We have already noted the Supreme Court’s decision in L v R (see blog for 3 April 2006), in which the mental elements of an attempt to commit an offence that could be committed recklessly were held to include the same recklessness. Yesterday, the House of Lords reached a different conclusion in R v Saik [2006] UKHL 18 (3 May 2006), which concerned the statutory definition of "conspiracy". Both attempts and conspiracies are what is called inchoate offences: they are, in this sense, uncompleted substantive offences.
It is interesting to observe that legislatures can differ on what sort of behaviour, preliminary to the commission of a substantive offence, they consider appropriate to criminalise, and they can also differ on how precisely they wish to indicate the scope of proscribed behaviour.
Under English law, money laundering (the relevant substantive offence in Saik) can be committed knowingly, or by having reasonable grounds to suspect, in relation to the fact that the money or property is the proceeds of criminal conduct. The New Zealand definition of money laundering is broadly similar in these respects; both the Crimes Act 1961 and the Misuse of Drugs Act 1975 contain laundering offences, and the relevant state of mind is knowing, believing, or being reckless as to the money or property being proceeds of a serious offence.
There is, obviously, a difference, in that the English provision encompasses having reasonable grounds to suspect, whereas in New Zealand the scope does not extend beyond recklessness.
The material difference for present purposes is in the definitions of the inchoate offences. The English statutory conspiracy is defined in s 1(1) and (2) of the Criminal Law Act 1977[UK], and, significantly, s 1(2), as interpreted in Saik, requires that, in relation to essential circumstances that need not be known for liability for the full offence, the accused must intend or know of them for liability to arise for the conspiracy. Thus, for conspiring to launder property, where the full offence does not require knowledge that the property is proceeds of criminal conduct (reasonable grounds to suspect being sufficient), the consequence of the Saik interpretation of s 1(2) is that conspiring to launder property requires proof that the accused knew or believed that the property was proceeds of criminal conduct.
In New Zealand, the crime of attempting to commit an offence is defined in s 72 of the Crimes Act 1961, which requires an "intent to commit an offence". In L v R this was interpreted to mean, for attempted sexual violation, intention to penetrate (or, in the peculiar circumstances of that case, an intention that penetration should occur), and recklessness as to whether the victim consented. The policy applied in L has thus, from this point of view, resulted in expansion of the meaning of "intent" in s 72.
In summary, the UK Parliament defined conspiracy narrowly, and the Court declined to interpret the definition in a way that would have extended it, whereas the New Zealand Parliament defined attempt without specifying whether it should be construed widely or narrowly, and the Court chose a wide interpretation.
Thursday, May 04, 2006
Wednesday, May 03, 2006
Thou art far more fair than she ...
Is Australian criminal law really fairer than New Zealand’s? In Moloney v New Zealand [2006] FCA 438 (21 April 2006) (blogged here on 1 May 2006), Madgwick J thought it is. It is arguable that his approach to this matter was wrong. He should have used as fundamental a point that he did note, namely that since New Zealand, like Australia, is a party to the International Convention on Civil and Political Rights, and, further to what he noted, that since New Zealand, unlike Australia, has the accused’s right to a fair trial included in a Bill of Rights, courts in New Zealand are unlikely to tolerate an unfair trial.
The question would then have been, would New Zealand judges be likely to interpret their rules of evidence in a way that results in unfairness to the accused?
It is not a matter of comparing the rules in Australia with those in New Zealand, as Madgwick J did, because it is the result of the application of the rules that is critical. The real question in Moloney was, does the right to a fair trial in New Zealand have overriding importance?
I have argued that it does: see "The Accused’s Right to a Fair Trial: Absolute or Limitable?" [2005] New Zealand Law Review 217. I must acknowledge, however, that the mere fact that the eponymous question has to be asked indicates that in New Zealand there has been some doubt over whether the accused’s right to a fair trial overrides other rights and interests. My conclusion in that article was that the majority of senior New Zealand judges appear to accept the absolute view of the accused’s right to a fair trial. Concern over the status of trial fairness in New Zealand should focus on the grounds on which judges disagree over that.
In Moloney, Madgwick J gave two main reasons for concluding that trials of the relevant charges, allegations of historical sexual misconduct going back 22 to 31 years, on balance would be unlikely to be conducted fairly in New Zealand, if fairness is assessed by Australian standards. Each reason has its weaknesses.
The first reason concerned judicial warnings to the jury about the reasons that evidence by complainants about events that are allegedly remembered after so long a time may be unreliable, and reasons why the accused may be disadvantaged in challenging such allegations. In Australia such warnings, in cases of delay of this length, are apparently mandatory. That, at least, was the view of Madgwick J, and we may for present purposes assume that he was correct on this point. In New Zealand they are discretionary. What, then, is the significance of this difference?
As suggested above, the question should have been, would New Zealand judges be likely to decline to warn the jury about those matters in the circumstances of these cases? And, if they did not give the warning, would convictions be likely to be upheld on appeal; that is, would the Court of Appeal recognise that failure to give the warning amounted to a substantial miscarriage of justice?
The current state of development of the law in New Zealand is such that, while we may be reasonably sure that a trial judge would warn the jury, if he did not, we cannot be sure that an appellate court would regard that omission as a substantial miscarriage of justice. The problem of appellate recognition of substantial miscarriage of justice is not confined to New Zealand: the Privy Council not infrequently differs among its members on this. There is, therefore, reason for some unease on this score.
The second reason that Madgwick J gave was that in Australia the charges would be heard at separate trials, because the evidence of each complainant was only relevant to the allegations made by that complainant, whereas it seemed that in New Zealand a court would be likely to regard the evidence of some complainants as corroborative of the evidence of others, so that some joinder of trials may occur. This area of the law of evidence concerns what is usually called "similar fact" evidence. Essentially, where different complainants make similar allegations, one tends to increase the likelihood that another is true, unless there was evidence that they had colluded to concoct falsely similar stories. The proper focus of similar fact evidence, where it is admissible, is on the weight to be given to the evidence of the complainant whose allegations are being decided. The great danger of this evidence is that juries will go straight to a conclusion that the accused is the kind of person who does this sort of thing, so he must be guilty. In other words, the error would be to convict the accused for what is now alleged because of what he is said to have done before, rather than because this complainant is believable.
The law about similar facts has been problematic everywhere. This has often been because its admissibility has been linked to the criterion of whether the probative value of the evidence outweighs its illegitimately prejudicial effect. I have discussed this in "Probative value, illegitimate prejudice and the accused’s right to a fair trial" (2005) 29 Crim LJ 8. In Moloney, Madgwick J considered that in Australia the similar fact evidence would not be admissible. Assuming that to be so, would it be admissible in New Zealand? A leading case on this is R v Holtz. I have discussed this case in Misuse of Drugs, para 306, as follows:
"There could appear to be some withdrawal from the requirement of hallmark or striking similarity in R v Holtz [2003] 1 NZLR 667; (2002) 20 CRNZ 14 (CA). But whether that is so, and if so, whether it is to be taken as a generally applicable modification of the law, may be doubted. The Court observed at para 35 that it is wrong to look for principles of admissibility applicable to all evidence of past conduct in all circumstances. Identity was disputed in relation to some of the allegedly similar facts, and at para 43 the Court merely required a credible strand of circumstantial evidence pointing to the accused as the offender. However, a more rigorous requirement appeared at para 47, where it was stated that the evidence must be truly probative and cogent. In full, this crucial paragraph reads as follows:
"[47] The care with which evidence of similar acts is scrutinised is justified because of the prejudice that inevitably arises from the risk of guilt being improperly inferred from mere propensity or disposition evidenced by previous bad conduct. But, where the evidence is truly probative and cogent, admission is appropriate so long as the circumstances are such that, while allowing the probative value of the evidence to be availed of, the risk of improper use can be avoided by appropriate directions to the jury."
"It should be noted here that the requirement is that the risk of improper use of the evidence can be avoided, not just reduced to a level where it is outweighed by the probative value of the evidence."
If this criterion is applied strictly the "trial according to law" aspect of the right to a fair trial would be protected. Unfortunately, it cannot be said for certain, at present, that the "avoiding" of improper use of the evidence would be required, instead of merely the risk of improper use being "outweighed" by the probative value of the evidence. Again, on this point, one cannot be sure that judges in New Zealand would interpret this rule of evidence in a way that would ensure the dominance of the accused’s right to a fair trial.
The question would then have been, would New Zealand judges be likely to interpret their rules of evidence in a way that results in unfairness to the accused?
It is not a matter of comparing the rules in Australia with those in New Zealand, as Madgwick J did, because it is the result of the application of the rules that is critical. The real question in Moloney was, does the right to a fair trial in New Zealand have overriding importance?
