumstances, clear rules, rather than discretions, are needed concerning the admissibility of evidence of other alleged misconduct. The Pfennig rule is that similar fact evidence is not admissible unless there is no reasonable view of it that is consistent with the accused’s innocence. It must have strong probative force, a really material bearing on the issues to be decided; its probative force must clearly transcend its merely prejudicial effect; it must have a sufficient nexus, some specific connection, with the issues; its probative force must be such as to make it just to admit it (Phillips, para 54). None of those criteria were met in Phillips (para 55).
It is sad to note that in New Zealand, the Evidence Bill proposes an approach to similar fact evidence (or, in its terminology, "propensity evidence") that applies the probative value/prejudicial effect weighing, criticism of which is noted above. Clause 39(1) of the Bill provides:
"The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant."
This proposal does nothing to improve our law on this point.
Monday, February 20, 2006
Overcoming the void
As everyone knows, the law of Scotland has its origins in Roman-Dutch law. Its technical language can look a little strange to English jurists. A recent Privy Council decision on Scottish law illustrates how light can be shed on common issues. Here, in Ruddy and others v Procurator Fiscal [2006] UKPC D2 (6 February 2006), the Judicial Committee leant heavily on the expertise of Lord Rodger, all members agreeing with his opinion.
I will describe the case, insofar as I can, in English.
If a judicial proceeding is fundamentally flawed, so that in oft-used terminology it may be called "null and void", or "a nullity", may its result nevertheless be regarded as final?
These appeals concerned convictions and sentences that had been imposed by a tribunal that had no jurisdiction to act. They therefore, it was agreed, were in breach of the appellants’ rights to a "hearing" under s 6 of the ECHR. They had delayed 2 years before complaining of that by bringing the actions that resulted in these appeals.
Two concepts that operate in the context of errors are waiver and acquiescence. Waiver is active, and acquiescence is passive, acceptance that the error does not matter. They can operate where there is delay in seeking a remedy. In the absence of an applicable time limit on seeking redress, action must be taken within a "reasonable" time, as policy favours finality and stability. Acquiescence may be inferred from delay and the circumstances of the case (see paras 28, 37, 38, 46).
Here, if objection had been taken promptly, re-hearings could have been ordered before properly constituted tribunals and proper convictions would, inevitably, have been obtained (para 41). If a remedy was now allowed, justice might not be done in view of the effect of the passage of time.
Lord Rodger pointed to examples where errors causing the proceedings to be a "nullity" were nevertheless cured by acquiescence (para 48). Central to the acceptability of this is reasoning along these lines: a defect can be waived before the conclusion of the proceeding, so there is no reason why acquiescence after it cannot be effective (para 50). Lord Carswell elaborated this at para 58, "…in either case … [the defendant] is representing, expressly or tacitly, that the court is acceptable to him …".
In essence, a flaw in the proceedings can be waived or acquiesced in, even if it is fundamental.
This is potentially relevant to a proceeding which the Supreme Court of New Zealand will hear this week: Hansen v R (previously noted in these blogs on 19 September 2005). If the Court decides that the reverse onus provision in question, s 6(6) of the Misuse of Drugs Act 1975, puts merely an evidential, not a legal, burden of proof on the defence, questions may arise about convictions that have been incurred in trials where juries have been directed differently. While a misdirection on the standard of proof will normally result in the quashing of a conviction, it is, arguably, not so fundamental an objection as lack of jurisdiction by the tribunal. Nevertheless, given that it was possible to anticipate that the New Zealand law on reverse onuses would be brought into line with English law, can it now be said that people who were convicted before the change (assuming, of course, that Hansen does change the law) acquiesced in the error?
A straightforward solution to this would be to say that Hansen changes (again, assuming that it will change) the law from the date it is decided, and that earlier trials (but not Hansen’s, as these are still his proceedings) where heard under the law as it was then correctly understood to be.
I will describe the case, insofar as I can, in English.
If a judicial proceeding is fundamentally flawed, so that in oft-used terminology it may be called "null and void", or "a nullity", may its result nevertheless be regarded as final?
