While we in New Zealand await our Supreme Court’s decision in Hansen v R, which will decide the standard of proof placed on the accused by reverse onus provisions in the light of human rights legislation, we note that the House of Lords now finds the reading down of reverse onus provisions a relatively routine matter: O v Crown Court at Harrow [2006] UKHL 42 (26 July 2006).
Here, the House of Lords was concerned with the meaning of "is satisfied" in a provision that required refusal of bail unless the court was satisfied that exceptional circumstances existed (s 25 of the Criminal Justice and Public Order Act 1994[UK]):
"(1) A person who in any proceedings has been charged with or convicted of an offence to which this section applies in circumstances to which it applies shall be granted bail in those proceedings only if the court or, as the case may be, the constable considering the grant of bail is satisfied that there are exceptional circumstances which justify it."
Two approaches to this were considered in the Court of Appeal. Kennedy LJ thought "satisfied" means "considers" and that the question is a matter of judgment for the court, not involving any particular standard of proof. Hooper J, on the other hand, thought that "satisfied" here puts the burden on the bail applicant, and is therefore inconsistent with the ECHR, so s 25 has to be "read down" to place only an evidentiary burden on the bail applicant.
Lords Nicholls and Hutton, and Lady Hale, agreed with Lord Brown; Lord Carswell did too, but examined the difference in interpretation in more detail. He referred, rather obliquely, to Re McClean (blogged here 7 July 2005) in which it was decided, inconsistemtly with the present case, that doubts must be resolved against the prisoner. He held that "satisfied" in s 25 means more than just an exercise of judgment, and that it connotes a burden or presumption, so s 25 has to be read down to comply with convention rights. Thus, Lord Carswell agreed with Hooper J’s approach.
Lord Brown, delivering the leading speech, had a "mild preference" for Hooper J’s approach (para 35). He pointed out that in most cases the decision will be clear cut and that the burden of proof will not assume any relevance. Occasionally, however, the court will be left unsure, and in these cases the default position should be that bail should be granted, and s 25 should be read down to make that plain.
Monday, July 31, 2006
Friday, July 28, 2006
Differences in principle and pragmatism
Appellate judges often disagree over whether an error at trial caused a substantial miscarriage of justice. Finding himself in a minority of one in Bounds v R [2006] HCA 39 (20 July 2006), Kirby J observed, para 85:
"Conclusion: a basic error: I accept that different conclusions are available on this issue. The nature of the controversy and the breadth of the language of the 'proviso' virtually assures the existence of differences of judicial views. Such differences may reflect the diverse values that judges accord to considerations of principle and pragmatism, as they regard them. Those differences appear in many cases in this Court concerned with the 'proviso' … [citing Green v The Queen (1971) 126 CLR 28 at 31; Jones v The Queen (1997) 191 CLR 439; Darkan v The Queen [2006] HCA 34]. They are also reflected in the foregoing differences of opinion in the United States Supreme Court [ie Lane v US 747 US 438 (1986)]."
It seems likely that, on the key point in Bounds, the majority were correct. A second count had been wrongly included in an indictment. The error was that the second offence was purely summary, not triable on indictment. Nevertheless, evidence of its commission would probably have been admissible as similar fact evidence in respect of the only count that should have been in the indictment. The majority (Gleeson CJ, Hayne, Callinan and Crennan JJ) at para 26 held
"… The evidence admitted at the appellant's trial about the downloading of the images the subject of count 2 was very limited. It would have been admissible on the trial of an indictment alleging only count 1."
Kirby J did not think this was so (para 100):
"Nor do I consider that the tender of such material would have been permitted in a trial if that trial had been limited to the indictable offence of possession of child pornography. A judge guarding the fairness of the conduct of such a trial would be properly careful to restrict extraneous, and possibly prejudicial, evidence. By impermissibly charging the two offences in the one indictment, an inter-mixture necessarily occurred. Descriptions or conceptions of the contents of the images became inevitable. It is that inter-mixture, before the jury, that presents the risk of a substantial miscarriage of justice. It is that risk that withholds the application of the 'proviso'."
