Offences of disorderly behaviour, involving the simplest of facts, can provide the basis for interminable disputation among jurists. This affords students an introduction to the role of law, the need for certainty and the problem of definition of crime, the proper scope of judicial discretion, the nature of judgment, and the complicating influence of competing rights on the definition of the offence.
Also, such apparently simple cases can be occasions for judicial disagreement as they proceed up the court hierarchy. A dogged appellant can eventually succeed, as happened today in Brooker v R [2007] NZSC 30 (4 May 2007). In this case, the successful appellant represented himself before the Supreme Court, thereby illustrating what many may suspect: it’s the issues, not the lawyers, that matter.
The judges took 288 paragraphs to deliver their separate judgments, and the case was decided by a bare majority of 3 to 2. As Thomas J, one of the dissenters, pointed out (para 150), in all, 10 judges had considered the case, 7 of them were in favour of convicting, and only the 3 majority judges at this final appeal stage effected the quashing of the conviction. That, of course, is an illegal count, comparing – if one might carefully choose one’s fruit – apples with oranges.
For our purposes, the result of the case doesn’t matter. We are more interested in how judges differ in their approaches to deciding how the actus reus of the offence is affected by the existence of competing rights.
I should point out that vagueness in the definition of an offence is not unusual. Most offences can be attempted, and the attempt is a separate offence. To be guilty of an attempt, one must perform an act that is sufficiently proximate to the commission of the full offence to constitute an actus reus of an attempt. Proximity is vague, and fact-dependent. Nevertheless, the courts have worked out various ways of asking whether particular circumstances disclose sufficient proximity. Those cases, certainly not always free of controversy, do not involve the added complication of conflicting rights.
In Brooker, the complication of competing rights was approached in two different ways. In the first, one right was seen as a limitation on the other. The complainant’s right to privacy was seen as a limitation on the accused’s right to freedom of expression, and the question was whether this limitation was justified. If it was, the defendant was guilty. This approach is evident in the majority judgments of Blanchard J (para 69), Tipping J (91).
The second way of dealing with the complication of competing rights does not involve justifying the limitation to the defendant’s right to freedom of expression. Instead, the competing rights are put against each other: the right to freedom of expression as against the right to privacy, and the question is which the balance favours. The dissenters, McGrath and Thomas JJ take this approach (paras 136, 231 respectively).
The other judge, Elias CJ, held that the lower courts had applied the wrong test for what disorderly behaviour means, failing to require a serious disruption to public order, and allowed the appeal because of that error. She added that the defendant could not have been convicted on the correct approach.
The two approaches, summarised above, to dealing with the complication of competing rights in the context of a vaguely defined offence, deserve some reflection. They reveal a difference in the idea of the role of rights in society. For Tipping J, the question was what a reasonable citizen should be expected to bear (para 91): how much disorderly behaviour should a reasonable citizen be expected to bear in the interests of upholding the defendant’s right to freedom of expression? The focus is on the impact on the defendant’s right, because the question is basically what is the proper scope of the criminal law? This may seem a little odd, since it is the defendant who is initiating the conflict. One might have thought that the question should be put as, what limitation on his right to freedom of expression should the defendant be expected to bear (by incurring criminal liability), in the interests of upholding the complainant’s right to privacy?
In contrast to rights limitation, the other approach, elaborated carefully by Thomas J, involves rights balancing. Pragmatists will appreciate his reference to the test of the “reasonable person” (para 199), echoing that introduced by the famous pragmatist Oliver Wendell Holmes Jr. Thomas’s pragmatism has been noted in these blogs before. Some, too, will appreciate his reference to Barak’s “The Judge in a Democracy” (para 177).
Central to this pragmatist view of rights are the ideas that everyone is entitled to be treated with equal concern and respect (para 171), and that the right to dignity is central to all human rights. Primacy is not accorded, as a starting point, to the rights of the defendant when they are in opposition to the rights of another citizen; this playing field is level (232). It is doubtful that, at this point, Thomas J was intending to suggest that all rights will have equal weight in a balancing exercise.
Theory is one thing, putting it into practice another. We do not have to agree with Thomas J’s conclusion on the facts of the case. It is difficult to form a view of these, because each judge, in reporting the facts of the case, puts them in a light which tends to support his or her conclusion. Such is the way of humans.
Questions remain about which of the two approaches, rights limitation or rights balancing, is appropriate to the decision whether behaviour constitutes an actus reus. The four judges who considered this split 2-2. The balancing approach is familiar in the context of determining the admissibility of evidence obtained improperly, where the public policy discretion arises from the need to prevent abuse of process and the related need to avoid bringing the administration of justice into disrepute. The definition of offences, however, has traditionally been based on utilitarian grounds, whereby, as JS Mill put it, the state is justified in restraining the freedom of those within its jurisdiction only to the extent that such restraint is necessary to prevent harm.
Friday, May 04, 2007
Thursday, April 26, 2007
Multiple intents
When does an agreement to do one specific unlawful thing extend to encompass the doing of another unlawful thing? And when does a lawful purpose prevent liability for an unlawful purpose?
Two people might, for example, agree to stop traffic in order to prevent an accident at the scene of a breakdown. They have two intentions: to stop traffic, and to prevent an accident. Do these two intentions exist without qualifying each other, so that the legal consequences of one are unaffected by the existence of the other?
In DPP v Hurnam (Mauritius) [2007] UKPC 24 (25 April 2007) there is a reminder of these sorts of questions, although the case itself is a straightforward one. A criminal lawyer (the respondent) had been convicted of conspiring to hinder police by fabricating an alibi for a client, Bholah, in order to mislead the police in their investigation of a robbery. The Supreme Court of Mauritius had allowed his appeal against conviction on the basis that the prosecution had to prove an intention to hinder the police, as distinct from an intention to fabricate an alibi. The Privy Council restored the conviction.
“[20] …The Supreme Court was in their Lordships' view wrong to have regard only to the ultimate object or intention of the parties. A conspiracy may have several objects (cf the discussion in Williams, Criminal Law, The General Part, para 217) and one of the objects may constitute a means of achieving the ultimate object. As Webster J said in Lewis v Cox [1985] QB 509, 517 in the context of obstructing a police constable in the execution of his duty:
“" … a court is not obliged … to assume that a defendant has only one intention and to find what that intention was, or even to assume that, if he has two intentions, it must find the predominant intention. If, for instance, a person runs into the road and holds up the traffic in order to prevent an accident, he clearly has two intentions: one is to hold up the traffic, and the other (which is the motive of that intention) is to prevent an accident. But motive is irrelevant to intention in the criminal law …"
“In this case the parties intended to assist Bholah to escape criminal liability, and they did so by means of fabricating an alibi, which would have the foreseeable and intended result of diverting the police from investigating his actions, so hindering their enquiry into the commission of the robbery. The immediate intention of their agreed course of conduct was to hinder the police in the accomplishment of their ultimate aim of exculpating Bholah. That in their Lordships' view was an agreement to hinder the police, sufficient to constitute the conspiracy with which the appellant was charged. The fact that the respondent and Bholah had an ultimate aim of exculpating the latter does not invalidate that conclusion.”