I have argued that it does: see "The Accused’s Right to a Fair Trial: Absolute or Limitable?" [2005] New Zealand Law Review 217. I must acknowledge, however, that the mere fact that the eponymous question has to be asked indicates that in New Zealand there has been some doubt over whether the accused’s right to a fair trial overrides other rights and interests. My conclusion in that article was that the majority of senior New Zealand judges appear to accept the absolute view of the accused’s right to a fair trial. Concern over the status of trial fairness in New Zealand should focus on the grounds on which judges disagree over that.
In Moloney, Madgwick J gave two main reasons for concluding that trials of the relevant charges, allegations of historical sexual misconduct going back 22 to 31 years, on balance would be unlikely to be conducted fairly in New Zealand, if fairness is assessed by Australian standards. Each reason has its weaknesses.
The first reason concerned judicial warnings to the jury about the reasons that evidence by complainants about events that are allegedly remembered after so long a time may be unreliable, and reasons why the accused may be disadvantaged in challenging such allegations. In Australia such warnings, in cases of delay of this length, are apparently mandatory. That, at least, was the view of Madgwick J, and we may for present purposes assume that he was correct on this point. In New Zealand they are discretionary. What, then, is the significance of this difference?
As suggested above, the question should have been, would New Zealand judges be likely to decline to warn the jury about those matters in the circumstances of these cases? And, if they did not give the warning, would convictions be likely to be upheld on appeal; that is, would the Court of Appeal recognise that failure to give the warning amounted to a substantial miscarriage of justice?
The current state of development of the law in New Zealand is such that, while we may be reasonably sure that a trial judge would warn the jury, if he did not, we cannot be sure that an appellate court would regard that omission as a substantial miscarriage of justice. The problem of appellate recognition of substantial miscarriage of justice is not confined to New Zealand: the Privy Council not infrequently differs among its members on this. There is, therefore, reason for some unease on this score.
The second reason that Madgwick J gave was that in Australia the charges would be heard at separate trials, because the evidence of each complainant was only relevant to the allegations made by that complainant, whereas it seemed that in New Zealand a court would be likely to regard the evidence of some complainants as corroborative of the evidence of others, so that some joinder of trials may occur. This area of the law of evidence concerns what is usually called "similar fact" evidence. Essentially, where different complainants make similar allegations, one tends to increase the likelihood that another is true, unless there was evidence that they had colluded to concoct falsely similar stories. The proper focus of similar fact evidence, where it is admissible, is on the weight to be given to the evidence of the complainant whose allegations are being decided. The great danger of this evidence is that juries will go straight to a conclusion that the accused is the kind of person who does this sort of thing, so he must be guilty. In other words, the error would be to convict the accused for what is now alleged because of what he is said to have done before, rather than because this complainant is believable.
The law about similar facts has been problematic everywhere. This has often been because its admissibility has been linked to the criterion of whether the probative value of the evidence outweighs its illegitimately prejudicial effect. I have discussed this in "Probative value, illegitimate prejudice and the accused’s right to a fair trial" (2005) 29 Crim LJ 8. In Moloney, Madgwick J considered that in Australia the similar fact evidence would not be admissible. Assuming that to be so, would it be admissible in New Zealand? A leading case on this is R v Holtz. I have discussed this case in Misuse of Drugs, para 306, as follows:
"There could appear to be some withdrawal from the requirement of hallmark or striking similarity in R v Holtz [2003] 1 NZLR 667; (2002) 20 CRNZ 14 (CA). But whether that is so, and if so, whether it is to be taken as a generally applicable modification of the law, may be doubted. The Court observed at para 35 that it is wrong to look for principles of admissibility applicable to all evidence of past conduct in all circumstances. Identity was disputed in relation to some of the allegedly similar facts, and at para 43 the Court merely required a credible strand of circumstantial evidence pointing to the accused as the offender. However, a more rigorous requirement appeared at para 47, where it was stated that the evidence must be truly probative and cogent. In full, this crucial paragraph reads as follows:
"[47] The care with which evidence of similar acts is scrutinised is justified because of the prejudice that inevitably arises from the risk of guilt being improperly inferred from mere propensity or disposition evidenced by previous bad conduct. But, where the evidence is truly probative and cogent, admission is appropriate so long as the circumstances are such that, while allowing the probative value of the evidence to be availed of, the risk of improper use can be avoided by appropriate directions to the jury."
"It should be noted here that the requirement is that the risk of improper use of the evidence can be avoided, not just reduced to a level where it is outweighed by the probative value of the evidence."
If this criterion is applied strictly the "trial according to law" aspect of the right to a fair trial would be protected. Unfortunately, it cannot be said for certain, at present, that the "avoiding" of improper use of the evidence would be required, instead of merely the risk of improper use being "outweighed" by the probative value of the evidence. Again, on this point, one cannot be sure that judges in New Zealand would interpret this rule of evidence in a way that would ensure the dominance of the accused’s right to a fair trial.
Monday, May 01, 2006
A difference of reasonable minds
Fairness can be a very difficult matter to agree on, as is demonstrated in cases where judges have differed among themselves: see, for illustrations, blog entries for 10 October 2004, 10 July 2005, 28 August 2005, 9 December 2005 and 7 March 2006. Applications to extradite suspects to other jurisdictions where fairness of trial may be questioned give rise to the issue of what is an acceptable risk of unfair trial in the foreign court. In Bagdanavicius [2005] UKHL 38 (blogged 26 May 2005) it was held that extradition must be refused if there are "substantial grounds" for believing there to be "a real risk" of mistreatment in the foreign jurisdiction.
In Moloney v New Zealand [2006] FCA 438 (21 April 2006) the Federal Court of Australia (Madgwick J) held (para 120) that the burden, on appeal, was on the defendants (those resisting extradition) to show there would probably be an injustice in extradition. This might (it is difficult to say, as the point is not discussed by Madgwick J) be an easier standard to satisfy than that required by the House of Lords in Bagdanavicius.
That aside, Moloney points to some areas in New Zealand criminal law that are not self-evidently fair. Diplomatically, Madgwick J acknowledges (para 108) that "reasonable minds may and do differ on what constitute the incidents of a fair trial", so that, in effect, this is a difference between friends. No insult being intended, the Federal Court held that, judged as it must be by the standards of Australian law (Bannister v New Zealand (1999) 86 FCR 417), trial of the charges in New Zealand would probably be unfair.
Moloney holds that New Zealand criminal law falls short of the Australian standard of fairness in the following respects:
(1) In cases of historical allegations, in Australia judges must warn the jury about the dangers inherent in accepting the evidence of complainants (this is called the direction in Longman v R (1989) 168 CLR 79 (HCA)), whereas the New Zealand Court of Appeal has rejected the mandatory requirement of a warning, preferring to leave the need for a warning as a matter for the judge to decide: R v M 13/11/95, CA187/95. This was held to be the factor that made the difference between Australian and New Zealand law sufficiently serious to prevent extradition. Australian courts regard the Longman direction as being "a vital requirement for a just trial in a case of long delay" (para 109). But there were other factors too.
(2) Whereas in Australian law it is clear that the charges would have to be heard separately, because similar fact evidence would be inadmissible, this was not so clear in New Zealand law (citing R v Holtz [2003] 1 NZLR 667, 675 (CA)). While this uncertainty made this factor less than decisive, it was, nevertheless, "a circumstance exacerbating the disabilities" caused to the defence and arising from the delay (paras 117, 123).
(3) Australia has rejected the use of representative charges (S v R (1989) 168 CLR 266 and KBT v R (1997) 191 CLR 417 (HCA)), whereas they are acceptable in New Zealand: para 110, quoting R v Accused [1993] 1 NZLR 385, 389 (CA). The objections to representative charges concern vagueness as to when the offence for which the accused is convicted occurred, and what facts were accepted as proof of it.
There was, in summary, between Australia and New Zealand "a fundamental difference as to the content of an effective right to a fair hearing, such right being recognised … as a basic human right" (para 113).
Apologists for New Zealand law might argue that, vague though the law may be, everything would turn out alright in the end, as appellate courts can take an overview and correct unfairness. Such wooliness is, indeed, behind the development of the law to this unsatisfactory state. Disturbingly, New Zealand has been led into this difference of "reasonable minds" by some of our foremost judges: participants in New Zealand Court of Appeal decisions cited in Moloney include Cooke P (now, Lord Cooke), Gault P, Richardson J (subsequently P), Casey, Hardie Boys, and Keith JJ. In this area, rules are preferable to discretions, and precision must be pushed as far as it will go.