Apart from the difference of opinion on that issue, Kirby J also differed from the majority on whether the jurisdictional error was, of itself, sufficient to prevent application of the proviso without examination of issues relating to the conduct of the trial. He reasoned (paras 87-88) that the Western Australia legislature had carefully separated the jurisdictions and that the community and the accused are therefore entitled to a trial that conforms to the law and is without jurisdictional flaw.
The majority, however, did focus on what happened at the trial of the count that was properly before the jury (para 13-30). Their conclusion on the trial conduct contrasts with that of Kirby J, who held, para 96:
"… The impermissible inclusion of the second count in the indictment deprived the appellant of a trial that was free from any reference to this extraneous factor [images of bestiality]. It deprived him of the chance of avoiding this added complication in his trial. Specifically, it deprived him of the forensic choices that the separate trial of the offences referred to in the two counts would have entailed."
It is not clear what those "forensic choices" were, even on the basis that the evidence was not (as Kirby J held) admissible as similar fact. Even the mere fact that these images (whatever they might have depicted) were downloaded at a particular time seems to have been relevant to whether the images which were the subject of count 1 were downloaded by the accused (see majority judgment, para 26).
This case is interesting for its references to other cases, including English and United States decisions, where differences of opinion have occurred over how to decide whether an error has caused a trial to be unfair. It is now 99 years since England enacted what has been almost universally adopted as the "proviso", and one would have thought that, by now, appellate judges would have worked out a rational approach to its application, thereby promoting uniformity of result and minimising disagreements. My own view is that the basic problem is that judges have not got to grips with the meaning of the essential requirement of a fair trial. Until judges learn to define the characteristics of trial fairness and to apply them rationally, vagueness over the meaning of "substantial miscarriage of justice" will continue to make the results of appeals difficult to predict.
If one were to apply my own "Fair Trial Analysis", one would identify the following issues in Bounds. Since a fair trial is one where the law is accurately applied to facts determined without bias, the first question is, what errors of law occurred? It was common ground that count 2 should not have been in the indictment. Was the admission of evidence relevant to that count an error? This requires examination of the admissibility of the evidence as similar fact in relation to count 1. The judges in Bounds did not undertake this inquiry in detail, they simply announced their conclusions, and, as noted, Kirby J dissented on this. If it is correct that the evidence was admissible as similar fact, then the question is whether the judge’s direction to the jury on that topic was adequate to ensure that the evidence was not misused. If the evidence was not admissible as similar fact, then the question is whether the jury were adequately warned to ignore it in relation to count 1. The jury direction was not revealed in the judgments in Bounds. Then, in relation to the unbiased determination of the facts, the appellate court should ask whether the similar fact evidence – even if it was admissible – could have, by reason of its content, prejudiced the rational assessment of the other evidence. This point is addressed in Bounds, but again it was a point of difference. Kirby J thought that it could have caused prejudice, simply because of the risk of an averse reaction by any juror to the mere mention of bestiality. The majority, however, considered that the mention of bestiality (the jury were not shown any images) was of peripheral concern and would not have caused illegitimate prejudice. At the heart of this difference of judicial opinion is the extent to which it should be acknowledged that jurors may not approach their task rationally. This was mentioned as recently as the 19th of this month by the House of Lords in R v Coutts (blogged 21 July 2006), where Lord Bingham (with whom the others agreed), citing a High Court of Australia case, Gilbert v R (2000), said at para 20 that the jury room may not be a place of undeviating intellectual and logical rigour. Coutts and Bounds are cases that complement each other: in Coutts the concern was failure to include an offence in the indictment, whereas in Bounds the concern was improper inclusion of a count. Should the court be less sensitive to the risk of jury prejudice in one than in the other?
"Conclusion: a basic error: I accept that different conclusions are available on this issue. The nature of the controversy and the breadth of the language of the 'proviso' virtually assures the existence of differences of judicial views. Such differences may reflect the diverse values that judges accord to considerations of principle and pragmatism, as they regard them. Those differences appear in many cases in this Court concerned with the 'proviso' … [citing Green v The Queen (1971) 126 CLR 28 at 31; Jones v The Queen (1997) 191 CLR 439; Darkan v The Queen [2006] HCA 34]. They are also reflected in the foregoing differences of opinion in the United States Supreme Court [ie Lane v US 747 US 438 (1986)]."