The Board mentioned (para 23) a couple of general points, the approach to findings of fact in lower courts, and the need to demonstrate a clear departure from the requirements of justice when appeals are as of right, as is the case in Mauritius. The Board declined to interfere with the sentence of 6 months’ imprisonment, holding that the delay (from 2000) had been occupied largely by the trial and the appeals process, and observing that the importance of maintaining the high standards of conduct at the criminal bar supported the sentence.
This case, while not deciding any new point of law, serves as a reminder that the concept of agreement, as an element of conspiracy, can include more than one objective.
Two people might, for example, agree to stop traffic in order to prevent an accident at the scene of a breakdown. They have two intentions: to stop traffic, and to prevent an accident. Do these two intentions exist without qualifying each other, so that the legal consequences of one are unaffected by the existence of the other?
In DPP v Hurnam (Mauritius) [2007] UKPC 24 (25 April 2007) there is a reminder of these sorts of questions, although the case itself is a straightforward one. A criminal lawyer (the respondent) had been convicted of conspiring to hinder police by fabricating an alibi for a client, Bholah, in order to mislead the police in their investigation of a robbery. The Supreme Court of Mauritius had allowed his appeal against conviction on the basis that the prosecution had to prove an intention to hinder the police, as distinct from an intention to fabricate an alibi. The Privy Council restored the conviction.
“[20] …The Supreme Court was in their Lordships' view wrong to have regard only to the ultimate object or intention of the parties. A conspiracy may have several objects (cf the discussion in Williams, Criminal Law, The General Part, para 217) and one of the objects may constitute a means of achieving the ultimate object. As Webster J said in Lewis v Cox [1985] QB 509, 517 in the context of obstructing a police constable in the execution of his duty:
“" … a court is not obliged … to assume that a defendant has only one intention and to find what that intention was, or even to assume that, if he has two intentions, it must find the predominant intention. If, for instance, a person runs into the road and holds up the traffic in order to prevent an accident, he clearly has two intentions: one is to hold up the traffic, and the other (which is the motive of that intention) is to prevent an accident. But motive is irrelevant to intention in the criminal law …"
“In this case the parties intended to assist Bholah to escape criminal liability, and they did so by means of fabricating an alibi, which would have the foreseeable and intended result of diverting the police from investigating his actions, so hindering their enquiry into the commission of the robbery. The immediate intention of their agreed course of conduct was to hinder the police in the accomplishment of their ultimate aim of exculpating Bholah. That in their Lordships' view was an agreement to hinder the police, sufficient to constitute the conspiracy with which the appellant was charged. The fact that the respondent and Bholah had an ultimate aim of exculpating the latter does not invalidate that conclusion.”
The Board mentioned (para 23) a couple of general points, the approach to findings of fact in lower courts, and the need to demonstrate a clear departure from the requirements of justice when appeals are as of right, as is the case in Mauritius. The Board declined to interfere with the sentence of 6 months’ imprisonment, holding that the delay (from 2000) had been occupied largely by the trial and the appeals process, and observing that the importance of maintaining the high standards of conduct at the criminal bar supported the sentence.
This case, while not deciding any new point of law, serves as a reminder that the concept of agreement, as an element of conspiracy, can include more than one objective.
Friday, April 06, 2007
Judging the gatekeeper
In Wizzard v R (Jamaica) [2007] UKPC 21 (29 March 2007) the Privy Council was reminded of the decision of the House of Lords in R v Mushtaq [2005] UKHL 25, [2005] 1 WLR 1513 (blogged 22 April 2005). Although the facts of the present appeal did not require Mushtaq to be applied, some observations on it were made by the Board.
Because it is based on the ancient ("from the time of Lord Hale") common law principle against self-incrimination, Mushtaq was held to apply in Jamaica (and this implies, of course, that it extends to any other common law country unless there is legislation to the contrary effect), and to apply retrospectively to cases heard before Mushtaq was decided.
Mushtaq held that a jury must be directed, where the matter is in issue, that if they are not satisfied that a statement was made by the accused in the absence of oppression, they must ignore it.
Prior to Mushtaq, the Judicial Studies Board in England had approved a direction which, once the judge had decided the oppression point against the accused and ruled the statement admissible, the jury could give it what weight they wished, even if they thought it could have been made as a result of oppression. Thus, Mushtaq made an important correction to the way the law had developed.
Technically, what the jury is doing under the Mushtaq direction, is not deciding the admissibility question (which is a matter the judge had decided), but instead is deciding that, because of the possibility of oppression, the statement should be given no weight and it should be ignored. That, of course, is a highly technical distinction, but it has importance in preventing erosion of the standard that the judge must apply to the question of whether there was oppression.
It would be wrong for a judge to think that, because the jury can decide to ignore the statement, it may as well be ruled admissible even where there is a real risk that it had been obtained by oppression. The challenge for those involved with making judges apply the law with integrity is to ensure that this sort of error does not occur.
Because it is based on the ancient ("from the time of Lord Hale") common law principle against self-incrimination, Mushtaq was held to apply in Jamaica (and this implies, of course, that it extends to any other common law country unless there is legislation to the contrary effect), and to apply retrospectively to cases heard before Mushtaq was decided.
Mushtaq held that a jury must be directed, where the matter is in issue, that if they are not satisfied that a statement was made by the accused in the absence of oppression, they must ignore it.
Prior to Mushtaq, the Judicial Studies Board in England had approved a direction which, once the judge had decided the oppression point against the accused and ruled the statement admissible, the jury could give it what weight they wished, even if they thought it could have been made as a result of oppression. Thus, Mushtaq made an important correction to the way the law had developed.
Technically, what the jury is doing under the Mushtaq direction, is not deciding the admissibility question (which is a matter the judge had decided), but instead is deciding that, because of the possibility of oppression, the statement should be given no weight and it should be ignored. That, of course, is a highly technical distinction, but it has importance in preventing erosion of the standard that the judge must apply to the question of whether there was oppression.
It would be wrong for a judge to think that, because the jury can decide to ignore the statement, it may as well be ruled admissible even where there is a real risk that it had been obtained by oppression. The challenge for those involved with making judges apply the law with integrity is to ensure that this sort of error does not occur.
Friday, March 23, 2007
Inferences
An area of the law of evidence that has long been a subject of discussion and confusion is the drawing of inferences. In R v Hillier [2007] HCA 13 (22 March 2007) the High Court of Australia corrected an error of reasoning by an appellate court on this topic.
The accused had been convicted of murdering his estranged wife, his motive being alleged to be to obtain custody of their children. There was only circumstantial evidence of his guilt. The Court of Appeal (ACT) had quashed the conviction, holding ([2005] ACTCA 48 at [105]):
"other aspects of the evidence, such as that relating to the unusual features of the injuries she suffered and the apparent use of the handcuffs … [made] it difficult to reconstruct what actually occurred on the night in question and the evidence suggesting that another person may have been present at the time of her death".
The Court of Appeal found that this made it impossible to conclude, beyond reasonable doubt, that the accused was guilty.