Having said that, it should be acknowledged that a face-saving appeal against Madgwick J’s decision in Moloney could result in a different view of New Zealand’s approach to fairness. It could be held that Madgwick J was wrong to consider that in Australia a warning was inevitable in the circumstances of the case(s), citing Doggett v R (2001) 182 ALR 1 (HCA), where McHugh J dissented in holding that no warning was required in that case, as an illustration of how the need for a warning can be controversial. That would make the position on warnings as uncertain in Australia as it seems to be in New Zealand. Further, while the risk of evidence of other complainants being admissible on a similar fact basis seems to be high in New Zealand, it cannot be discounted in Australia either, because the merits of the case (correctly recognised as not relevant to the extradition decision) may give other complaints high probative value as corroboration. Such corroboration would, in turn, reduce the need for a warning in Australian law. The result could be that New Zealand’s law on fairness is not significantly different from Australia’s.
That, however, could be said to mean that the law on fair trials is equally unsatisfactory in each country.
In Moloney v New Zealand [2006] FCA 438 (21 April 2006) the Federal Court of Australia (Madgwick J) held (para 120) that the burden, on appeal, was on the defendants (those resisting extradition) to show there would probably be an injustice in extradition. This might (it is difficult to say, as the point is not discussed by Madgwick J) be an easier standard to satisfy than that required by the House of Lords in Bagdanavicius.
That aside, Moloney points to some areas in New Zealand criminal law that are not self-evidently fair. Diplomatically, Madgwick J acknowledges (para 108) that "reasonable minds may and do differ on what constitute the incidents of a fair trial", so that, in effect, this is a difference between friends. No insult being intended, the Federal Court held that, judged as it must be by the standards of Australian law (Bannister v New Zealand (1999) 86 FCR 417), trial of the charges in New Zealand would probably be unfair.
Moloney holds that New Zealand criminal law falls short of the Australian standard of fairness in the following respects:
(1) In cases of historical allegations, in Australia judges must warn the jury about the dangers inherent in accepting the evidence of complainants (this is called the direction in Longman v R (1989) 168 CLR 79 (HCA)), whereas the New Zealand Court of Appeal has rejected the mandatory requirement of a warning, preferring to leave the need for a warning as a matter for the judge to decide: R v M 13/11/95, CA187/95. This was held to be the factor that made the difference between Australian and New Zealand law sufficiently serious to prevent extradition. Australian courts regard the Longman direction as being "a vital requirement for a just trial in a case of long delay" (para 109). But there were other factors too.
(2) Whereas in Australian law it is clear that the charges would have to be heard separately, because similar fact evidence would be inadmissible, this was not so clear in New Zealand law (citing R v Holtz [2003] 1 NZLR 667, 675 (CA)). While this uncertainty made this factor less than decisive, it was, nevertheless, "a circumstance exacerbating the disabilities" caused to the defence and arising from the delay (paras 117, 123).
(3) Australia has rejected the use of representative charges (S v R (1989) 168 CLR 266 and KBT v R (1997) 191 CLR 417 (HCA)), whereas they are acceptable in New Zealand: para 110, quoting R v Accused [1993] 1 NZLR 385, 389 (CA). The objections to representative charges concern vagueness as to when the offence for which the accused is convicted occurred, and what facts were accepted as proof of it.
There was, in summary, between Australia and New Zealand "a fundamental difference as to the content of an effective right to a fair hearing, such right being recognised … as a basic human right" (para 113).
Apologists for New Zealand law might argue that, vague though the law may be, everything would turn out alright in the end, as appellate courts can take an overview and correct unfairness. Such wooliness is, indeed, behind the development of the law to this unsatisfactory state. Disturbingly, New Zealand has been led into this difference of "reasonable minds" by some of our foremost judges: participants in New Zealand Court of Appeal decisions cited in Moloney include Cooke P (now, Lord Cooke), Gault P, Richardson J (subsequently P), Casey, Hardie Boys, and Keith JJ. In this area, rules are preferable to discretions, and precision must be pushed as far as it will go.
Having said that, it should be acknowledged that a face-saving appeal against Madgwick J’s decision in Moloney could result in a different view of New Zealand’s approach to fairness. It could be held that Madgwick J was wrong to consider that in Australia a warning was inevitable in the circumstances of the case(s), citing Doggett v R (2001) 182 ALR 1 (HCA), where McHugh J dissented in holding that no warning was required in that case, as an illustration of how the need for a warning can be controversial. That would make the position on warnings as uncertain in Australia as it seems to be in New Zealand. Further, while the risk of evidence of other complainants being admissible on a similar fact basis seems to be high in New Zealand, it cannot be discounted in Australia either, because the merits of the case (correctly recognised as not relevant to the extradition decision) may give other complaints high probative value as corroboration. Such corroboration would, in turn, reduce the need for a warning in Australian law. The result could be that New Zealand’s law on fairness is not significantly different from Australia’s.
That, however, could be said to mean that the law on fair trials is equally unsatisfactory in each country.
Wednesday, April 26, 2006
Public policy and degrees of misconduct
Public policy exclusion of evidence is sometimes still spoken of by courts as if it was a means of protecting the accused’s right to a fair trial. This was done yesterday by the Privy Council in Williams v R (Jamaica) [2006] UKPC 21 (25 April 2006). A statement had been obtained from the accused when he was aged 12, in breach of the procedures laid down for the interviewing of young suspects (para 27). The Board concluded, at para 28:
"…the circumstances of the appellant's detention and of the taking of the statement were such as to create a significant amount of unfairness to him. Their Lordships cannot conclude that in all the circumstances of the case it was fair to admit the statement."
While the Board was not expressly referring to trial fairness, the expressions "unfairness to him" and it not being "fair to admit" the statement do suggest that trial fairness is the object of concern. Another point in this extract that is misleading is the expression "a significant amount of unfairness".
My view is that in these situations the courts are not excluding the evidence for reasons that have anything to do with trial fairness. The probative value of the evidence is not relevant to the decision on admissibility in these cases (see, for example, my blog entry for 4 April 2006 concerning "cogency"). It is not the accused’s guilt that matters, it is the objectionable way in which the evidence was obtained that is critical. This is why the discretion, in this area, is best called the public policy discretion. It is true that, historically, this discretion evolved from – and remains part of - the court’s inherent power to prevent an abuse of process. In turn, that power has been referred to as giving rise to a discretion to exclude evidence in the interests of "fairness", or, sometimes, "fairness to the accused". But these are not references to trial fairness.
One of the reasons for making this distinction between the public policy exclusion of evidence, and the exclusion of evidence to ensure trial fairness, is to preserve the concept of the absolute nature of the accused’s right to a fair trial. In the above quotation from para 28 of Williams, the expression "a significant amount of unfairness" could, wrongly, suggest that fairness of trial exists in gradations, and that some forms of trial unfairness are acceptable. I have given examples of misuse of this terminology in "The Duty to Prevent an Abuse of Process by Staying Criminal Proceedings" in Essays on Criminal Law – A Tribute to Professor Gerald Orchard (Brookers Ltd, 2004), 133, 146.
What, it is respectfully suggested, the Privy Council should have said in Williams, is that the breaches of the Directions on the conduct of interviews of young persons that occurred in this case were sufficiently serious that admission of the statement obtained thereby would be an abuse of process. The evidence was excluded to prevent the administration of justice being brought into disrepute, as would occur if the courts appeared to endorse the police misconduct. In that context it is appropriate, if one must use the "fairness" terminology, to speak of degrees of unfairness, because official misconduct comes in degrees.
There may be cases where trial fairness could be relevant to the admission into evidence of a statement that had been obtained wrongfully. But it must be remembered that, at the stage when the ruling on admissibility has to be made, the effects of admission on the defence will not be known: the Judge will not know whether the defendant intends to give or call evidence, let alone what any such evidence would be. There is a difference between using fairness as grounds for excluding evidence, and using fairness in considering, as an appellate court, whether to apply the proviso. It is the appellate court that is best placed to evaluate the effect of an erroneous admission of evidence, and, when the public policy discretion has been exercised in favour of admitting the evidence, it may be only retrospectively that the trial can be said to have been unfair.
"…the circumstances of the appellant's detention and of the taking of the statement were such as to create a significant amount of unfairness to him. Their Lordships cannot conclude that in all the circumstances of the case it was fair to admit the statement."
While the Board was not expressly referring to trial fairness, the expressions "unfairness to him" and it not being "fair to admit" the statement do suggest that trial fairness is the object of concern. Another point in this extract that is misleading is the expression "a significant amount of unfairness".
My view is that in these situations the courts are not excluding the evidence for reasons that have anything to do with trial fairness. The probative value of the evidence is not relevant to the decision on admissibility in these cases (see, for example, my blog entry for 4 April 2006 concerning "cogency"). It is not the accused’s guilt that matters, it is the objectionable way in which the evidence was obtained that is critical. This is why the discretion, in this area, is best called the public policy discretion. It is true that, historically, this discretion evolved from – and remains part of - the court’s inherent power to prevent an abuse of process. In turn, that power has been referred to as giving rise to a discretion to exclude evidence in the interests of "fairness", or, sometimes, "fairness to the accused". But these are not references to trial fairness.