It seems likely that, on the key point in Bounds, the majority were correct. A second count had been wrongly included in an indictment. The error was that the second offence was purely summary, not triable on indictment. Nevertheless, evidence of its commission would probably have been admissible as similar fact evidence in respect of the only count that should have been in the indictment. The majority (Gleeson CJ, Hayne, Callinan and Crennan JJ) at para 26 held
"… The evidence admitted at the appellant's trial about the downloading of the images the subject of count 2 was very limited. It would have been admissible on the trial of an indictment alleging only count 1."
Kirby J did not think this was so (para 100):
"Nor do I consider that the tender of such material would have been permitted in a trial if that trial had been limited to the indictable offence of possession of child pornography. A judge guarding the fairness of the conduct of such a trial would be properly careful to restrict extraneous, and possibly prejudicial, evidence. By impermissibly charging the two offences in the one indictment, an inter-mixture necessarily occurred. Descriptions or conceptions of the contents of the images became inevitable. It is that inter-mixture, before the jury, that presents the risk of a substantial miscarriage of justice. It is that risk that withholds the application of the 'proviso'."
Apart from the difference of opinion on that issue, Kirby J also differed from the majority on whether the jurisdictional error was, of itself, sufficient to prevent application of the proviso without examination of issues relating to the conduct of the trial. He reasoned (paras 87-88) that the Western Australia legislature had carefully separated the jurisdictions and that the community and the accused are therefore entitled to a trial that conforms to the law and is without jurisdictional flaw.
The majority, however, did focus on what happened at the trial of the count that was properly before the jury (para 13-30). Their conclusion on the trial conduct contrasts with that of Kirby J, who held, para 96:
"… The impermissible inclusion of the second count in the indictment deprived the appellant of a trial that was free from any reference to this extraneous factor [images of bestiality]. It deprived him of the chance of avoiding this added complication in his trial. Specifically, it deprived him of the forensic choices that the separate trial of the offences referred to in the two counts would have entailed."
It is not clear what those "forensic choices" were, even on the basis that the evidence was not (as Kirby J held) admissible as similar fact. Even the mere fact that these images (whatever they might have depicted) were downloaded at a particular time seems to have been relevant to whether the images which were the subject of count 1 were downloaded by the accused (see majority judgment, para 26).
This case is interesting for its references to other cases, including English and United States decisions, where differences of opinion have occurred over how to decide whether an error has caused a trial to be unfair. It is now 99 years since England enacted what has been almost universally adopted as the "proviso", and one would have thought that, by now, appellate judges would have worked out a rational approach to its application, thereby promoting uniformity of result and minimising disagreements. My own view is that the basic problem is that judges have not got to grips with the meaning of the essential requirement of a fair trial. Until judges learn to define the characteristics of trial fairness and to apply them rationally, vagueness over the meaning of "substantial miscarriage of justice" will continue to make the results of appeals difficult to predict.
If one were to apply my own "Fair Trial Analysis", one would identify the following issues in Bounds. Since a fair trial is one where the law is accurately applied to facts determined without bias, the first question is, what errors of law occurred? It was common ground that count 2 should not have been in the indictment. Was the admission of evidence relevant to that count an error? This requires examination of the admissibility of the evidence as similar fact in relation to count 1. The judges in Bounds did not undertake this inquiry in detail, they simply announced their conclusions, and, as noted, Kirby J dissented on this. If it is correct that the evidence was admissible as similar fact, then the question is whether the judge’s direction to the jury on that topic was adequate to ensure that the evidence was not misused. If the evidence was not admissible as similar fact, then the question is whether the jury were adequately warned to ignore it in relation to count 1. The jury direction was not revealed in the judgments in Bounds. Then, in relation to the unbiased determination of the facts, the appellate court should ask whether the similar fact evidence – even if it was admissible – could have, by reason of its content, prejudiced the rational assessment of the other evidence. This point is addressed in Bounds, but again it was a point of difference. Kirby J thought that it could have caused prejudice, simply because of the risk of an averse reaction by any juror to the mere mention of bestiality. The majority, however, considered that the mention of bestiality (the jury were not shown any images) was of peripheral concern and would not have caused illegitimate prejudice. At the heart of this difference of judicial opinion is the extent to which it should be acknowledged that jurors may not approach their task rationally. This was mentioned as recently as the 19th of this month by the House of Lords in R v Coutts (blogged 21 July 2006), where Lord Bingham (with whom the others agreed), citing a High Court of Australia case, Gilbert v R (2000), said at para 20 that the jury room may not be a place of undeviating intellectual and logical rigour. Coutts and Bounds are cases that complement each other: in Coutts the concern was failure to include an offence in the indictment, whereas in Bounds the concern was improper inclusion of a count. Should the court be less sensitive to the risk of jury prejudice in one than in the other?