As the High Court pointed out, it is wrong to isolate pieces of evidence and use them to support an inference inconsistent with guilt. Gummow, Hayne and Crennan JJ, jointly, with Gleeson CJ concurring, and Callinan J agreeing in allowing the Crown’s appeal (but who would have ordered a retrial, rather than, as the others did, remit the case to the Court of Appeal for reconsideration), held at para 46:
“The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances [footnote: See, for example, Martin v Osborne (1936) 55 CLR 367 at 375; Plomp v The Queen (1963) 110 CLR 234 at 243 per Dixon CJ.]. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence [footnote: Shepherd v The Queen (1990) 170 CLR 573 at 579 per Dawson J].”
So, because there were circumstances consistent with innocence, the question was whether, in the context of all the evidence in the case there was a reasonable doubt.
This is a slightly different matter from another circumstantial evidence problem that causes much debate: to what standard must circumstantially-proved facts be established before they can be used to support an inference of guilt? In some cases, where the reasoning progresses along a logical path, each step depending on the one before, the answer is clearly that each link in the chain of reasoning must be proved beyond reasonable doubt. But even here, this is not to say that, where more than one item of evidence is needed to constitute proof of the fact relied on for each step, each must be proved beyond reasonable doubt. That is because, where something is proved by circumstantial evidence, the circumstances must be seen in combination, not in isolation. In isolation, they might be doubtful, but the question is whether, in combination, they must be true and, in the case of reasoning in logical steps, each necessary step in the reasoning is established.
It is only the elements of an offence that need to be proved beyond reasonable doubt; other facts need not be.
It is unlikely that there is a difference between the laws of Australia and New Zealand in this regard, although the matter has not always been clear. The High Court of Australia, in the present case at para 48, quoted with approval an earlier decision (the famous “the dingo’s got my baby!” case R v Chamberlain (No 2) (1984) 153 CLR 521 at 535) in which R v Thomas [1972] NZLR 34 at 37-38, 40 was cited. Thomas was a notorious case in New Zealand, the convicted accused ultimately being pardoned. Thomas has also been cited with approval in Canada: R v Morin (1988) 44 CCC (3d) 193.
However, the standard of proof of facts which form the basis for inferences of elements of the offence, may not be universally agreed. The position in Australia was recently summarised by Kirby J, in a case not cited in Hillier: De Gruchy v R (2002) 211 CLR 85 (HCA), at para 47:
“In Australia, but not in England [footnote: Hodge's Case (1838) 2 Lewin 227 [168 ER 1136] per Alderson B; McGreevy v Director of Public Prosecutions [1973] 1 WLR 276; [1973] 1 All ER 503. Samuels, "Circumstantial Evidence", (1986) 150 Justice of the Peace 89] and some other countries, [footnote: As to New Zealand, see R v Hedge [1956] NZLR 511; R v Hart [1986] 2 NZLR 408 at 413; cf Police v Pereira [1977] 1 NZLR 547. As to the position in Canada see R v Cooper [1978] 1 SCR 860 and in the United States see Holland v United States 348 US 121 (1954)] a rather strict approach is taken to the instruction that must be given about circumstantial evidence. The jury must be warned that the primary facts, from which an inference of guilt is to be drawn, must themselves be proved beyond reasonable doubt. The inference of guilt must be the only inference that is reasonably open on all the primary facts which the jury find to be established to the requisite standard of proof. [footnote: Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 599 per Brennan J; cf R v Van Beelen (1973) 4 SASR 353 at 379-380. See also Peacock v The King (1911) 13 CLR 619 at 634; Glass, "The Insufficiency of Evidence to Raise a Case to Answer", (1981) 55 Australian Law Journal 842 at 852-853.”]"
This is not to say that these primary facts must individually prove guilt beyond reasonable doubt.
Interestingly, in Chamberlain (No 2), and in Thomas, the courts were ultimately shown to have been wrong to uphold convictions, because of errors in the evidence upon which inferences of guilt were based. In Chamberlain (No 2) the red splashes in the car were not, it was later discovered, blood; in Thomas the police were later found to have planted evidence in order to connect the accused with the murder. Perhaps, in now being more rigorous in its requirements concerning the factual basis for inferences, Australia has learnt a lesson that New Zealand still has not.
The accused had been convicted of murdering his estranged wife, his motive being alleged to be to obtain custody of their children. There was only circumstantial evidence of his guilt. The Court of Appeal (ACT) had quashed the conviction, holding ([2005] ACTCA 48 at [105]):
"other aspects of the evidence, such as that relating to the unusual features of the injuries she suffered and the apparent use of the handcuffs … [made] it difficult to reconstruct what actually occurred on the night in question and the evidence suggesting that another person may have been present at the time of her death".
The Court of Appeal found that this made it impossible to conclude, beyond reasonable doubt, that the accused was guilty.
As the High Court pointed out, it is wrong to isolate pieces of evidence and use them to support an inference inconsistent with guilt. Gummow, Hayne and Crennan JJ, jointly, with Gleeson CJ concurring, and Callinan J agreeing in allowing the Crown’s appeal (but who would have ordered a retrial, rather than, as the others did, remit the case to the Court of Appeal for reconsideration), held at para 46:
“The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances [footnote: See, for example, Martin v Osborne (1936) 55 CLR 367 at 375; Plomp v The Queen (1963) 110 CLR 234 at 243 per Dixon CJ.]. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence [footnote: Shepherd v The Queen (1990) 170 CLR 573 at 579 per Dawson J].”
So, because there were circumstances consistent with innocence, the question was whether, in the context of all the evidence in the case there was a reasonable doubt.
This is a slightly different matter from another circumstantial evidence problem that causes much debate: to what standard must circumstantially-proved facts be established before they can be used to support an inference of guilt? In some cases, where the reasoning progresses along a logical path, each step depending on the one before, the answer is clearly that each link in the chain of reasoning must be proved beyond reasonable doubt. But even here, this is not to say that, where more than one item of evidence is needed to constitute proof of the fact relied on for each step, each must be proved beyond reasonable doubt. That is because, where something is proved by circumstantial evidence, the circumstances must be seen in combination, not in isolation. In isolation, they might be doubtful, but the question is whether, in combination, they must be true and, in the case of reasoning in logical steps, each necessary step in the reasoning is established.
It is only the elements of an offence that need to be proved beyond reasonable doubt; other facts need not be.
It is unlikely that there is a difference between the laws of Australia and New Zealand in this regard, although the matter has not always been clear. The High Court of Australia, in the present case at para 48, quoted with approval an earlier decision (the famous “the dingo’s got my baby!” case R v Chamberlain (No 2) (1984) 153 CLR 521 at 535) in which R v Thomas [1972] NZLR 34 at 37-38, 40 was cited. Thomas was a notorious case in New Zealand, the convicted accused ultimately being pardoned. Thomas has also been cited with approval in Canada: R v Morin (1988) 44 CCC (3d) 193.