One of the reasons for making this distinction between the public policy exclusion of evidence, and the exclusion of evidence to ensure trial fairness, is to preserve the concept of the absolute nature of the accused’s right to a fair trial. In the above quotation from para 28 of Williams, the expression "a significant amount of unfairness" could, wrongly, suggest that fairness of trial exists in gradations, and that some forms of trial unfairness are acceptable. I have given examples of misuse of this terminology in "The Duty to Prevent an Abuse of Process by Staying Criminal Proceedings" in Essays on Criminal Law – A Tribute to Professor Gerald Orchard (Brookers Ltd, 2004), 133, 146.
What, it is respectfully suggested, the Privy Council should have said in Williams, is that the breaches of the Directions on the conduct of interviews of young persons that occurred in this case were sufficiently serious that admission of the statement obtained thereby would be an abuse of process. The evidence was excluded to prevent the administration of justice being brought into disrepute, as would occur if the courts appeared to endorse the police misconduct. In that context it is appropriate, if one must use the "fairness" terminology, to speak of degrees of unfairness, because official misconduct comes in degrees.
There may be cases where trial fairness could be relevant to the admission into evidence of a statement that had been obtained wrongfully. But it must be remembered that, at the stage when the ruling on admissibility has to be made, the effects of admission on the defence will not be known: the Judge will not know whether the defendant intends to give or call evidence, let alone what any such evidence would be. There is a difference between using fairness as grounds for excluding evidence, and using fairness in considering, as an appellate court, whether to apply the proviso. It is the appellate court that is best placed to evaluate the effect of an erroneous admission of evidence, and, when the public policy discretion has been exercised in favour of admitting the evidence, it may be only retrospectively that the trial can be said to have been unfair.
Seeing and believing
Eyewitness identification evidence may need to be treated with some circumspection, and juries are usually given a direction on the special need for caution before relying on such evidence. In some jurisdictions, these warnings are required by statute, although, as is the case in New Zealand, the points required to be covered are not spelt out in great detail. The common law antecedent of these directions is known as the Turnbull direction, originating in the English Court of Appeal’s decision R v Turnbull [1977] QB 224.
In Edwards v R (Jamaica) [2006] UKPC 23 (25 April 2006) the Privy Council indicated that there are some practices that should not be permitted at trials where identification is an issue and the prosecution relies on evidence of an eyewitness to the offence. These are:
(1) The eyewitness should not be permitted to identify the accused in the dock as the offender. The prosecution should, in general, adopt other means for establishing that the accused is the person who was arrested (para 22):
"… it is only in the most exceptional circumstances that any form of dock identification is permissible: cf the discussion in the Scottish devolution appeal Holland v HM Advocate [2005] UKPC D1, 2005 SLT 563. It may be borne in mind that this was far from being a first identification and it can fairly be said that the dock identification may have had little impact on the minds of the jury. It is, however, an undesirable practice in general and other means should be adopted of establishing that the defendant in the dock is the man who was arrested for the offence charged."
(2) A police officer should not be permitted to give in evidence his opinion on why an ID parade was not considered to be necessary (para 23).
(3) The police should not give in evidence the fact that a warrant was obtained for the arrest of the accused, or of the information on which the police acted, as this is hearsay and potentially highly prejudicial (para 23).
(4) The police should not give in evidence the fact that a potential witness was unwilling to come forward (para 23).
(5) The police should avoid confronting the eyewitness with the suspect (para 25).
There is, at this point – para 25 – a possibly unintentional suggestion by the Board that hearsay evidence might be given to establish the link between the person described to the police as the offender, and the suspect:
"The arresting officer would have been quite capable of establishing that the appellant was the person pointed out to him by Bailey [the eyewitness] near the Mango Tree Bar, so it was unnecessary to ask Bailey to come to the station to confirm that."
This, however, should be read as referring to "establishing" in an investigatory, pre-trial, sense, and not as "establishing" in evidence at trial.
In this case, the eyewitness to the killing had been standing next to the victim, and the bullet that killed the victim had passed through the eyewitness. The offender had been trying to rob the eyewitness, who suddenly and unsuccessfully tried to grab the gun. The eyewitness was hospitalised for 4 weeks, and it was 2 months after the killing before he saw the accused near the same bar. He claimed that the accused was the offender. In his first description of the offender, given 5 days after the incident while he was in hospital, the eyewitness failed to mention a prominent birthmark on the accused’s face, he was unable to say what sort of trousers the offender was wearing, and he claimed that the time he had to observe the offender was a couple of minutes although it must have been shorter than that. The circumstances in which the offender was observed were good: inside a bar in the morning with good lighting.
The Privy Council was concerned that there could have been an erroneous association of ideas arising from the location of the offence and the subsequent identification being similar, and that the judge had not adequately warned the jury of the dangers in accepting the evidence. The conviction was therefore unsafe.
In New Zealand, the Evidence Bill 2006, clause 122, almost exactly repeats the current provision on the need for judicial warning: Crimes Act 1961, s 344D. The slight difference is that instead of requiring the judge to "include the reason for the warning", the Bill requires the judge to "warn the jury that a mistaken identification can result in a serious miscarriage of justice". The need for a warning arises "In a criminal proceeding tried with a jury in which the case against the defendant depends wholly or substantially on the correctness of 1 or more visual or voice identifications of the defendant or any other person …". The inclusion of voice identification is new to the Bill.
The Bill contains other provisions relating to the admissibility of visual identification evidence. It is important to note that here the concern is with admissibility, not with the way admissible evidence is treated at trial. These provisions, for visual identification, are in clause 41, and they concern the implications of whether or not a formal identification procedure was used at the investigatory stage. The criterion for admissibility is proof, on the balance of probabilities, that the evidence is reliable. The Bill does not say to what extent, if any, this reliability should be assessed by reference to the other evidence in the case. It seems plain that the other evidence should not be included in the assessment of the reliability of the visual identification evidence, and that the focus should be on the circumstances in which the identification was made.
In Edwards v R (Jamaica) [2006] UKPC 23 (25 April 2006) the Privy Council indicated that there are some practices that should not be permitted at trials where identification is an issue and the prosecution relies on evidence of an eyewitness to the offence. These are:
(1) The eyewitness should not be permitted to identify the accused in the dock as the offender. The prosecution should, in general, adopt other means for establishing that the accused is the person who was arrested (para 22):
"… it is only in the most exceptional circumstances that any form of dock identification is permissible: cf the discussion in the Scottish devolution appeal Holland v HM Advocate [2005] UKPC D1, 2005 SLT 563. It may be borne in mind that this was far from being a first identification and it can fairly be said that the dock identification may have had little impact on the minds of the jury. It is, however, an undesirable practice in general and other means should be adopted of establishing that the defendant in the dock is the man who was arrested for the offence charged."
(2) A police officer should not be permitted to give in evidence his opinion on why an ID parade was not considered to be necessary (para 23).
(3) The police should not give in evidence the fact that a warrant was obtained for the arrest of the accused, or of the information on which the police acted, as this is hearsay and potentially highly prejudicial (para 23).
(4) The police should not give in evidence the fact that a potential witness was unwilling to come forward (para 23).
(5) The police should avoid confronting the eyewitness with the suspect (para 25).
There is, at this point – para 25 – a possibly unintentional suggestion by the Board that hearsay evidence might be given to establish the link between the person described to the police as the offender, and the suspect:
"The arresting officer would have been quite capable of establishing that the appellant was the person pointed out to him by Bailey [the eyewitness] near the Mango Tree Bar, so it was unnecessary to ask Bailey to come to the station to confirm that."
This, however, should be read as referring to "establishing" in an investigatory, pre-trial, sense, and not as "establishing" in evidence at trial.
In this case, the eyewitness to the killing had been standing next to the victim, and the bullet that killed the victim had passed through the eyewitness. The offender had been trying to rob the eyewitness, who suddenly and unsuccessfully tried to grab the gun. The eyewitness was hospitalised for 4 weeks, and it was 2 months after the killing before he saw the accused near the same bar. He claimed that the accused was the offender. In his first description of the offender, given 5 days after the incident while he was in hospital, the eyewitness failed to mention a prominent birthmark on the accused’s face, he was unable to say what sort of trousers the offender was wearing, and he claimed that the time he had to observe the offender was a couple of minutes although it must have been shorter than that. The circumstances in which the offender was observed were good: inside a bar in the morning with good lighting.
The Privy Council was concerned that there could have been an erroneous association of ideas arising from the location of the offence and the subsequent identification being similar, and that the judge had not adequately warned the jury of the dangers in accepting the evidence. The conviction was therefore unsafe.