Friday, July 21, 2006
Fairer than you may want
The right to a fair trial is a right that the accused cannot waive.
This may seem a strange statement: why would the accused ever want to waive the right to a fair trial? Well, trial tactics are complicated things. If charged with one serious offence, the accused may prefer to hope for an outright acquittal on that rather than have the judge tell the jury that if they acquit on the serious charge they may then consider whether to convict on a lesser charge. A conviction on the lesser charge, and the consequence of imprisonment on that, may be something the accused would see as rendering his victory on the more serious charge Pyrrhic.
A fair trial is a trial conducted according to law. This means, as the House of Lords held this week in R v Coutts [2006] UKHL 39 (19 July 2006), that the jury must be fully informed about the alternatives available to it, whether either side want that or not. In Coutts, both sides agreed that the judge should not instruct the jury about the alternative of manslaughter, when the accused faced a solitary charge of murder. The Crown, confident that it would secure a conviction for murder, did not want the jury to instead convict for manslaughter, so, clothing its stance in the guise of a fairness objection, it argued that the accused was entitled to an acquittal if the jury had a doubt about the way the Crown had sought to prove its case for murder. The defence, having argued that the killing was accidental, did not want the risk of a conviction for manslaughter, because the sentence for that would, in the circumstances, be a lengthy term of imprisonment. Following the conviction for murder, the defence appealed, arguing that the judge should have directed the jury about manslaughter. The House of Lords upheld this argument and quashed the conviction, remitting the case so that a retrial could be considered.
Coutts establishes that fairness requires that the jury be fully informed about the law and the alternatives open for consideration in the particular case. Further, failure to inform the jury of the legal position amounts to a substantial miscarriage of justice. The appellate court does not enter into an inquiry about whether the jury only convicted the accused of the serious charge because it did not want him to walk free. To do that would be to engage in speculation. While a foundation of the system of trial by jury is the assumption that juries apply the directions on the law that judges give them (Lord Rodger, para 87), it is proper to recognise that the jury may be affected in its approach by the choices that it perceives as being available to it (an observation by Callinan J in the High Court of Australia case Gilbert v The Queen (2000) 201 CLR 414 para 101, quoted by Lord Bingham at para 20, Lord Hutton at 54, Lord Rodger at 88 and Lord Mance at 99).
Accordingly, the public interest in the administration of justice is best served if the judge leaves any obvious alternative offence to the jury irrespective of the wishes of counsel. Lord Bingham, with whom the other law lords agreed, put the requirement as follows (para 23):
"The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support. I would not extend the rule to summary proceedings since, for all their potential importance to individuals, they do not engage the public interest to the same degree. I would also confine the rule to alternative verdicts obviously raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial. Application of this rule may in some cases benefit the defendant, protecting him against an excessive conviction. In other cases it may benefit the public, by providing for the conviction of a lawbreaker who deserves punishment. A defendant may, quite reasonably from his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency.
"24. It is of course fundamental that the duty to leave lesser verdicts to the jury should not be exercised so as to infringe a defendant's right to a fair trial. This might be so if it were shown that decisions were made at trial which would not have been made had the possibility of such a verdict been envisaged. But no such infringement has ordinarily been found where there is evidence of provocation not relied on by the defence, nor will it ordinarily be unfair to leave an alternative where a defendant who, resisting conviction of a more serious offence, succeeds in throwing doubt on an ingredient of that offence and is as a result convicted of a lesser offence lacking that ingredient. There may be unfairness if the jury first learn of the alternative from the judge's summing-up, when counsel have not had the opportunity to address it in their closing speeches. But that risk is met if the proposed direction is indicated to counsel at some stage before they make their closing speeches. They can continue to discount the alternative in their closing speeches, but they can address the jury with knowledge of what the judge will direct. Had this course been followed in the present case there would have been no unfairness to the appellant, and while taking a contrary view the Court of Appeal did not identify the unfairness which it held would arise. It is not unfair to deprive a defendant, timeously alerted to the possibility, of what may be an adventitious acquittal."