These appeals concerned convictions and sentences that had been imposed by a tribunal that had no jurisdiction to act. They therefore, it was agreed, were in breach of the appellants’ rights to a "hearing" under s 6 of the ECHR. They had delayed 2 years before complaining of that by bringing the actions that resulted in these appeals.
Two concepts that operate in the context of errors are waiver and acquiescence. Waiver is active, and acquiescence is passive, acceptance that the error does not matter. They can operate where there is delay in seeking a remedy. In the absence of an applicable time limit on seeking redress, action must be taken within a "reasonable" time, as policy favours finality and stability. Acquiescence may be inferred from delay and the circumstances of the case (see paras 28, 37, 38, 46).
Here, if objection had been taken promptly, re-hearings could have been ordered before properly constituted tribunals and proper convictions would, inevitably, have been obtained (para 41). If a remedy was now allowed, justice might not be done in view of the effect of the passage of time.
Lord Rodger pointed to examples where errors causing the proceedings to be a "nullity" were nevertheless cured by acquiescence (para 48). Central to the acceptability of this is reasoning along these lines: a defect can be waived before the conclusion of the proceeding, so there is no reason why acquiescence after it cannot be effective (para 50). Lord Carswell elaborated this at para 58, "…in either case … [the defendant] is representing, expressly or tacitly, that the court is acceptable to him …".
In essence, a flaw in the proceedings can be waived or acquiesced in, even if it is fundamental.
This is potentially relevant to a proceeding which the Supreme Court of New Zealand will hear this week: Hansen v R (previously noted in these blogs on 19 September 2005). If the Court decides that the reverse onus provision in question, s 6(6) of the Misuse of Drugs Act 1975, puts merely an evidential, not a legal, burden of proof on the defence, questions may arise about convictions that have been incurred in trials where juries have been directed differently. While a misdirection on the standard of proof will normally result in the quashing of a conviction, it is, arguably, not so fundamental an objection as lack of jurisdiction by the tribunal. Nevertheless, given that it was possible to anticipate that the New Zealand law on reverse onuses would be brought into line with English law, can it now be said that people who were convicted before the change (assuming, of course, that Hansen does change the law) acquiesced in the error?
A straightforward solution to this would be to say that Hansen changes (again, assuming that it will change) the law from the date it is decided, and that earlier trials (but not Hansen’s, as these are still his proceedings) where heard under the law as it was then correctly understood to be.
Friday, February 17, 2006
The "overarching requirement" of fairness
The interrelationship between the requirements that statements be made voluntarily, and that trials be fair, was central to the unanimous decision of the Judicial Committee in Shabadine Peart v R (Jamaica) [2006] UKPC 5 (14 February 2006).
Which is the dominant requirement? If a confession was made voluntarily, should it always be admissible? If it was obtained wrongfully, but still given voluntarily, should it always be admissible? Obtaining a statement wrongfully can result in lies being told which unfairly diminish the credibility of the defence. This was the position in Shabadine Peart. Should such a statement be admissible, because it was made voluntarily, even though it could result in unfairness at trial? Is it necessary that the effect of the misconduct in obtaining the statement would be to make the trial unfair, or can exclusion of the wrongfully obtained statement be justified on broader grounds of public policy?
I should note, at this point, that this case focuses on the effect of admission of the wrongfully obtained statement on trial fairness, when that matter would not arise unless the statement should have been excluded on public policy grounds. If there were no public policy grounds to exclude the statement, there could be no trial fairness objection to its admission. Yet, once there were sufficient public policy grounds to exclude it, the appellate court had to deal with the fair trial implications of the error.
Well, aside from that matter, what does Shabadine Peart decide about trial fairness? It follows a line of cases, not cited in the judgment but referred to frequently in these blogs, that puts fairness as the overarching criterion (para 23). The most important facet of fairness is the voluntariness of the statement by the accused, and also relevant are factors such as his youth, and whether he received legal advice before making the statement.