In New Zealand, the Evidence Bill 2006, clause 122, almost exactly repeats the current provision on the need for judicial warning: Crimes Act 1961, s 344D. The slight difference is that instead of requiring the judge to "include the reason for the warning", the Bill requires the judge to "warn the jury that a mistaken identification can result in a serious miscarriage of justice". The need for a warning arises "In a criminal proceeding tried with a jury in which the case against the defendant depends wholly or substantially on the correctness of 1 or more visual or voice identifications of the defendant or any other person …". The inclusion of voice identification is new to the Bill.
The Bill contains other provisions relating to the admissibility of visual identification evidence. It is important to note that here the concern is with admissibility, not with the way admissible evidence is treated at trial. These provisions, for visual identification, are in clause 41, and they concern the implications of whether or not a formal identification procedure was used at the investigatory stage. The criterion for admissibility is proof, on the balance of probabilities, that the evidence is reliable. The Bill does not say to what extent, if any, this reliability should be assessed by reference to the other evidence in the case. It seems plain that the other evidence should not be included in the assessment of the reliability of the visual identification evidence, and that the focus should be on the circumstances in which the identification was made.
Tuesday, April 04, 2006
Balancing "cogency" of wrongfully obtained evidence
Simmons v R (Bahamas) [2006] UKPC 19 (3 April 2006) gives us an opportunity to highlight the distinction between "fairness" when that term is used in the context of the exercise of the public policy discretion to exclude evidence, and "fairness" in the separate sense of trial fairness for the accused.
The two appellants were convicted of murder. Included in the evidence against them were statements they had made to the police. These statements, referred to as confessions, although they were partly exculpatory (and, one accused who gave evidence adopted what he had said to the police), were obtained in breach of the appellants’ constitutional right to be informed of the availability of legal advice before they spoke to the police.
Breach of that right gives rise to a judicial balancing exercise to determine whether to admit or exclude the statement. This balancing exercise is a public policy discretion, having nothing to do with the fairness of the trial. It arises because of the conflict between, on the one hand, the public’s right to have suspects prosecuted and offenders brought to justice, and, on the other hand, the public’s right to have officials comply with the law in the investigation of offences. The only sanction that courts can impose on officials who act in breach of the law in this context is to exclude evidence that they obtain thereby.
Sometimes, in carrying out this balancing exercise, judges say that the cogency of the evidence is a factor strongly favouring its admission. An important observation on this point was made by the Privy Council in this case, para 26:
"The Board has one other concern about the judge's balancing of the respective interests of the prosecution and the defence on the issue of fairness: the evident importance which she attached to the confession being "very cogent evidence against Simmons." Their Lordships cannot accept that the potency of such evidence is necessarily a factor in favour of its admission. If, by denying a suspect his constitutional right to see a lawyer and perhaps be advised against making a statement, the state's case is thereby strengthened by a confession, it is by no means self-evident that fairness demands its admission rather than its exclusion."
However, in New Zealand the cogency of the evidence is routinely taken into account in this balancing exercise: R v Shaheed [2002] 2 NZLR 377 (CA), especially at paras 151-152. At para 151 the joint judgment (Richardson P, Blanchard and Tipping JJ) states: "A trial is not to be regarded as potentially unfair by reason of the admission of evidence unless that evidence may lead to an unsafe verdict." That, with respect, needs to be read with some caution. A safe verdict is not a cure-all for trial unfairness. That point was made strongly by Lord Steyn (Sir Swinton Thomas concurring) in Ebanks v R (Cayman Is) [2006] UKPC 16 (27 March 2006), blogged 28.3.06, at para 40. The Supreme Court acknowledged the same point in Sungsuwan v R [2005] NZSC 57 (25 August 2005), blogged 26.8.05, per Elias CJ at para 6 (putting as alternatives trial unfairness and unsafe verdicts), Tipping J at 112 (lack of a fair trial is itself a miscarriage of justice without the need to consider its effect on the verdict).
If I may, I should add that "cogency", which means being convincing or compelling, is always a matter for the jury. It is usually called the "weight" that is to be given to the evidence. Weight is separate from the question of admissibility, except on occasions where it is possible for a judge to conclude that no reasonable jury could give the evidence any weight. The Privy Council is correct to see no reason to link cogency to admissibility. However, this is not the end of the matter. What is being considered is not the admissibility of the evidence, but rather whether, as admissible evidence, it should be excluded because of the objectionable way in which it was obtained. The question whether convincing or compelling admissible evidence should be excluded is, appropriately, part of the weighing of the public interest in bringing suspects to justice. There is, though, a difficulty: the cogency of the evidence is also appropriately considered on the other side of the balance, where weight has to be given to the public interest in prevention of such abuse of process as would bring disrepute to the administration of justice. One might properly object to the inclusion of "cogency" in the weighing process on the basis that it falls on both sides of the scales.
That aside, having said that the exclusion of evidence to prevent the trial being unfair to the accused is separate from the public policy discretion, I should now make the distinction clear. A fair trial for the accused is one where the law is accurately applied and the facts are determined without bias. There may be flow-on effects of a wrongful exercise of the public policy discretion, in the sense that the trial may not be one where the law has been accurately applied. The question, in terms of trial fairness, of the significance of the error, will be determined, not by the strength of the other evidence against the accused, but by whether the error put the accused at a disadvantage in the trial. I made this point in the blog entry on 29 March 2006, discussing Gilbert v R (Grenada) [2006] UKPC 15 (27 March 2006).
Simmons is an example of the error in applying the public policy discretion not affecting the fairness of the trial. The statements in issue were partly exculpatory and the accused who gave evidence adopted what he had said. The judgment does, however, focus on the strength of the other evidence of guilt, concluding, para 31, that acquittals would have defied all reason. The relevance of this point is that the proviso could be applied: the error in admitting the statements did not amount to a "substantial miscarriage of justice." The error caused neither trial unfairness, nor the loss of a real chance of acquittal.
The two appellants were convicted of murder. Included in the evidence against them were statements they had made to the police. These statements, referred to as confessions, although they were partly exculpatory (and, one accused who gave evidence adopted what he had said to the police), were obtained in breach of the appellants’ constitutional right to be informed of the availability of legal advice before they spoke to the police.
Breach of that right gives rise to a judicial balancing exercise to determine whether to admit or exclude the statement. This balancing exercise is a public policy discretion, having nothing to do with the fairness of the trial. It arises because of the conflict between, on the one hand, the public’s right to have suspects prosecuted and offenders brought to justice, and, on the other hand, the public’s right to have officials comply with the law in the investigation of offences. The only sanction that courts can impose on officials who act in breach of the law in this context is to exclude evidence that they obtain thereby.
Sometimes, in carrying out this balancing exercise, judges say that the cogency of the evidence is a factor strongly favouring its admission. An important observation on this point was made by the Privy Council in this case, para 26:
"The Board has one other concern about the judge's balancing of the respective interests of the prosecution and the defence on the issue of fairness: the evident importance which she attached to the confession being "very cogent evidence against Simmons." Their Lordships cannot accept that the potency of such evidence is necessarily a factor in favour of its admission. If, by denying a suspect his constitutional right to see a lawyer and perhaps be advised against making a statement, the state's case is thereby strengthened by a confession, it is by no means self-evident that fairness demands its admission rather than its exclusion."
However, in New Zealand the cogency of the evidence is routinely taken into account in this balancing exercise: R v Shaheed [2002] 2 NZLR 377 (CA), especially at paras 151-152. At para 151 the joint judgment (Richardson P, Blanchard and Tipping JJ) states: "A trial is not to be regarded as potentially unfair by reason of the admission of evidence unless that evidence may lead to an unsafe verdict." That, with respect, needs to be read with some caution. A safe verdict is not a cure-all for trial unfairness. That point was made strongly by Lord Steyn (Sir Swinton Thomas concurring) in Ebanks v R (Cayman Is) [2006] UKPC 16 (27 March 2006), blogged 28.3.06, at para 40. The Supreme Court acknowledged the same point in Sungsuwan v R [2005] NZSC 57 (25 August 2005), blogged 26.8.05, per Elias CJ at para 6 (putting as alternatives trial unfairness and unsafe verdicts), Tipping J at 112 (lack of a fair trial is itself a miscarriage of justice without the need to consider its effect on the verdict).
If I may, I should add that "cogency", which means being convincing or compelling, is always a matter for the jury. It is usually called the "weight" that is to be given to the evidence. Weight is separate from the question of admissibility, except on occasions where it is possible for a judge to conclude that no reasonable jury could give the evidence any weight. The Privy Council is correct to see no reason to link cogency to admissibility. However, this is not the end of the matter. What is being considered is not the admissibility of the evidence, but rather whether, as admissible evidence, it should be excluded because of the objectionable way in which it was obtained. The question whether convincing or compelling admissible evidence should be excluded is, appropriately, part of the weighing of the public interest in bringing suspects to justice. There is, though, a difficulty: the cogency of the evidence is also appropriately considered on the other side of the balance, where weight has to be given to the public interest in prevention of such abuse of process as would bring disrepute to the administration of justice. One might properly object to the inclusion of "cogency" in the weighing process on the basis that it falls on both sides of the scales.