However, the standard of proof of facts which form the basis for inferences of elements of the offence, may not be universally agreed. The position in Australia was recently summarised by Kirby J, in a case not cited in Hillier: De Gruchy v R (2002) 211 CLR 85 (HCA), at para 47:
“In Australia, but not in England [footnote: Hodge's Case (1838) 2 Lewin 227 [168 ER 1136] per Alderson B; McGreevy v Director of Public Prosecutions [1973] 1 WLR 276; [1973] 1 All ER 503. Samuels, "Circumstantial Evidence", (1986) 150 Justice of the Peace 89] and some other countries, [footnote: As to New Zealand, see R v Hedge [1956] NZLR 511; R v Hart [1986] 2 NZLR 408 at 413; cf Police v Pereira [1977] 1 NZLR 547. As to the position in Canada see R v Cooper [1978] 1 SCR 860 and in the United States see Holland v United States 348 US 121 (1954)] a rather strict approach is taken to the instruction that must be given about circumstantial evidence. The jury must be warned that the primary facts, from which an inference of guilt is to be drawn, must themselves be proved beyond reasonable doubt. The inference of guilt must be the only inference that is reasonably open on all the primary facts which the jury find to be established to the requisite standard of proof. [footnote: Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 599 per Brennan J; cf R v Van Beelen (1973) 4 SASR 353 at 379-380. See also Peacock v The King (1911) 13 CLR 619 at 634; Glass, "The Insufficiency of Evidence to Raise a Case to Answer", (1981) 55 Australian Law Journal 842 at 852-853.”]"
This is not to say that these primary facts must individually prove guilt beyond reasonable doubt.
Interestingly, in Chamberlain (No 2), and in Thomas, the courts were ultimately shown to have been wrong to uphold convictions, because of errors in the evidence upon which inferences of guilt were based. In Chamberlain (No 2) the red splashes in the car were not, it was later discovered, blood; in Thomas the police were later found to have planted evidence in order to connect the accused with the murder. Perhaps, in now being more rigorous in its requirements concerning the factual basis for inferences, Australia has learnt a lesson that New Zealand still has not.
Thursday, March 22, 2007
The third way
For an interesting study in how the most senior judges can differ over problems in criminal law, one need go no further than yesterday’s decision by the High Court of Australia in R v Taufahema [2007] HCA 11 (21 March 2007).
Here, a policeman had been shot dead by a man who got out of a car, of which the respondent, in this Crown appeal, was the driver. There were four occupants in this car, all on parole, all carrying guns, and with them in the car were 2 pairs of gloves and a hockey mask. The car had been, briefly – for up to 20 seconds – chased by the officer in a patrol car, until it came to a halt in an accidental collision. That was when the murderer, Mr P, got out with his gun and killed the victim.
The prosecution’s case had been advanced in two ways at trial. Initially, it was alleged that the men in the car had agreed among themselves to use guns to prevent their being apprehended. By the end of the evidence in the trial, the prosecutor, after a lengthy discussion with the judge, decided to put the case to the jury on the basis that the common agreement between the men was simply to assist each other to avoid apprehension. The advantage this gave the prosecution was that it was unnecessary for the jury to decide that the use of a gun was part of this common agreement. The respondent, Mr T, was convicted of murder as a secondary party, and that must have been because the jury was satisfied that he had foreseen the possibility that, in avoiding arrest, one of the others would use a gun.
Mr T appealed against his conviction to the CCA NSW, on the basis that before he could be liable in this way, a common intent to commit a crime would have to be proved, and here, escaping apprehension was not a crime. Since there was no “foundational” crime, the CCA quashed his conviction and entered an acquittal. The Crown applied, in this present case, to the High Court of Australia for leave to appeal this decision, and for an order for a new trial.
The High Court held, by a majority of 4 to 3, that there should be a new trial. The dissenters were, jointly, Gleeson CJ and Callinan J, and in a separate judgment, Kirby J. The majority (Gummow, Hayne, Heydon and Crennan JJ) delivered a joint judgment.
The Crown’s application was to advance the case on the basis that the men in the car had planned to commit robbery, and this killing was a foreseeable consequence of the pursuit of that common purpose. This way of inviting a conviction had not been offered before in the proceedings.
The main issues were:
The case illustrates how important matters of policy can arise from relatively straightforward facts. So many policy issues arose here that any decision could have been justified, which explains the 4 - 3 division between the High Court justices.
The problem with the case at the trial was that the prosecution became conscious of the weakness of the available inference of agreement to use a gun to prevent apprehension, which was the original basis on which it put its case. Instead of accepting almost inevitable defeat, the prosecution changed its stance. It would have been possible to allege, at the outset, liability in the third way - that identified on appeal, involving an allegation of an agreement to commit robbery. Had that been done, the defence would have been fully informed of its jeopardy before the trial.
Sometimes, however, mistakes just can't be allowed to happen.
Here, a policeman had been shot dead by a man who got out of a car, of which the respondent, in this Crown appeal, was the driver. There were four occupants in this car, all on parole, all carrying guns, and with them in the car were 2 pairs of gloves and a hockey mask. The car had been, briefly – for up to 20 seconds – chased by the officer in a patrol car, until it came to a halt in an accidental collision. That was when the murderer, Mr P, got out with his gun and killed the victim.
The prosecution’s case had been advanced in two ways at trial. Initially, it was alleged that the men in the car had agreed among themselves to use guns to prevent their being apprehended. By the end of the evidence in the trial, the prosecutor, after a lengthy discussion with the judge, decided to put the case to the jury on the basis that the common agreement between the men was simply to assist each other to avoid apprehension. The advantage this gave the prosecution was that it was unnecessary for the jury to decide that the use of a gun was part of this common agreement. The respondent, Mr T, was convicted of murder as a secondary party, and that must have been because the jury was satisfied that he had foreseen the possibility that, in avoiding arrest, one of the others would use a gun.
Mr T appealed against his conviction to the CCA NSW, on the basis that before he could be liable in this way, a common intent to commit a crime would have to be proved, and here, escaping apprehension was not a crime. Since there was no “foundational” crime, the CCA quashed his conviction and entered an acquittal. The Crown applied, in this present case, to the High Court of Australia for leave to appeal this decision, and for an order for a new trial.
The High Court held, by a majority of 4 to 3, that there should be a new trial. The dissenters were, jointly, Gleeson CJ and Callinan J, and in a separate judgment, Kirby J. The majority (Gummow, Hayne, Heydon and Crennan JJ) delivered a joint judgment.
The Crown’s application was to advance the case on the basis that the men in the car had planned to commit robbery, and this killing was a foreseeable consequence of the pursuit of that common purpose. This way of inviting a conviction had not been offered before in the proceedings.
The main issues were:
- Should the public interest in the prosecution and conviction of offenders govern the decision?
- Should the prosecution be bound by its tactical decisions at trial?
- Would ordering a new trial amount to giving the prosecution an opportunity to make a new case, contrary to principles of avoiding double jeopardy?
- Should the prosecution be allowed to raise the new point on appeal, when it hadn’t raised it either at trial or on the appeal in the court below?
- Was there sufficient evidence of the newly proposed common purpose to warrant a new trial?
- How difficult should it be for an appellate court’s order for an acquittal to be overturned?