The case involved breaches of Rule 3(b) of the Judges’ Rules, which concerns restrictions on questions that may be put to the accused after he has been arrested. The Privy Council doubted that in the circumstances the statement could be regarded as voluntary, but, even if voluntary, it was unfair to admit the statement in evidence (para 29). This was because it contradicted some of the evidence given or called by the accused at trial, and could therefore be used by the prosecution to diminish the credibility of the defence.
Well, it would only be wrong to admit such a statement if it had been wrongfully obtained in such a way as to give rise to public policy concerns over disrepute to the administration of justice. In my view, as stated above, the Board's comments on trial fairness were unnecessary and misleading.
At this point in the judgment it was necessary to consider the application of the proviso – itself an interesting topic, considered in these blogs. It was held that if the statement had been excluded, the course of the trial may have been very different and the defence may have succeeded (para 30). This is recognisable as the criterion of whether the error at trial had resulted in the loss of a real chance of acquittal. That was sufficient to prevent application of the proviso. It should be noted that the Board is not, here, relying on the trial fairness aspect of application of the proviso, but instead is, properly, determining whether the error at trial had had significance for its result. Inconsequential errors in the application of the public policy discretion do not, by definition, matter.
Some aspects of Rule 3(b) are also mentioned. These include the history and rationale for the Rule, the distinction between the suspicion and accusation phases of the police inquiry, and judicial experience of the tendency of those who have told the truth to tell lies to avoid pressure (paras 18 – 20).
Which is the dominant requirement? If a confession was made voluntarily, should it always be admissible? If it was obtained wrongfully, but still given voluntarily, should it always be admissible? Obtaining a statement wrongfully can result in lies being told which unfairly diminish the credibility of the defence. This was the position in Shabadine Peart. Should such a statement be admissible, because it was made voluntarily, even though it could result in unfairness at trial? Is it necessary that the effect of the misconduct in obtaining the statement would be to make the trial unfair, or can exclusion of the wrongfully obtained statement be justified on broader grounds of public policy?
I should note, at this point, that this case focuses on the effect of admission of the wrongfully obtained statement on trial fairness, when that matter would not arise unless the statement should have been excluded on public policy grounds. If there were no public policy grounds to exclude the statement, there could be no trial fairness objection to its admission. Yet, once there were sufficient public policy grounds to exclude it, the appellate court had to deal with the fair trial implications of the error.
Well, aside from that matter, what does Shabadine Peart decide about trial fairness? It follows a line of cases, not cited in the judgment but referred to frequently in these blogs, that puts fairness as the overarching criterion (para 23). The most important facet of fairness is the voluntariness of the statement by the accused, and also relevant are factors such as his youth, and whether he received legal advice before making the statement.
The case involved breaches of Rule 3(b) of the Judges’ Rules, which concerns restrictions on questions that may be put to the accused after he has been arrested. The Privy Council doubted that in the circumstances the statement could be regarded as voluntary, but, even if voluntary, it was unfair to admit the statement in evidence (para 29). This was because it contradicted some of the evidence given or called by the accused at trial, and could therefore be used by the prosecution to diminish the credibility of the defence.
Well, it would only be wrong to admit such a statement if it had been wrongfully obtained in such a way as to give rise to public policy concerns over disrepute to the administration of justice. In my view, as stated above, the Board's comments on trial fairness were unnecessary and misleading.
At this point in the judgment it was necessary to consider the application of the proviso – itself an interesting topic, considered in these blogs. It was held that if the statement had been excluded, the course of the trial may have been very different and the defence may have succeeded (para 30). This is recognisable as the criterion of whether the error at trial had resulted in the loss of a real chance of acquittal. That was sufficient to prevent application of the proviso. It should be noted that the Board is not, here, relying on the trial fairness aspect of application of the proviso, but instead is, properly, determining whether the error at trial had had significance for its result. Inconsequential errors in the application of the public policy discretion do not, by definition, matter.
Some aspects of Rule 3(b) are also mentioned. These include the history and rationale for the Rule, the distinction between the suspicion and accusation phases of the police inquiry, and judicial experience of the tendency of those who have told the truth to tell lies to avoid pressure (paras 18 – 20).
Wednesday, February 15, 2006
Easy does it!