That aside, having said that the exclusion of evidence to prevent the trial being unfair to the accused is separate from the public policy discretion, I should now make the distinction clear. A fair trial for the accused is one where the law is accurately applied and the facts are determined without bias. There may be flow-on effects of a wrongful exercise of the public policy discretion, in the sense that the trial may not be one where the law has been accurately applied. The question, in terms of trial fairness, of the significance of the error, will be determined, not by the strength of the other evidence against the accused, but by whether the error put the accused at a disadvantage in the trial. I made this point in the blog entry on 29 March 2006, discussing Gilbert v R (Grenada) [2006] UKPC 15 (27 March 2006).
Simmons is an example of the error in applying the public policy discretion not affecting the fairness of the trial. The statements in issue were partly exculpatory and the accused who gave evidence adopted what he had said. The judgment does, however, focus on the strength of the other evidence of guilt, concluding, para 31, that acquittals would have defied all reason. The relevance of this point is that the proviso could be applied: the error in admitting the statements did not amount to a "substantial miscarriage of justice." The error caused neither trial unfairness, nor the loss of a real chance of acquittal.
Monday, April 03, 2006
You may not get what you want ...
The crime of attempting to commit a crime has come under scrutiny in L v R [2006] NZSC 18 (30 March 2006), which concerned the state of mind required for liability.
The facts of L were extraordinary. The charge, faced by L, a 49 year old woman, was attempting to sexually violate a 15 year old male. She tried to cause his (presumably erect) penis to penetrate her vagina, being reckless as to whether or not he consented to that. In the circumstances, it seems to have been the case that his lack of consent should have been apparent to her.
The legal question was whether, to be liable for the attempt, L had to intend that he not consent, or was it sufficient that she merely be reckless (ie that she knowingly took a risk) as to his lack of consent. The question arose because the crime of attempting to commit a crime requires the accused to have an intent to commit that crime.
Plainly, L intended that the penis enter her own vagina, and she did acts in an effort to bring that about. Was that intent sufficient? Or, in addition, did she need to be reckless about the male’s lack of consent? Or, did she need to intend both penetration and his lack of consent?
There has been some division among the jurists on this general issue. As Simester and Brookbanks, Principles of Criminal Law, point out at para 6.1.1, the decision is one of public policy. Criminalising attempts is often justified because of the danger posed to society by a person who sets out to cause harm. That is, one whose intention is dangerous, albeit that his (here, her) acts may not constitute actual harm. This sort of deliberation suggests that intention should be given a narrow meaning, so as to exclude people who are reckless about circumstances such as consent. But, that narrow meaning would create anomalies (as has been pointed out by Professor Ashworth, cited ibid): imagine two men who set out to have sexual intercourse with two women. Both men are reckless as to consent, and neither woman consents. One man succeeds in penetration, and is guilty of rape. The other fails to penetrate, and, under this narrow view, is guilty of neither rape nor attempt to rape.
In L the Supreme Court held that recklessness (in the sense of absence of a reasonable belief in consent) as to circumstances is sufficient for liability for the attempt: what has to be intended here is the act of penetration.
All well and good. We are left with a lingering image of the facts of the case. In future, will people charged with sexual violation claim they did not consent, and that the other person should be charged?
The facts of L were extraordinary. The charge, faced by L, a 49 year old woman, was attempting to sexually violate a 15 year old male. She tried to cause his (presumably erect) penis to penetrate her vagina, being reckless as to whether or not he consented to that. In the circumstances, it seems to have been the case that his lack of consent should have been apparent to her.
The legal question was whether, to be liable for the attempt, L had to intend that he not consent, or was it sufficient that she merely be reckless (ie that she knowingly took a risk) as to his lack of consent. The question arose because the crime of attempting to commit a crime requires the accused to have an intent to commit that crime.
Plainly, L intended that the penis enter her own vagina, and she did acts in an effort to bring that about. Was that intent sufficient? Or, in addition, did she need to be reckless about the male’s lack of consent? Or, did she need to intend both penetration and his lack of consent?
There has been some division among the jurists on this general issue. As Simester and Brookbanks, Principles of Criminal Law, point out at para 6.1.1, the decision is one of public policy. Criminalising attempts is often justified because of the danger posed to society by a person who sets out to cause harm. That is, one whose intention is dangerous, albeit that his (here, her) acts may not constitute actual harm. This sort of deliberation suggests that intention should be given a narrow meaning, so as to exclude people who are reckless about circumstances such as consent. But, that narrow meaning would create anomalies (as has been pointed out by Professor Ashworth, cited ibid): imagine two men who set out to have sexual intercourse with two women. Both men are reckless as to consent, and neither woman consents. One man succeeds in penetration, and is guilty of rape. The other fails to penetrate, and, under this narrow view, is guilty of neither rape nor attempt to rape.
In L the Supreme Court held that recklessness (in the sense of absence of a reasonable belief in consent) as to circumstances is sufficient for liability for the attempt: what has to be intended here is the act of penetration.
All well and good. We are left with a lingering image of the facts of the case. In future, will people charged with sexual violation claim they did not consent, and that the other person should be charged?
Wednesday, March 29, 2006
Good character again
Once again, see Index, the topic of the significance of absence of a good character direction has concerned the Privy Council: Gilbert v R (Grenada) [2006] UKPC 15 (27 March 2006). Their Lordships indicated that a forthcoming case also concerns this subject: Bhola v The State (Trinidad and Tobago) [2006].
Gilbert makes the point that there is a duty on counsel for the defence to ensure that the trial judge understands that a good character direction is sought: para 11, citing Thompson v R [1998] AC 811 (PC). Omission of the direction requires attention to two matters: was the trial thereby rendered unfair to the accused, and did the omission render the verdict unsafe? (citing for these, Teeluck and John v The State [2005] UKPC 14 at para 39, blogged here, 1 April 2005).
Whereas it may have seemed on some readings that the law requires the direction to be given as a matter of course, in Gilbert it was emphasised that the requirement is that the direction should "normally" be given (para 15, citing R v Aziz [1996] 1 AC 41). That is, the issues of fairness and effect on the result are examined in the particular circumstances of each case. That, of course, is obvious for the result point, and Gilbert makes it clear that fairness is also a matter to be determined on the particular circumstances. There are, thus, no hard or inflexible rules about whether fairness requires the direction, rather the nature of the issues in each case must be examined: para 20, citing Lord Bingham in Singh v The State [2005] UKPC 35 at para 14.
Here, then, the circumstantial evidence of guilt was substantial (para 18), and the accused’s good character was wholly outweighed by the nature and coherence of the circumstantial evidence (applying a phrase used by Lord Hope in Balson v The State [2005] UKPC 6, para 37). The absence of the good character direction therefore had no effect on the fairness of the trial or on its result.
One must observe, with respect, that the question of fairness, which is a procedural matter, will be swamped by the question of result, which is an evidential matter, unless the two are kept distinct. Certainly, the Privy Council here, at para 19, noted that the trial was fair in all other respects, even being "unduly fair" [sic] in that the judge refrained from commenting on the accused's failure to give evidence. Nevertheless, the risk remains that the impression will be given that unfair procedure may be cured by strong evidence, which is undoubtedly not what the Privy Council intended to convey.
The difficulty is that a good character direction is aimed at assisting the jury to evaluate the weight to be given to the evidence, and here it was the complainant's evidence. In fairness terms, the direction is concerned with the avoidance of bias. What is relevant to bias is, not the strength of the prosecution evidence, but whether the absence of the direction put the accused at a disadvantage. On the facts of Gilbert, where the accused was a minister of religion, his previous good character was probably taken for granted by the jury. Therefore, it could safely be concluded that there was no unfairness to him occasioned by the absence of a good character direction.
Gilbert makes the point that there is a duty on counsel for the defence to ensure that the trial judge understands that a good character direction is sought: para 11, citing Thompson v R [1998] AC 811 (PC). Omission of the direction requires attention to two matters: was the trial thereby rendered unfair to the accused, and did the omission render the verdict unsafe? (citing for these, Teeluck and John v The State [2005] UKPC 14 at para 39, blogged here, 1 April 2005).
Whereas it may have seemed on some readings that the law requires the direction to be given as a matter of course, in Gilbert it was emphasised that the requirement is that the direction should "normally" be given (para 15, citing R v Aziz [1996] 1 AC 41). That is, the issues of fairness and effect on the result are examined in the particular circumstances of each case. That, of course, is obvious for the result point, and Gilbert makes it clear that fairness is also a matter to be determined on the particular circumstances. There are, thus, no hard or inflexible rules about whether fairness requires the direction, rather the nature of the issues in each case must be examined: para 20, citing Lord Bingham in Singh v The State [2005] UKPC 35 at para 14.