- How much involvement should judges have in the way the prosecution chose to bring its case, especially if the prosecution could be said to have squandered its chances at trial?
- Does the jurisdiction of the High Court of Australia include acting as an appellate court or as a court of error? Is the HCA limited to reviewing the exercise of a discretion by the CCA?
- Was there a miscarriage of justice for which a more adequate remedy was available than an order for a new trial, or did the fact that this was the murder of a policeman require a decision by a jury rather than an acquittal arising from a deficiency in the law?
The case illustrates how important matters of policy can arise from relatively straightforward facts. So many policy issues arose here that any decision could have been justified, which explains the 4 - 3 division between the High Court justices.
The problem with the case at the trial was that the prosecution became conscious of the weakness of the available inference of agreement to use a gun to prevent apprehension, which was the original basis on which it put its case. Instead of accepting almost inevitable defeat, the prosecution changed its stance. It would have been possible to allege, at the outset, liability in the third way - that identified on appeal, involving an allegation of an agreement to commit robbery. Had that been done, the defence would have been fully informed of its jeopardy before the trial.
Sometimes, however, mistakes just can't be allowed to happen.
Tuesday, March 13, 2007
Lurking doubts
Recently the Privy Council has reminded us of the appropriate way to approach the question whether there has been a substantial miscarriage of justice in a case, requiring the quashing of a conviction: Dookran v The State (Trinidad and Tobago) [2007] UKPC 15 (7 March 2007).
The facts of the case, which are a tale of sex, love, jealousy, and death, do not need to be traversed here. At issue, in respect of the appeal by one of the two appellants, the daughter, was whether the Court of Appeal had applied the proviso correctly. That Court, having decided that her statement should not have been used in evidence, nevertheless concluded:
“In all the circumstances we hold that the case against this appellant was strong even in the absence of the statement and there was no miscarriage of justice.”
The Privy Council pointed out that this was the wrong test, para 14:
“On the contrary, the Court of Appeal were entitled to apply the proviso and uphold [her] conviction only if they could be satisfied that, without that evidence, a reasonable jury would inevitably have convicted her. The Court of Appeal did not apply that test and so their conclusion that there was no miscarriage of justice and that her appeal should be dismissed was fundamentally flawed.”
Given that the Court below had applied the wrong test, what should the Privy Council do? Obviously, it had to apply the correct test: would a reasonable jury inevitably have convicted? The other evidence against her was from an eyewitness (her sister) to the killing, who had been treated as a suspect when interviewed by the police. At trial, the prosecution case was that her evidence was supported by the appellant’s own statement. Having held that that statement should not have been used in evidence, the eyewitness evidence was unsupported. The Privy Council concluded, para 17:
“It is impossible to affirm that, without that corroboration from the admission statement, any reasonable jury would inevitably have rejected the criticism of [the eyewitness’s] evidence and relied on her evidence alone to convict [this appellant]. In these circumstances there is no room for applying the proviso.”
The other appellant was the mother of the first appellant (and, indeed, of the victim and the eyewitness). The Board summarised the basis of the argument for her as follows, para 28:
“Although reference to lurking doubt has been criticised from time to time as an unwarranted gloss on the language of the statute regulating appeal proceedings in England and Wales, it is really just one way in which an appeal court addresses the fundamental question: Is the conviction safe? In the vast majority of cases the answer to that question will be found simply by considering whether the rules of procedure and the rules of law, including the rules on the admissibility of evidence, have been applied properly. Very exceptionally, however, even where the rules have been properly applied, on the basis of the "general feel of the case as the Court experiences it", there may remain a lurking doubt in the minds of the appellate judges which makes them wonder whether justice has been done: R v Cooper [1969] 1 QB 267, 271, per Widgery LJ.”
In considering whether there was this sort of lurking doubt, the Board mentioned the following points. The mother’s statement was taken in circumstances not unrelated to those in which inadmissible statements had been taken (para 31). The trial judge seemed to have been concerned that too much weight might be given to her statement (para 32). There were factors which could have made here more vulnerable than an average person when interviewed in the police station (para 33). A material witness to the events in the police station was not available to give evidence at the trial (para 34). The factors affecting the credibility of the eyewitness also applied to this appellant (para 35). These matters led the Board to conclude:
“…their Lordships cannot avoid a residual feeling of unease about whether justice has been done in [the mother’s] case and so about the safety of her conviction. …”.
This case is a straightforward illustration of how appellate courts should approach the application of the proviso when complaints are made alleging the wrongful admission of evidence. It is noteworthy that the appellate court should not go about constructing a case against the appellant in place of the flawed case at trial. It should not try to explain away inconvenient circumstances in order to uphold a conviction. It should not, even, apply a high burden on the appellant of showing a reasonable doubt, in the sense of a doubt based on reason, or logic.
The facts of the case, which are a tale of sex, love, jealousy, and death, do not need to be traversed here. At issue, in respect of the appeal by one of the two appellants, the daughter, was whether the Court of Appeal had applied the proviso correctly. That Court, having decided that her statement should not have been used in evidence, nevertheless concluded:
“In all the circumstances we hold that the case against this appellant was strong even in the absence of the statement and there was no miscarriage of justice.”
The Privy Council pointed out that this was the wrong test, para 14:
“On the contrary, the Court of Appeal were entitled to apply the proviso and uphold [her] conviction only if they could be satisfied that, without that evidence, a reasonable jury would inevitably have convicted her. The Court of Appeal did not apply that test and so their conclusion that there was no miscarriage of justice and that her appeal should be dismissed was fundamentally flawed.”
Given that the Court below had applied the wrong test, what should the Privy Council do? Obviously, it had to apply the correct test: would a reasonable jury inevitably have convicted? The other evidence against her was from an eyewitness (her sister) to the killing, who had been treated as a suspect when interviewed by the police. At trial, the prosecution case was that her evidence was supported by the appellant’s own statement. Having held that that statement should not have been used in evidence, the eyewitness evidence was unsupported. The Privy Council concluded, para 17:
“It is impossible to affirm that, without that corroboration from the admission statement, any reasonable jury would inevitably have rejected the criticism of [the eyewitness’s] evidence and relied on her evidence alone to convict [this appellant]. In these circumstances there is no room for applying the proviso.”
The other appellant was the mother of the first appellant (and, indeed, of the victim and the eyewitness). The Board summarised the basis of the argument for her as follows, para 28:
“Although reference to lurking doubt has been criticised from time to time as an unwarranted gloss on the language of the statute regulating appeal proceedings in England and Wales, it is really just one way in which an appeal court addresses the fundamental question: Is the conviction safe? In the vast majority of cases the answer to that question will be found simply by considering whether the rules of procedure and the rules of law, including the rules on the admissibility of evidence, have been applied properly. Very exceptionally, however, even where the rules have been properly applied, on the basis of the "general feel of the case as the Court experiences it", there may remain a lurking doubt in the minds of the appellate judges which makes them wonder whether justice has been done: R v Cooper [1969] 1 QB 267, 271, per Widgery LJ.”