The Supreme Court’s decision in Thompson v R [2006] SCNZ 3 (15 February 2006), in which answers to questions at trial were held not to have caused unfairness, gives us an opportunity to reflect on the art of cross-examination.
In my view, the following ten are fundamental points that must be remembered by counsel faced with the task of cross-examining a witness:
1. Find out beforehand the worst that the witness could say, from your client’s point of view.
2. It is unlikely that the witness will be compelled, by your questioning, to tell lies that suit your client.
3. If you are trying to get the witness to change an assertion, it may be best to start by suggesting reasons the witness may be honestly mistaken. This is because an aggressive approach to cross-examination is less likely to find sympathy with the jury than an approach which assumes the witness will in good faith acknowledge ordinary human failings.
4. An aggressive approach is unlikely to succeed with an aggressive witness. Gently hinting at common sense reasons for the witness’s error is preferable, especially if the jurors are likely to accept them.
5. Where the witness can be contradicted by his own previous statement, make the most of that by getting him to give as much "detail" as possible first, before putting the contradicting statement. This applies as long as the witness is unlikely to have been wrong in the previous statement, and where that earlier statement is more favourable to your client than the witness’s present testimony.
6. There is a duty to put your client’s case to the witness. This can be done point by point, in questions that take the form "Didn’t X?", "Didn’t Y?" etc. This is stronger than the formula that is commonly encountered: "My client will give evidence and say that X, what do you say to that?"
7. Don’t ask unnecessary questions. Don’t ask questions that are open-ended, such as "Why do you say that?" Lead the witness as much as possible, to give your questioning a focus that the jury understands. One of the purposes of cross-examination is to get the witness to say what you want him to say, to score a point and/or to undermine your opponent’s case.
8. Don’t ask questions that you don’t know the answer to, unless the whole tenor of the case points in the direction of the answer you want and any other answer would lack credibility.
9. If you have to attack the witness as a liar, remember that this strategy may result in the jury learning of your client’s own bad character (including previous convictions).
10. If your client is of good character, and if you rely on that as part of your case, take opportunities to use it in cross-examination; this can be tactically advantageous as it should result in the judge directing the jury on your client’s good character.
In Thompson, experienced trial counsel was drawn in to engaging in what the Court of Appeal called a "slugfest" with the witness: see R v Thompson 16/6/05, CA445/04, para 56. This, of itself, was not necessarily an error, as the Court of Appeal noted, at para 66:
"… robust cross-examination is one of the many options open to counsel, who must be accorded wide discretion."
But the Court added, para 69:
"Generally, counsel find it politic to conduct cross-examination with ‘a measure of courtesy’ …."
The conclusion, upheld by the Supreme Court, was that the evidence that was inadmissible but which was given in cross-examination, when seen in context, and in the light of a strong warning by the judge to the jury about its use, did not cause a miscarriage of justice.
In my view, the following ten are fundamental points that must be remembered by counsel faced with the task of cross-examining a witness:
1. Find out beforehand the worst that the witness could say, from your client’s point of view.
2. It is unlikely that the witness will be compelled, by your questioning, to tell lies that suit your client.
3. If you are trying to get the witness to change an assertion, it may be best to start by suggesting reasons the witness may be honestly mistaken. This is because an aggressive approach to cross-examination is less likely to find sympathy with the jury than an approach which assumes the witness will in good faith acknowledge ordinary human failings.
4. An aggressive approach is unlikely to succeed with an aggressive witness. Gently hinting at common sense reasons for the witness’s error is preferable, especially if the jurors are likely to accept them.
5. Where the witness can be contradicted by his own previous statement, make the most of that by getting him to give as much "detail" as possible first, before putting the contradicting statement. This applies as long as the witness is unlikely to have been wrong in the previous statement, and where that earlier statement is more favourable to your client than the witness’s present testimony.
6. There is a duty to put your client’s case to the witness. This can be done point by point, in questions that take the form "Didn’t X?", "Didn’t Y?" etc. This is stronger than the formula that is commonly encountered: "My client will give evidence and say that X, what do you say to that?"