This may seem a strange statement: why would the accused ever want to waive the right to a fair trial? Well, trial tactics are complicated things. If charged with one serious offence, the accused may prefer to hope for an outright acquittal on that rather than have the judge tell the jury that if they acquit on the serious charge they may then consider whether to convict on a lesser charge. A conviction on the lesser charge, and the consequence of imprisonment on that, may be something the accused would see as rendering his victory on the more serious charge Pyrrhic.
A fair trial is a trial conducted according to law. This means, as the House of Lords held this week in R v Coutts [2006] UKHL 39 (19 July 2006), that the jury must be fully informed about the alternatives available to it, whether either side want that or not. In Coutts, both sides agreed that the judge should not instruct the jury about the alternative of manslaughter, when the accused faced a solitary charge of murder. The Crown, confident that it would secure a conviction for murder, did not want the jury to instead convict for manslaughter, so, clothing its stance in the guise of a fairness objection, it argued that the accused was entitled to an acquittal if the jury had a doubt about the way the Crown had sought to prove its case for murder. The defence, having argued that the killing was accidental, did not want the risk of a conviction for manslaughter, because the sentence for that would, in the circumstances, be a lengthy term of imprisonment. Following the conviction for murder, the defence appealed, arguing that the judge should have directed the jury about manslaughter. The House of Lords upheld this argument and quashed the conviction, remitting the case so that a retrial could be considered.
Coutts establishes that fairness requires that the jury be fully informed about the law and the alternatives open for consideration in the particular case. Further, failure to inform the jury of the legal position amounts to a substantial miscarriage of justice. The appellate court does not enter into an inquiry about whether the jury only convicted the accused of the serious charge because it did not want him to walk free. To do that would be to engage in speculation. While a foundation of the system of trial by jury is the assumption that juries apply the directions on the law that judges give them (Lord Rodger, para 87), it is proper to recognise that the jury may be affected in its approach by the choices that it perceives as being available to it (an observation by Callinan J in the High Court of Australia case Gilbert v The Queen (2000) 201 CLR 414 para 101, quoted by Lord Bingham at para 20, Lord Hutton at 54, Lord Rodger at 88 and Lord Mance at 99).
Accordingly, the public interest in the administration of justice is best served if the judge leaves any obvious alternative offence to the jury irrespective of the wishes of counsel. Lord Bingham, with whom the other law lords agreed, put the requirement as follows (para 23):
"The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support. I would not extend the rule to summary proceedings since, for all their potential importance to individuals, they do not engage the public interest to the same degree. I would also confine the rule to alternative verdicts obviously raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial. Application of this rule may in some cases benefit the defendant, protecting him against an excessive conviction. In other cases it may benefit the public, by providing for the conviction of a lawbreaker who deserves punishment. A defendant may, quite reasonably from his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency.
"24. It is of course fundamental that the duty to leave lesser verdicts to the jury should not be exercised so as to infringe a defendant's right to a fair trial. This might be so if it were shown that decisions were made at trial which would not have been made had the possibility of such a verdict been envisaged. But no such infringement has ordinarily been found where there is evidence of provocation not relied on by the defence, nor will it ordinarily be unfair to leave an alternative where a defendant who, resisting conviction of a more serious offence, succeeds in throwing doubt on an ingredient of that offence and is as a result convicted of a lesser offence lacking that ingredient. There may be unfairness if the jury first learn of the alternative from the judge's summing-up, when counsel have not had the opportunity to address it in their closing speeches. But that risk is met if the proposed direction is indicated to counsel at some stage before they make their closing speeches. They can continue to discount the alternative in their closing speeches, but they can address the jury with knowledge of what the judge will direct. Had this course been followed in the present case there would have been no unfairness to the appellant, and while taking a contrary view the Court of Appeal did not identify the unfairness which it held would arise. It is not unfair to deprive a defendant, timeously alerted to the possibility, of what may be an adventitious acquittal."