Here, then, the circumstantial evidence of guilt was substantial (para 18), and the accused’s good character was wholly outweighed by the nature and coherence of the circumstantial evidence (applying a phrase used by Lord Hope in Balson v The State [2005] UKPC 6, para 37). The absence of the good character direction therefore had no effect on the fairness of the trial or on its result.
One must observe, with respect, that the question of fairness, which is a procedural matter, will be swamped by the question of result, which is an evidential matter, unless the two are kept distinct. Certainly, the Privy Council here, at para 19, noted that the trial was fair in all other respects, even being "unduly fair" [sic] in that the judge refrained from commenting on the accused's failure to give evidence. Nevertheless, the risk remains that the impression will be given that unfair procedure may be cured by strong evidence, which is undoubtedly not what the Privy Council intended to convey.
The difficulty is that a good character direction is aimed at assisting the jury to evaluate the weight to be given to the evidence, and here it was the complainant's evidence. In fairness terms, the direction is concerned with the avoidance of bias. What is relevant to bias is, not the strength of the prosecution evidence, but whether the absence of the direction put the accused at a disadvantage. On the facts of Gilbert, where the accused was a minister of religion, his previous good character was probably taken for granted by the jury. Therefore, it could safely be concluded that there was no unfairness to him occasioned by the absence of a good character direction.
Tuesday, March 28, 2006
Two points of conduct
In Ebanks v R (Cayman Islands) [2006] UKPC 16 (27 March 2006) the Privy Council reminded us of a couple of fundamental points:
- when a client instructs that he will not give evidence, that instruction must be in writing and signed by the client.
- counsel in cross-examining must put his client’s case, including allegations that the witness is lying, even if the client is not going to give, or call, evidence to establish that fact.
In Ebanks, the appeal against conviction for murder was brought on the grounds of failure by counsel to carry out the client’s instructions in the conduct of his defence, and that this resulted in an unfair trial.
Here again, we have the difficult topic of trial fairness, and again the Privy Council divided 3 – 2 on this issue. We saw a similar split in Howse v R (see these blogs for 10 October 2004), in a Board that was differently constituted but with some overlap in membership. In Ebanks, Lord Rodger gave the decision of the majority (Lords Carswell and Mance agreeing) upholding the conviction, and the dissenters were Lord Steyn and Sir Swinton Thomas. In Howse, the majority, upholding the convictions, were Lords Hutton and Carswell, and the dissenters were Lord Rodger and Sir Andrew Leggatt.
In Ebanks, the reason that persuaded the majority that there had not been unfairness emerged from a consideration of counsel’s conduct at trial, when he appeared to be regularly consulting with his client in a way that was consistent with a carefully conducted defence. In those circumstances, it was possible, notwithstanding the absence of a written record, to reject the suggestion that counsel had not followed the client’s instructions.
The minority in Ebanks focused on the conduct of the hearing in the Cayman Islands Court of Appeal. They held that this had involved a failure of due process, because the Court had wrongly refused to allow the appellant to supplement his affidavit with oral evidence. That Court had also been wrong in its understanding of the duty of counsel in cross-examining to put the client’s case that the police witnesses were lying. The Court had inferred that these allegations were not put because Mr Ebanks had instructed that he would not give evidence, and that his post-conviction claim that he wanted to give evidence was wrong (para 42 per Lord Steyn). This, Lord Steyn (with Sir Swinton Thomas agreeing) held, was a material irregularity, potentially prejudicing the appellant. It seems that in his affidavit filed in the Court of Appeal, Mr Ebanks had not addressed the point about what he had instructed counsel about whether he would give evidence. Lord Steyn considered that if he had been allowed to give oral evidence on that, counsel may well have agreed that he had indeed given that instruction. If that had happened, he would have been denied a fair trial. Sir Swinton Thomas agreed, emphasising the significance of the absence of a written record of the client's instructions, despite his waiver of privilege.
Process takes priority over substance. It cannot be said that guilt can be determined reliably at an unfair trial. Lord Steyn applied, mutatis mutandis, a passage from Wade and Forsyth, Administrative Law, 9th Ed (2005) at 506-508 (see para 40 of his judgment - here I have italisised the passage from the textbook):
" "Procedural objections are often raised by unmeritorious parties. Judges may then be temped to refuse relief on the ground that a fair hearing could have made no difference to the result. But in principle it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudged unfairly. Lord Wright once said:
'If the principles of natural justice are violated in respect of any decision it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.'
The dangers were vividly expressed by Megarry J, criticising the contention that 'the result is obvious from the start':
'As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.'
. . . Judges are naturally inclined to use their discretion when a plea of breach of natural justice is used as the last refuge of a claimant with a bad case. But that should not be allowed to weaken the basic principle that fair procedure comes first, and that it is only after hearing both sides that the merits can be properly considered."
Although made in the administrative law context, these observations are also germane to the question whether the Court of Appeal could have declined to hear oral evidence on the ground that it would make no difference. To have decided the case on such a basis would have been unfair and contrary to due process. After all, it is entirely possible (and even likely) that Mr St. John Stevens [counsel for Mr Ebanks at trial]would have made the same core concession that Mr McGrath [Attorney for Mr Ebanks]made, viz that the Appellant insisted that he made no confession to the police."
One must, of course, make allowances for the differing circumstances of each case, but it is interesting to observe that a judge (Lord Rodger) who could uphold the trial in Ebanks as being fair, was such a strong dissenter in Howse.
The dicta in this case about counsel’s duty to put the case to witnesses in cross-examination, even where evidence is not being called to establish the points, in effect amplify Rule 10.02 of our Rules of Professional Conduct for Barristers and Solicitors.
- when a client instructs that he will not give evidence, that instruction must be in writing and signed by the client.
- counsel in cross-examining must put his client’s case, including allegations that the witness is lying, even if the client is not going to give, or call, evidence to establish that fact.
In Ebanks, the appeal against conviction for murder was brought on the grounds of failure by counsel to carry out the client’s instructions in the conduct of his defence, and that this resulted in an unfair trial.
Here again, we have the difficult topic of trial fairness, and again the Privy Council divided 3 – 2 on this issue. We saw a similar split in Howse v R (see these blogs for 10 October 2004), in a Board that was differently constituted but with some overlap in membership. In Ebanks, Lord Rodger gave the decision of the majority (Lords Carswell and Mance agreeing) upholding the conviction, and the dissenters were Lord Steyn and Sir Swinton Thomas. In Howse, the majority, upholding the convictions, were Lords Hutton and Carswell, and the dissenters were Lord Rodger and Sir Andrew Leggatt.
In Ebanks, the reason that persuaded the majority that there had not been unfairness emerged from a consideration of counsel’s conduct at trial, when he appeared to be regularly consulting with his client in a way that was consistent with a carefully conducted defence. In those circumstances, it was possible, notwithstanding the absence of a written record, to reject the suggestion that counsel had not followed the client’s instructions.
The minority in Ebanks focused on the conduct of the hearing in the Cayman Islands Court of Appeal. They held that this had involved a failure of due process, because the Court had wrongly refused to allow the appellant to supplement his affidavit with oral evidence. That Court had also been wrong in its understanding of the duty of counsel in cross-examining to put the client’s case that the police witnesses were lying. The Court had inferred that these allegations were not put because Mr Ebanks had instructed that he would not give evidence, and that his post-conviction claim that he wanted to give evidence was wrong (para 42 per Lord Steyn). This, Lord Steyn (with Sir Swinton Thomas agreeing) held, was a material irregularity, potentially prejudicing the appellant. It seems that in his affidavit filed in the Court of Appeal, Mr Ebanks had not addressed the point about what he had instructed counsel about whether he would give evidence. Lord Steyn considered that if he had been allowed to give oral evidence on that, counsel may well have agreed that he had indeed given that instruction. If that had happened, he would have been denied a fair trial. Sir Swinton Thomas agreed, emphasising the significance of the absence of a written record of the client's instructions, despite his waiver of privilege.
Process takes priority over substance. It cannot be said that guilt can be determined reliably at an unfair trial. Lord Steyn applied, mutatis mutandis, a passage from Wade and Forsyth, Administrative Law, 9th Ed (2005) at 506-508 (see para 40 of his judgment - here I have italisised the passage from the textbook):
" "Procedural objections are often raised by unmeritorious parties. Judges may then be temped to refuse relief on the ground that a fair hearing could have made no difference to the result. But in principle it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudged unfairly. Lord Wright once said:
'If the principles of natural justice are violated in respect of any decision it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.'
The dangers were vividly expressed by Megarry J, criticising the contention that 'the result is obvious from the start':
'As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.'
. . . Judges are naturally inclined to use their discretion when a plea of breach of natural justice is used as the last refuge of a claimant with a bad case. But that should not be allowed to weaken the basic principle that fair procedure comes first, and that it is only after hearing both sides that the merits can be properly considered."