7. Don’t ask unnecessary questions. Don’t ask questions that are open-ended, such as "Why do you say that?" Lead the witness as much as possible, to give your questioning a focus that the jury understands. One of the purposes of cross-examination is to get the witness to say what you want him to say, to score a point and/or to undermine your opponent’s case.
8. Don’t ask questions that you don’t know the answer to, unless the whole tenor of the case points in the direction of the answer you want and any other answer would lack credibility.
9. If you have to attack the witness as a liar, remember that this strategy may result in the jury learning of your client’s own bad character (including previous convictions).
10. If your client is of good character, and if you rely on that as part of your case, take opportunities to use it in cross-examination; this can be tactically advantageous as it should result in the judge directing the jury on your client’s good character.
In Thompson, experienced trial counsel was drawn in to engaging in what the Court of Appeal called a "slugfest" with the witness: see R v Thompson 16/6/05, CA445/04, para 56. This, of itself, was not necessarily an error, as the Court of Appeal noted, at para 66:
"… robust cross-examination is one of the many options open to counsel, who must be accorded wide discretion."
But the Court added, para 69:
"Generally, counsel find it politic to conduct cross-examination with ‘a measure of courtesy’ …."
The conclusion, upheld by the Supreme Court, was that the evidence that was inadmissible but which was given in cross-examination, when seen in context, and in the light of a strong warning by the judge to the jury about its use, did not cause a miscarriage of justice.
Thursday, February 09, 2006
Rushing to judgment
Cutting to the chase in trials can look unfair. Where legal submissions are necessary, judges may be tempted to deal with them peremptorily, risking the appearance of bias. The bounds of proper judicial conduct were crossed at the trial that was the subject of the appeals jointly heard in Antoun v R [2006] HCA 2 (8 February 2006).
The judges of the High Court of Australia all agreed that the trial had been handled in a way that created the appearance that the judge was biased against the defence. This "apprehended bias", is
"the appearance of a possibility of an absence of an impartial mind on the part of the judge"
(per Callinan J at para 83, with whom the other members of the Court agreed). As Kirby J noted, para 28:
"…The manifest observance of fair procedures is necessary to satisfy the requirements not only of fairness to the accused but also of justice before the public so that they may be satisfied, by attendance or from the record, that the process has followed lines observing basic rules of fairness. Excessively telescoping the procedures in such cases can lead to a sense of disquiet on the part of the accused, and of objective observers whose attitudes, where relevant, must be represented, and given effect, by appellate courts."
In this case the judge, on being told at the close of the prosecution case, that the defence counsel for each accused would make submissions that there was no case to answer, immediately said that such submissions would be rejected. This was said before an opportunity to make those submissions was given. It was a trial by judge alone, but that is not material because even in a jury trial such submissions would be heard in the absence of the jury.
Callinan J held that the judge’s conduct gave an appearance of pre-judgment, and therefore, para 86:
"It follows that the apparent strength of the respondent's case, and the weaknesses of the appellants' defence cannot be used as justification or excuse for the trial judge's expressions of a determination to reject submissions foreshadowed, but not yet made and developed."
Gleeson CJ put it this way, para 23:
"…The judge regarded this as a strong case of extortion. He formed the view, with good reason, that the no case to answer submission was likely to be implausible. Yet he should not have decided to reject it without giving counsel an opportunity to put the argument. In the circumstances, that would not have required much time. The way in which the judge dealt with the no case argument, and later with the question of bail, gave rise to an appearance of lack of impartiality. Strong as the case against the appellants appeared to be, they were entitled to a fair hearing."
This case did not include submissions on whether the proviso could be relied upon to dismiss the appeal. However, Kirby J noted, para 49, that the denial of the opportunity to make submissions before decision would probably be a sufficient miscarriage of justice to make the proviso inapplicable, and that, had the case been argued on the proviso, it would have required consideration of Weiss v The Queen [2005] HCA 81 at [45] (see these blogs, 16 January 2006).
We might, by now, anticipate that a case of apprehended bias would be a substantial miscarriage of justice, given the fundamental importance of the appearance of justice, but one must acknowledge that there is, at least, an argument that whereas actual bias would be a substantial miscarriage of justice, apprehended bias falls short of that in cases where there was no loss of a real chance of acquittal.