Thursday, July 20, 2006
Public privacy
Courts may disagree over whether language is “grossly” offensive. In DPP v Collins [2006] UKHL 40 (19 July 2006) the House of Lords unanimously disagreed with two lower courts on this point. The defendant had left messages by telephone at his MP’s office, employing terms of racial abuse that were unquestionably offensive. The lower courts held that the messages did not cross the line between offensive and grossly offensive. The embarrassment of disagreeing with the lower courts was exacerbated because essentially the question whether the messages were “grossly” offensive was one of fact, to be determined by applying the standards of an open and just multi-racial society taking into account the context and all relevant circumstances (Lord Bingham, para 9) – standards which the lower courts should be particularly well placed to apply.
How had the lower courts gone wrong? Lord Bingham at para 13 concluded:
“Differing from the courts below with reluctance, but ultimately without hesitation, I conclude that the respondent's messages were grossly offensive and would be found by a reasonable person to be so.”
He agreed with Lord Carswell, who was a little more explicit about this (para 22):
“I felt quite considerable doubt during the argument of this appeal whether the House would be justified in reversing the decision of the magistrates' court that the reasonable person would not find the terms of the messages to be grossly offensive, bearing in mind that the principle to which I have referred, that a tribunal of fact must be left to exercise its judgment on such matters without undue interference. Two factors have, however, persuaded me that your Lordships would be right to reverse its decision. First, it appears that the justices may have placed some weight on the reaction of the actual listeners to the messages, rather than considering the reactions of reasonable members of society in general. Secondly, it was conceded by the respondent's counsel in the Divisional Court that a member of a relevant ethnic minority who heard the messages would have found them grossly offensive. If one accepts the correctness of that concession, as I believe one should, then one cannot easily escape the conclusion that the messages would be regarded as grossly offensive by reasonable persons in general, judged by the standards of an open and just multiracial society. The terms used were opprobrious and insulting, and not accidentally so. I am satisfied that reasonable citizens, not only members of the ethnic minorities referred to by the terms, would find them grossly offensive. "
The offence in question was held to require mens rea – an intention that the words be grossly offensive to those to whom they related, or an awareness that they may be taken to be so (Lord Bingham, para 11). But on the approach taken here, that state of mind need not be followed by actual offence taken by the recipient of the message. Indeed, it was held not to be necessary than anyone actually receive the message (para 8).
Consequently, the offence of sending a grossly offensive message could be committed without actually offending anyone. What makes it an offence is the fact that the social standards have been infringed. The offence is, on this interpretation, sending a message that would grossly offend a reasonable person if such a person became aware of it. That seems to be a bit of a stretch from the wording of the relevant legislation: s 127 of the Communications Act 2003[UK]:
“127. Improper use of public electronic communications network
(1) A person is guilty of an offence if he—
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.”
The justification for the imposition of community standards is the public nature of the communication network, which would be fine if everyone had ready access to everyone else’s communications. In reality, of course, the network is no more public than words exchanged in a conversation between two people on the street.
How had the lower courts gone wrong? Lord Bingham at para 13 concluded:
“Differing from the courts below with reluctance, but ultimately without hesitation, I conclude that the respondent's messages were grossly offensive and would be found by a reasonable person to be so.”
He agreed with Lord Carswell, who was a little more explicit about this (para 22):
“I felt quite considerable doubt during the argument of this appeal whether the House would be justified in reversing the decision of the magistrates' court that the reasonable person would not find the terms of the messages to be grossly offensive, bearing in mind that the principle to which I have referred, that a tribunal of fact must be left to exercise its judgment on such matters without undue interference. Two factors have, however, persuaded me that your Lordships would be right to reverse its decision. First, it appears that the justices may have placed some weight on the reaction of the actual listeners to the messages, rather than considering the reactions of reasonable members of society in general. Secondly, it was conceded by the respondent's counsel in the Divisional Court that a member of a relevant ethnic minority who heard the messages would have found them grossly offensive. If one accepts the correctness of that concession, as I believe one should, then one cannot easily escape the conclusion that the messages would be regarded as grossly offensive by reasonable persons in general, judged by the standards of an open and just multiracial society. The terms used were opprobrious and insulting, and not accidentally so. I am satisfied that reasonable citizens, not only members of the ethnic minorities referred to by the terms, would find them grossly offensive. "
The offence in question was held to require mens rea – an intention that the words be grossly offensive to those to whom they related, or an awareness that they may be taken to be so (Lord Bingham, para 11). But on the approach taken here, that state of mind need not be followed by actual offence taken by the recipient of the message. Indeed, it was held not to be necessary than anyone actually receive the message (para 8).