Although made in the administrative law context, these observations are also germane to the question whether the Court of Appeal could have declined to hear oral evidence on the ground that it would make no difference. To have decided the case on such a basis would have been unfair and contrary to due process. After all, it is entirely possible (and even likely) that Mr St. John Stevens [counsel for Mr Ebanks at trial]would have made the same core concession that Mr McGrath [Attorney for Mr Ebanks]made, viz that the Appellant insisted that he made no confession to the police."
One must, of course, make allowances for the differing circumstances of each case, but it is interesting to observe that a judge (Lord Rodger) who could uphold the trial in Ebanks as being fair, was such a strong dissenter in Howse.
The dicta in this case about counsel’s duty to put the case to witnesses in cross-examination, even where evidence is not being called to establish the points, in effect amplify Rule 10.02 of our Rules of Professional Conduct for Barristers and Solicitors.
Thursday, March 23, 2006
School Rules, OK!
Yesterday, the House of Lords decided Begum v Denbigh High School [2006] UKHL 15 (22 March 2006), a case that has some bearing on how a provision commonly found in Bills of Rights is to be understood.
The relevant provision in New Zealand is s 5 of the Bill of Rights:
5. Justified limitations - Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
In Begum, the interpretation of article 9 of the ECHR was in issue, and it can be seen that art 9.2 corresponds to s 5 of NZBORA:
"Freedom of thought, conscience and religion
9.1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
9.2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society . . . for the protection of the rights and freedoms of others."
The difference in wording is immaterial, because neither s 5 nor art 9 seeks to establish a set of procedural steps that courts must apply in deciding whether limitations on rights are justified.
Lord Bingham, at para 31, emphasised that what matters is the practical outcome (ie whether a rule is an unjustified limitation of a right), not the quality of the decision making process that led to it (ie not, on the facts of this case, whether the school authorities reasoned correctly when they decided upon the rule).
Lord Hoffmann agreed, saying at para 68:
" … article 9 is concerned with substance, not procedure. It confers no right to have a decision made in any particular way. What matters is the result: was the right to manifest a religious belief restricted in a way which is not justified under article 9.2? The fact that the decision-maker is allowed an area of judgment in imposing requirements which may have the effect of restricting the right does not entitle a court to say that a justifiable and proportionate restriction should be struck down because the decision-maker did not approach the question in the structured way in which a judge might have done. Head teachers and governors cannot be expected to make such decisions with textbooks on human rights law at their elbows. The most that can be said is that the way in which the school approached the problem may help to persuade a judge that its answer fell within the area of judgment accorded to it by the law."
Begum suggests that a formalistic approach to the decision, about whether a right has been subject to unjustified limitation, is inappropriate, and that it is the practical outcome that matters. In Begum the school rule that proscribed the wearing of religious clothing was held, in the particular circumstances of this case (it is important to recognise that the Law Lords were not usurping Parliament’s power by seeking to rule on the validity of legislation that gave the power to make rules to the governing body of each school), not to be an unjustified limitation of the right to express religious belief. The school in question had carefully considered its rule about uniforms, in the context of the composition of its roll and the views of the community it served. Lord Bingham concluded, para 34:
"On the agreed facts, the school was in my opinion fully justified in acting as it did. It had taken immense pains to devise a uniform policy which respected Muslim beliefs but did so in an inclusive, unthreatening and uncompetitive way. The rules laid down were as far from being mindless as uniform rules could ever be. The school had enjoyed a period of harmony and success to which the uniform policy was thought to contribute. On further enquiry it still appeared that the rules were acceptable to mainstream Muslim opinion. It was feared that acceding to the respondent's request would or might have significant adverse repercussions. It would in my opinion be irresponsible of any court, lacking the experience, background and detailed knowledge of the head teacher, staff and governors, to overrule their judgment on a matter as sensitive as this. The power of decision has been given to them for the compelling reason that they are best placed to exercise it, and I see no reason to disturb their decision."
In Hansen, blogged here 19 September 2005, alternative interpretations of a section that has a limiting effect on the presumption of innocence are under consideration. The Begum approach would look at the practical outcome of each. One would require an accused to establish innocence on the balance of probabilities. This is a serious limitation on the presumption of innocence. In the absence of any evidence that Parliament deliberately intended (ie intended after deliberation) that that limitation should be imposed, the alternative interpretation, that the section requires the accused to raise a reasonable doubt about his guilt, should be preferred. In deciding whether Parliament intended the more limiting meaning, it must be relevant to note that when the section was recently re-enacted, there was no Report from the Attorney-General to the effect that the provision appears to be inconsistent with any of the provisions of NZBORA, as is required by s 7. In the absence of an express parliamentary intention to limit the presumption of innocence, the courts should not impose such a limitation through interpretation.
On this approach, s 5 works as a guide to Parliament when it considers legislating to limit rights. This point was made by the Chief Justice in argument during the Supreme Court hearing in Hansen v R. It also reminds courts engaged with provisions that may impinge on rights to look for indications of legislative intent to limit rights.
The relevant provision in New Zealand is s 5 of the Bill of Rights:
5. Justified limitations - Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
In Begum, the interpretation of article 9 of the ECHR was in issue, and it can be seen that art 9.2 corresponds to s 5 of NZBORA:
"Freedom of thought, conscience and religion
9.1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
9.2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society . . . for the protection of the rights and freedoms of others."
The difference in wording is immaterial, because neither s 5 nor art 9 seeks to establish a set of procedural steps that courts must apply in deciding whether limitations on rights are justified.
Lord Bingham, at para 31, emphasised that what matters is the practical outcome (ie whether a rule is an unjustified limitation of a right), not the quality of the decision making process that led to it (ie not, on the facts of this case, whether the school authorities reasoned correctly when they decided upon the rule).
Lord Hoffmann agreed, saying at para 68:
" … article 9 is concerned with substance, not procedure. It confers no right to have a decision made in any particular way. What matters is the result: was the right to manifest a religious belief restricted in a way which is not justified under article 9.2? The fact that the decision-maker is allowed an area of judgment in imposing requirements which may have the effect of restricting the right does not entitle a court to say that a justifiable and proportionate restriction should be struck down because the decision-maker did not approach the question in the structured way in which a judge might have done. Head teachers and governors cannot be expected to make such decisions with textbooks on human rights law at their elbows. The most that can be said is that the way in which the school approached the problem may help to persuade a judge that its answer fell within the area of judgment accorded to it by the law."
Begum suggests that a formalistic approach to the decision, about whether a right has been subject to unjustified limitation, is inappropriate, and that it is the practical outcome that matters. In Begum the school rule that proscribed the wearing of religious clothing was held, in the particular circumstances of this case (it is important to recognise that the Law Lords were not usurping Parliament’s power by seeking to rule on the validity of legislation that gave the power to make rules to the governing body of each school), not to be an unjustified limitation of the right to express religious belief. The school in question had carefully considered its rule about uniforms, in the context of the composition of its roll and the views of the community it served. Lord Bingham concluded, para 34:
"On the agreed facts, the school was in my opinion fully justified in acting as it did. It had taken immense pains to devise a uniform policy which respected Muslim beliefs but did so in an inclusive, unthreatening and uncompetitive way. The rules laid down were as far from being mindless as uniform rules could ever be. The school had enjoyed a period of harmony and success to which the uniform policy was thought to contribute. On further enquiry it still appeared that the rules were acceptable to mainstream Muslim opinion. It was feared that acceding to the respondent's request would or might have significant adverse repercussions. It would in my opinion be irresponsible of any court, lacking the experience, background and detailed knowledge of the head teacher, staff and governors, to overrule their judgment on a matter as sensitive as this. The power of decision has been given to them for the compelling reason that they are best placed to exercise it, and I see no reason to disturb their decision."
In Hansen, blogged here 19 September 2005, alternative interpretations of a section that has a limiting effect on the presumption of innocence are under consideration. The Begum approach would look at the practical outcome of each. One would require an accused to establish innocence on the balance of probabilities. This is a serious limitation on the presumption of innocence. In the absence of any evidence that Parliament deliberately intended (ie intended after deliberation) that that limitation should be imposed, the alternative interpretation, that the section requires the accused to raise a reasonable doubt about his guilt, should be preferred. In deciding whether Parliament intended the more limiting meaning, it must be relevant to note that when the section was recently re-enacted, there was no Report from the Attorney-General to the effect that the provision appears to be inconsistent with any of the provisions of NZBORA, as is required by s 7. In the absence of an express parliamentary intention to limit the presumption of innocence, the courts should not impose such a limitation through interpretation.
On this approach, s 5 works as a guide to Parliament when it considers legislating to limit rights. This point was made by the Chief Justice in argument during the Supreme Court hearing in Hansen v R. It also reminds courts engaged with provisions that may impinge on rights to look for indications of legislative intent to limit rights.
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