Consideration of Antoun raises a number of fundamental questions. Is there a difference between so-called "apprehended" bias and "actual" bias? If there is such a thing as apprehended bias, does it fall within the scope of the accused’s right to a fair hearing, or is it an associated right? Current jurisprudence suggests that if it is the former, it is absolute, but if it is only an associated right then it is subject to balancing against competing values. Doesn’t the actual decision in Antoun (that apprehended bias requires a retrial even where the judge’s ruling was correct) mean that the real issue in the case was not whether the hearing had involved bias (whether actual or apprehended), but rather whether there had been a "hearing" on the relevant issue? On analysis, the real reason a retrial was necessary in Antoun is that the accused had been denied the right to a hearing on the issue of whether there had been a case to answer.
The judges of the High Court of Australia all agreed that the trial had been handled in a way that created the appearance that the judge was biased against the defence. This "apprehended bias", is
"the appearance of a possibility of an absence of an impartial mind on the part of the judge"
(per Callinan J at para 83, with whom the other members of the Court agreed). As Kirby J noted, para 28:
"…The manifest observance of fair procedures is necessary to satisfy the requirements not only of fairness to the accused but also of justice before the public so that they may be satisfied, by attendance or from the record, that the process has followed lines observing basic rules of fairness. Excessively telescoping the procedures in such cases can lead to a sense of disquiet on the part of the accused, and of objective observers whose attitudes, where relevant, must be represented, and given effect, by appellate courts."
In this case the judge, on being told at the close of the prosecution case, that the defence counsel for each accused would make submissions that there was no case to answer, immediately said that such submissions would be rejected. This was said before an opportunity to make those submissions was given. It was a trial by judge alone, but that is not material because even in a jury trial such submissions would be heard in the absence of the jury.
Callinan J held that the judge’s conduct gave an appearance of pre-judgment, and therefore, para 86:
"It follows that the apparent strength of the respondent's case, and the weaknesses of the appellants' defence cannot be used as justification or excuse for the trial judge's expressions of a determination to reject submissions foreshadowed, but not yet made and developed."
Gleeson CJ put it this way, para 23:
"…The judge regarded this as a strong case of extortion. He formed the view, with good reason, that the no case to answer submission was likely to be implausible. Yet he should not have decided to reject it without giving counsel an opportunity to put the argument. In the circumstances, that would not have required much time. The way in which the judge dealt with the no case argument, and later with the question of bail, gave rise to an appearance of lack of impartiality. Strong as the case against the appellants appeared to be, they were entitled to a fair hearing."
This case did not include submissions on whether the proviso could be relied upon to dismiss the appeal. However, Kirby J noted, para 49, that the denial of the opportunity to make submissions before decision would probably be a sufficient miscarriage of justice to make the proviso inapplicable, and that, had the case been argued on the proviso, it would have required consideration of Weiss v The Queen [2005] HCA 81 at [45] (see these blogs, 16 January 2006).
We might, by now, anticipate that a case of apprehended bias would be a substantial miscarriage of justice, given the fundamental importance of the appearance of justice, but one must acknowledge that there is, at least, an argument that whereas actual bias would be a substantial miscarriage of justice, apprehended bias falls short of that in cases where there was no loss of a real chance of acquittal.
Consideration of Antoun raises a number of fundamental questions. Is there a difference between so-called "apprehended" bias and "actual" bias? If there is such a thing as apprehended bias, does it fall within the scope of the accused’s right to a fair hearing, or is it an associated right? Current jurisprudence suggests that if it is the former, it is absolute, but if it is only an associated right then it is subject to balancing against competing values. Doesn’t the actual decision in Antoun (that apprehended bias requires a retrial even where the judge’s ruling was correct) mean that the real issue in the case was not whether the hearing had involved bias (whether actual or apprehended), but rather whether there had been a "hearing" on the relevant issue? On analysis, the real reason a retrial was necessary in Antoun is that the accused had been denied the right to a hearing on the issue of whether there had been a case to answer.
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