In considering whether there was this sort of lurking doubt, the Board mentioned the following points. The mother’s statement was taken in circumstances not unrelated to those in which inadmissible statements had been taken (para 31). The trial judge seemed to have been concerned that too much weight might be given to her statement (para 32). There were factors which could have made here more vulnerable than an average person when interviewed in the police station (para 33). A material witness to the events in the police station was not available to give evidence at the trial (para 34). The factors affecting the credibility of the eyewitness also applied to this appellant (para 35). These matters led the Board to conclude:
“…their Lordships cannot avoid a residual feeling of unease about whether justice has been done in [the mother’s] case and so about the safety of her conviction. …”.
This case is a straightforward illustration of how appellate courts should approach the application of the proviso when complaints are made alleging the wrongful admission of evidence. It is noteworthy that the appellate court should not go about constructing a case against the appellant in place of the flawed case at trial. It should not try to explain away inconvenient circumstances in order to uphold a conviction. It should not, even, apply a high burden on the appellant of showing a reasonable doubt, in the sense of a doubt based on reason, or logic.
Tuesday, February 20, 2007
Trial by unjust law
Today’s decision by our Supreme Court, Hansen v R [2007] NZSC 7 (20 February 2007), holds that some trials are conducted under law that is an unjustifiable limitation on the presumption of innocence.
The implications of this are considerable. Do such trials contravene the accused’s right to a fair trial, which is an absolute right, so that convictions obtained at them cannot be upheld?
Should Parliament reform the impugned law, s 6(6) of the Misuse of Drugs Act 1975, so that it does not place a legal burden of proof on the accused?
The foundation of Hansen is a finding by all 5 members of the Court that the expression “until the contrary is proved” can not mean “until a reasonable doubt is raised”. It is pointless, now, to dispute that, although in England and Wales that meaning is accepted.
The absence of a meaning that did not involve more than a justifiable limitation on the right to be presumed innocent meant that the Court had to apply the unjustifiable limitation (namely, that the accused had to prove, on the balance of probabilities, lack of intent to supply a drug).
Parliament had been assured by the Attorney-General in 2005, when it revised the offending provision, that there was no unjustified limitation of the accused’s rights. The Supreme Court has now decided that that assurance was wrong (although Blanchard J dissented on this point).
Justice McGrath put the position in this way:
“[254] Articulating that reasoning serves the important function of bringing to theattention of the executive branch of government that the court is of the view thatthere is a measure on the statute book which infringes protected rights and freedoms,which the court has decided is not a justified limitation. It is then for the other branches of government to consider how to respond to the court’s finding. Whilethey are under no obligation to change the law and remedy the inconsistency, it is areasonable constitutional expectation that there will be a reappraisal of the objectivesof the particular measure, and of the means by which they were implemented in thelegislation, in light of the finding of inconsistency with these fundamental rights andfreedoms concerning which there is general consensus in New Zealand society andthere are international obligations to affirm.”
None of the judges in Hansen considered whether trials where the offending provision applies will necessarily be unfair. One would expect that, in most cases, the provision will have little scope for real effect on the accused’s risk of conviction. It is only in borderline cases, where the accused has possession of a quantity of drug close to that at which he is presumed, by this provision, to have it for supply, that there is a risk that he will be found guilty although the jury was not satisfied beyond reasonable doubt that he had that purpose. He could then, perhaps, argue that the proceedings were biased against him, and that this bias, albeit required by law, was unjustifiable.
It is now unlikely that the prosecution will rely on the statutory presumption, in its present form,
where the amount of drug is close to the presumptive level. It is clear that the matter needs to be addressed by Parliament.
The implications of this are considerable. Do such trials contravene the accused’s right to a fair trial, which is an absolute right, so that convictions obtained at them cannot be upheld?
Should Parliament reform the impugned law, s 6(6) of the Misuse of Drugs Act 1975, so that it does not place a legal burden of proof on the accused?
The foundation of Hansen is a finding by all 5 members of the Court that the expression “until the contrary is proved” can not mean “until a reasonable doubt is raised”. It is pointless, now, to dispute that, although in England and Wales that meaning is accepted.
The absence of a meaning that did not involve more than a justifiable limitation on the right to be presumed innocent meant that the Court had to apply the unjustifiable limitation (namely, that the accused had to prove, on the balance of probabilities, lack of intent to supply a drug).
Parliament had been assured by the Attorney-General in 2005, when it revised the offending provision, that there was no unjustified limitation of the accused’s rights. The Supreme Court has now decided that that assurance was wrong (although Blanchard J dissented on this point).
Justice McGrath put the position in this way:
“[254] Articulating that reasoning serves the important function of bringing to theattention of the executive branch of government that the court is of the view thatthere is a measure on the statute book which infringes protected rights and freedoms,which the court has decided is not a justified limitation. It is then for the other branches of government to consider how to respond to the court’s finding. Whilethey are under no obligation to change the law and remedy the inconsistency, it is areasonable constitutional expectation that there will be a reappraisal of the objectivesof the particular measure, and of the means by which they were implemented in thelegislation, in light of the finding of inconsistency with these fundamental rights andfreedoms concerning which there is general consensus in New Zealand society andthere are international obligations to affirm.”
None of the judges in Hansen considered whether trials where the offending provision applies will necessarily be unfair. One would expect that, in most cases, the provision will have little scope for real effect on the accused’s risk of conviction. It is only in borderline cases, where the accused has possession of a quantity of drug close to that at which he is presumed, by this provision, to have it for supply, that there is a risk that he will be found guilty although the jury was not satisfied beyond reasonable doubt that he had that purpose. He could then, perhaps, argue that the proceedings were biased against him, and that this bias, albeit required by law, was unjustifiable.
It is now unlikely that the prosecution will rely on the statutory presumption, in its present form,
where the amount of drug is close to the presumptive level. It is clear that the matter needs to be addressed by Parliament.
Thursday, February 08, 2007
How satisfying was that!
The High Court of Australia has, this week, held that the requirement that a judge be “satisfied” of something (here, the appropriateness of revoking a non-parole period, which, in this case, would mean no possibility of release on a life sentence), does not entail a standard of decision analogous to a standard of proof: Leach v R [2007] HCA 3 (6 February 2007).
I have previously noted here some discussion over whether a standard of decision is applicable to requirements like the court having to be “satisfied”. I use the expression “standard of decision” to acknowledge that the decision is a matter of judgment, based on facts, and that those facts will have been determined to a standard appropriate to their context. Indeed, in Leach, the High Court of Australia distinguished between the factual matters on which the decision had to be based, these having to be proved beyond reasonable doubt, and the judgment on those facts whereby the court, having to be “satisfied” was exercising a judgment not amenable to a standard. See, in particular, para 47 of the joint judgment:
“…. The concept of a standard of proof, like the related concept of onus of proof, is apposite to the resolution of disputed questions of fact in issue in the litigation. Both onus and standard of proof concern the adducing of evidence at trial and the determination of which of the facts in issue are established by that evidence[citing Cross on Evidence, 7th Aust ed (2004) at [7005]; Stone, "Burden of Proof and the Judicial Process: A Commentary on Joseph Constantine Steamship Ltd v Imperial Smelting Corporation Ltd", (1944) 60 Law Quarterly Review 262]. Standard of proof is not a concept that is apposite to the resolution of a contested question of judgment of the kind required by [the relevant section], any more than it is apposite to the resolution of a disputed question of law.”