Consequently, the offence of sending a grossly offensive message could be committed without actually offending anyone. What makes it an offence is the fact that the social standards have been infringed. The offence is, on this interpretation, sending a message that would grossly offend a reasonable person if such a person became aware of it. That seems to be a bit of a stretch from the wording of the relevant legislation: s 127 of the Communications Act 2003[UK]:
“127. Improper use of public electronic communications network
(1) A person is guilty of an offence if he—
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.”
The justification for the imposition of community standards is the public nature of the communication network, which would be fine if everyone had ready access to everyone else’s communications. In reality, of course, the network is no more public than words exchanged in a conversation between two people on the street.
Friday, June 30, 2006
Our case against you is secret ...
No one could be surprised that included in the guarantees recognised as indispensable by civilised peoples are the right, when on trial, to be present, and to be privy to the prosecution evidence. In Hamdan v Rumsfeld, 548 US 557 (2006), 29 June 2006 the United States Supreme Court held that these rights applied to detainees that the Government proposed to prosecute in special military commissions.
Stevens J, joined by Souter, Ginsburg and Breyer JJ, wrote, in an important footnote (p 71, n67):
"The Government offers no defense of these procedures other than to observe that the defendant may not be barred from access to evidence if such action would deprive him of a "full and fair trial." Commission Order No. 1, ß6(D)(5)(b). But the Government suggests no circumstances in which it would be "fair" to convict the accused based on evidence he has not seen or heard. Cf. Crawford v. Washington, 541 U. S. 36, 49 (2004) (" ‘It is a rule of the common law, founded on natural justice, that no man shall be prejudiced by evidence which he had not the liberty to cross examine’ ") (quoting State v. Webb, 2 N. C. 103, 104(Super. L. & Eq. 1794) (per curiam)); Diaz v. United States, 223 U. S. 442, 455 (1912) (describing the right to be present as "scarcely less important to the accused than the right of trial itself"); Lewis v. United States, 146 U. S. 370, 372 (1892) (exclusion of defendant from part of proceedings is "contrary to the dictates of humanity" (internal quotation marks omitted)); Joint Anti-Fascist Refugee Comm. v. McGrath,341 U. S. 123, 170, n. 17, 171 (1951) (Frankfurter, J., concurring) ("[t]he plea that evidence of guilt must be secret is abhorrent to free men" (internal quotation marks omitted)). More fundamentally, the legality of a tribunal under Common Article 3 cannot be established by bare assurances that, whatever the character of the court or the procedures it follows, individual adjudicators will act fairly."
There is here an obvious relevance to the law concerning the use of special advocates. Such advocates are used, for example, in England and Wales in relation to some immigration matters: see the Special Immigration Commission Act 1997[UK], and Parts 3, 4 and 7 of the Special Immigration Appeals Commission (Procedure) Rules 2003 SI 2003/1034. These procedures have been described as "an unfortunate legacy from someone who rode roughshod over liberties in this country in a breathtaking manner" (per Dominic Grieve, Conservative Member for Beaconsfield, Commons Hansard, 23 February 2005).
A special advocate procedure is planned in New Zealand in relation to whether a person is a risk to the security of the nation for the purposes of certification by the SIS and consequent expulsion.
Stevens J, joined by Souter, Ginsburg and Breyer JJ, wrote, in an important footnote (p 71, n67):
"The Government offers no defense of these procedures other than to observe that the defendant may not be barred from access to evidence if such action would deprive him of a "full and fair trial." Commission Order No. 1, ß6(D)(5)(b). But the Government suggests no circumstances in which it would be "fair" to convict the accused based on evidence he has not seen or heard. Cf. Crawford v. Washington, 541 U. S. 36, 49 (2004) (" ‘It is a rule of the common law, founded on natural justice, that no man shall be prejudiced by evidence which he had not the liberty to cross examine’ ") (quoting State v. Webb, 2 N. C. 103, 104(Super. L. & Eq. 1794) (per curiam)); Diaz v. United States, 223 U. S. 442, 455 (1912) (describing the right to be present as "scarcely less important to the accused than the right of trial itself"); Lewis v. United States, 146 U. S. 370, 372 (1892) (exclusion of defendant from part of proceedings is "contrary to the dictates of humanity" (internal quotation marks omitted)); Joint Anti-Fascist Refugee Comm. v. McGrath,341 U. S. 123, 170, n. 17, 171 (1951) (Frankfurter, J., concurring) ("[t]he plea that evidence of guilt must be secret is abhorrent to free men" (internal quotation marks omitted)). More fundamentally, the legality of a tribunal under Common Article 3 cannot be established by bare assurances that, whatever the character of the court or the procedures it follows, individual adjudicators will act fairly."
There is here an obvious relevance to the law concerning the use of special advocates. Such advocates are used, for example, in England and Wales in relation to some immigration matters: see the Special Immigration Commission Act 1997[UK], and Parts 3, 4 and 7 of the Special Immigration Appeals Commission (Procedure) Rules 2003 SI 2003/1034. These procedures have been described as "an unfortunate legacy from someone who rode roughshod over liberties in this country in a breathtaking manner" (per Dominic Grieve, Conservative Member for Beaconsfield, Commons Hansard, 23 February 2005).
A special advocate procedure is planned in New Zealand in relation to whether a person is a risk to the security of the nation for the purposes of certification by the SIS and consequent expulsion.
Wednesday, June 28, 2006
The Ellis case and trial fairness
For a draft paper on the trial of Peter Ellis for sexual offending at the Christchurch Civic Creche, see my web site, and follow the links to more about me, and articles available on this site.
Thursday, June 15, 2006
A look at torts ...
During this strangely extended lacuna between interesting criminal cases around the world, we have a moment to glance at yesterday’s decision of the House of Lords in Jones v Saudi Arabia [2006] UKHL 26 (14 June 2006).
This case concerns the civil jurisdiction of domestic courts to adjudicate on claims in tort for damages for torture inflicted in another country by officials of that foreign country. In contrast to the universal criminal jurisdiction provided for by the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (the "Torture Convention"), there is no corresponding universal civil jurisdiction. The claimants in Jones sought to establish that the State Immunity Act 1978[UK] should be interpreted, contrary to its ordinary and natural meaning, so as to permit refusal of immunity in respect of torture claims, because such an interpretation was required by s 3 of the Human Rights Act 1998[UK] to give effect to the Art 6 of the ECHR right of access to courts.
That claim and argument was rejected unanimously. State immunity is a procedural matter determining jurisdiction, and does not have substantive content. There is no international consensus recognising universal civil jurisdiction, and there is no such exception in the UN Immunity Convention 2004. And, there is no evidence that States have recognised an international law obligation to exercise universal jurisdiction over alleged breaches of peremptory norms of international law. Therefore, the (assumed) restriction on access to the domestic courts was directed at a legitimate objective and was not disproportionate, and the interpretation sought by the claimants could not prevail.
See also, blog entry for 17 March 2006.
This case concerns the civil jurisdiction of domestic courts to adjudicate on claims in tort for damages for torture inflicted in another country by officials of that foreign country. In contrast to the universal criminal jurisdiction provided for by the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (the "Torture Convention"), there is no corresponding universal civil jurisdiction. The claimants in Jones sought to establish that the State Immunity Act 1978[UK] should be interpreted, contrary to its ordinary and natural meaning, so as to permit refusal of immunity in respect of torture claims, because such an interpretation was required by s 3 of the Human Rights Act 1998[UK] to give effect to the Art 6 of the ECHR right of access to courts.
That claim and argument was rejected unanimously. State immunity is a procedural matter determining jurisdiction, and does not have substantive content. There is no international consensus recognising universal civil jurisdiction, and there is no such exception in the UN Immunity Convention 2004. And, there is no evidence that States have recognised an international law obligation to exercise universal jurisdiction over alleged breaches of peremptory norms of international law. Therefore, the (assumed) restriction on access to the domestic courts was directed at a legitimate objective and was not disproportionate, and the interpretation sought by the claimants could not prevail.
See also, blog entry for 17 March 2006.
Thursday, May 04, 2006
Inchoate offences and the scope of mens rea
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.
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.
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.
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