In contrast, the House of Lords in O v Crown Court at Harrow (blogged 31 July 2006) - not mentioned in Leach - held that in the context considered there, whether release on bail was appropriate, “satisfied” meant more than an exercise of judgment, and connoted a burden or presumption.
There is plenty of scope for discussion of this point, as requirements that a court be “satisfied” of something are common. In the Sentencing Act 2002[NZ], for example, s 24(2)(b) and s 86(2) apply this requirement to determination of facts at sentencing, and to deciding whether an extended non-parole period is appropriate, respectively.
Obviously, decisions in some contexts will be more important than in others, so the requirement that a judge be “satisfied” of a critical matter needs to accommodate that. This does not, however, mean that the standard of satisfaction, if there is a standard, will vary; instead, the weight of the considerations needed to meet the standard could be regarded as the variables. An analogous point was made in relation to “the balance of probabilities” in Sharma v DPP and others (Trinidad and Tobago) (blogged 11 December 2006).
Refusals to attach a standard to the requirement that the judge be “satisfied” are, no doubt, put on the policy basis that finality in litigation is desirable. Unless a lower court has taken into account irrelevant matters, or failed to consider relevant matters, or has been plainly in error, its decision on a discretionary matter should be final. On the other hand, where a decision concerns matters that are the subject of human rights, international trends are towards interpreting “satisfied” as carrying a standard of beyond reasonable doubt.
See also my discussion of proof and risk in relation to another House of Lords decision not cited
in Leach: re McClean, 19 July 2005.
I have previously noted here some discussion over whether a standard of decision is applicable to requirements like the court having to be “satisfied”. I use the expression “standard of decision” to acknowledge that the decision is a matter of judgment, based on facts, and that those facts will have been determined to a standard appropriate to their context. Indeed, in Leach, the High Court of Australia distinguished between the factual matters on which the decision had to be based, these having to be proved beyond reasonable doubt, and the judgment on those facts whereby the court, having to be “satisfied” was exercising a judgment not amenable to a standard. See, in particular, para 47 of the joint judgment:
“…. The concept of a standard of proof, like the related concept of onus of proof, is apposite to the resolution of disputed questions of fact in issue in the litigation. Both onus and standard of proof concern the adducing of evidence at trial and the determination of which of the facts in issue are established by that evidence[citing Cross on Evidence, 7th Aust ed (2004) at [7005]; Stone, "Burden of Proof and the Judicial Process: A Commentary on Joseph Constantine Steamship Ltd v Imperial Smelting Corporation Ltd", (1944) 60 Law Quarterly Review 262]. Standard of proof is not a concept that is apposite to the resolution of a contested question of judgment of the kind required by [the relevant section], any more than it is apposite to the resolution of a disputed question of law.”
In contrast, the House of Lords in O v Crown Court at Harrow (blogged 31 July 2006) - not mentioned in Leach - held that in the context considered there, whether release on bail was appropriate, “satisfied” meant more than an exercise of judgment, and connoted a burden or presumption.
There is plenty of scope for discussion of this point, as requirements that a court be “satisfied” of something are common. In the Sentencing Act 2002[NZ], for example, s 24(2)(b) and s 86(2) apply this requirement to determination of facts at sentencing, and to deciding whether an extended non-parole period is appropriate, respectively.
Obviously, decisions in some contexts will be more important than in others, so the requirement that a judge be “satisfied” of a critical matter needs to accommodate that. This does not, however, mean that the standard of satisfaction, if there is a standard, will vary; instead, the weight of the considerations needed to meet the standard could be regarded as the variables. An analogous point was made in relation to “the balance of probabilities” in Sharma v DPP and others (Trinidad and Tobago) (blogged 11 December 2006).
Refusals to attach a standard to the requirement that the judge be “satisfied” are, no doubt, put on the policy basis that finality in litigation is desirable. Unless a lower court has taken into account irrelevant matters, or failed to consider relevant matters, or has been plainly in error, its decision on a discretionary matter should be final. On the other hand, where a decision concerns matters that are the subject of human rights, international trends are towards interpreting “satisfied” as carrying a standard of beyond reasonable doubt.
See also my discussion of proof and risk in relation to another House of Lords decision not cited
in Leach: re McClean, 19 July 2005.
Monday, February 05, 2007
Appeal verdicts
How should an appellate court decide whether a verdict is safe? It is difficult to find agreement among senior appellate judges on the safety of verdicts, even where they express the relevant legal approach in similar terms. Only last week the Supreme Court of Canada split 5 – 4 on whether a verdict in a lower court was reasonable: R v Beaudry [2007] SCC 5 (31 January 2007).
I have previously mentioned here several cases on this difficulty: Dial v The State (Trinidad and Tobago) 17 February 2005, R v Stevens 25 October 2005, Taylor v R (Jamaica) 14 March 2006. And next month, the Privy Council will hear an appeal, the last from New Zealand, by David Bain, which concerns whether convictions for murders should be upheld in the light of fresh evidence.
In Beaudry the majority emphasised that it is the verdict that is reviewed, not the process that was followed to reach it. An error of reasoning in the lower court (here the trial was by judge alone, so reasons for the verdict were available for inspection on appeal) did not, of itself, mean that the verdict was unsafe; instead, the appellate court had to thoroughly reexamine the evidence, bringing to bear the weight of its judicial experience in deciding whether the verdict was a reasonable one (para 58).
I will, I hope, be forgiven for thinking that that is a very vague formulation of the proper appellate task. Some help might be obtained from a combination of dicta from the cases mentioned above, so that the question for the appellate court is whether a jury might, on a proper approach, have a reasonable doubt about the defendant’s guilt (Dial), bearing in mind that the jury may have different perceptions of the facts from the perceptions entertained by appellate judges (Stevens), and that the jury must rule out all inferences consistent with innocence before it can convict (Taylor).
I have previously mentioned here several cases on this difficulty: Dial v The State (Trinidad and Tobago) 17 February 2005, R v Stevens 25 October 2005, Taylor v R (Jamaica) 14 March 2006. And next month, the Privy Council will hear an appeal, the last from New Zealand, by David Bain, which concerns whether convictions for murders should be upheld in the light of fresh evidence.
In Beaudry the majority emphasised that it is the verdict that is reviewed, not the process that was followed to reach it. An error of reasoning in the lower court (here the trial was by judge alone, so reasons for the verdict were available for inspection on appeal) did not, of itself, mean that the verdict was unsafe; instead, the appellate court had to thoroughly reexamine the evidence, bringing to bear the weight of its judicial experience in deciding whether the verdict was a reasonable one (para 58).
I will, I hope, be forgiven for thinking that that is a very vague formulation of the proper appellate task. Some help might be obtained from a combination of dicta from the cases mentioned above, so that the question for the appellate court is whether a jury might, on a proper approach, have a reasonable doubt about the defendant’s guilt (Dial), bearing in mind that the jury may have different perceptions of the facts from the perceptions entertained by appellate judges (Stevens), and that the jury must rule out all inferences consistent with innocence before it can convict (Taylor).
Friday, February 02, 2007
Reliability and relevance
Concealed within the requirement that evidence, to be admissible, must be relevant, is a threshold of reliability.
It is a fundamental principle that relevant evidence is - subject to exclusionary rules - admissible, and that evidence that is not relevant is not admissible: see, for example, s 7 of the Evidence Act 2006[NZ]. “Relevant” means having a tendency to prove or disprove anything that is of consequence to the determination of the proceeding. Is any “tendency”, no matter how slight, sufficient to establish relevance? Logically, the tendency of evidence to prove something must include a requirement that it has some reliability. The need for reliability can be seen from the use of that term in the Act.
The reliability requirement is found as an express requirement in the Evidence Act 2006[NZ], as a qualification on the admissibility of particular sorts of evidence. For example, hearsay evidence requires, from the circumstances in which it was obtained, “reasonable assurance that the statement is reliable” (s 18(1)(a)), unreliable statements by defendants in criminal proceedings must be excluded (s 28(2)), previous consistent statements must have been made in circumstances that provide “reasonable assurance” that they are reliable (s 35(3)(a)), and there are reliability rules concerning identification evidence (visual identification: s 45(1) and (2), voice identification: s 46). These references to reliability are consistent with the view that reliability is a fundamental requirement for admissibility.
A concept akin to reliability is probative value, but they are not the same. Evidence cannot have probative value unless it has reliability, and increasing reliability may lend the evidence more probative value, but not necessarily. Although highly reliable, evidence might have relatively slight probative value. Reliability reflects accuracy, whereas probative value is a reflection of the importance of the evidence to the logic of the case.
In the terminology of the Act, probative value is something that a judge must weigh against unfairly prejudicial effect, and this applies generally (s 8). The expert opinion rule in s 25 is governed by this probative value determination, because of its general application, but neither probative value nor reliability are mentioned in s 25. This raises the question: does expert opinion evidence have to be reliable before it can be admissible?
Expert opinion is admissible if (s 25(1)) “the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.” Here, “substantial help” may well be contingent on reliability; this seems to be the only route by which the common law requirements, of general acceptance of the opinion among experts in the field, can come into play in s 25.
Yesterday, the Supreme Court of Canada split 6-3 on what was essentially a difference about whether a threshold of reliability is a fundamental requirement for the admissibility of evidence: R v Trochym [2007] SCC 6 (1 February 2007). Here, the evidence was that of a witness who claimed to have seen a person she said was the accused, leaving the victim’s apartment, some time after the victim was murdered. She gave two versions of exactly when she had seen this: her first version was that the accused had left the day after the murder, but later, under hypnosis, she changed this to the same day as the murder. Was the version she had given under hypnosis sufficiently reliable to be admitted in evidence, so that its weight (probative value) could be assessed by the jury? Or, should the first question be whether her hypnotised version had sufficient probative value, compared to its unfairly prejudicial effect, for the matter of its weight to be left with the jury?
The majority (McLachlin CJ, Binnie, LeBel, Deschamps, and Fish JJ, with Charron J concurring but differing slightly, particularly as to the position on the part of the witness’s evidence that was not the subject of hypnotic inquiry) held that reliability is the fundamental requirement for admissibility as far as “novel scientific evidence” is concerned. Whereas in many areas of scientific inquiry the reliability of expert evidence is established, science develops:
“31. Not all scientific evidence, or evidence that results from the use of a scientific technique, must be screened before being introduced into evidence. In some cases, the science in question is so well established that judges can rely on the fact that the admissibility of evidence based on it has been clearly recognized by the courts in the past. Other cases may not be so clear. Like the legal community, the scientific community continues to challenge and improve upon its existing base of knowledge. As a result, the admissibility of scientific evidence is not frozen in time.
“32. While some forms of scientific evidence become more reliable over time, others may become less so as further studies reveal concerns. Thus, a technique that was once admissible may subsequently be found to be inadmissible. An example of the first situation, where, upon further refinement and study, a scientific technique becomes sufficiently reliable to be used in criminal trials, is DNA matching evidence, which this Court recognized in R. v. Terceira, 1999 CanLII 645 (S.C.C.), [1999] 3 S.C.R. 866. An example of the second situation, where a technique that has been employed for some time comes to be questioned, is so-called “dock”, or in-court, identification evidence. In R. v. Hibbert, 2002 SCC 39 (CanLII), [2002] 2 S.C.R. 445, 2002 SCC 39, at para. 50, Arbour J., writing for the majority, stated that despite its long-standing use, dock identification is almost totally unreliable. Therefore, even if it has received judicial recognition in the past, a technique or science whose underlying assumptions are challenged should not be admitted in evidence without first confirming the validity of those assumptions.
“33. … Even though the use of expert testimony was not in itself at issue in the present case — this appeal concerns the application of a scientific technique to the testimony of a lay witness — the threshold reliability of the technique, and its impact on the testimony, remains crucial to the fairness of the trial.”
The emphasis is on the threshold of reliability and the fairness of the trial. The majority concluded, para 55, and 65-66, that “this technique and its impact on human memory are not understood well enough for post-hypnosis testimony to be sufficiently reliable to be used in a court of law.” That applies to the witness’s evidence on topics that have been the subject of hypnosis. As far as evidence from the witness about matters that have not been mentioned under hypnosis, (as held by the majority except Charron J) the judge determines admissibility by assessing whether the detrimental effects of hypnosis are outweighed by the probative value of the evidence (para 64). Charron J would not require the balancing exercise to automatically apply here (para 87), and she would also allow evidence of topics covered under hypnosis to be given if supported by a pre-hypnosis consistent statement (para 88).
The minority (Bastarache, Abella and Rothstein JJ) would have admitted the post-hypnotic evidence, preferring not to change the rule. They declined to classify this area as novel science, and would have confined the reliability test, in this context, to novel science. They considered that the majority had placed too high a standard for consensus in the expert community. In particular, they held that the majority’s approach, which took judicial notice of cases in the USA in which experts had expressed doubts on the reliability of testimony by witnesses who had been hypnotised, amounted to denying a party in the present case the opportunity to cross-examine those experts.
The Court in Trochym was unanimous on another aspect of the appeal: similar fact evidence had been wrongly admitted. A single incident (knocking on the victim’s door after a fight with her) did not disclose a pattern of behaviour, and was not unique conduct that identified the offender (paras 74-78, 83; 185, 187).
This case illustrates that there are times when the judge cannot simply say that the issue of admissibility depends on whether the probative value of the evidence outweighs its unfairly prejudicial effect. The first requirement is relevance, and relevance depends on whether the evidence has a tendency to prove or disprove a matter in issue, and that in turn depends on a threshold of reliability. Doubts about the probative value of evidence may extend beyond the balancing exercise, to the more fundamental question of relevance.
It is a fundamental principle that relevant evidence is - subject to exclusionary rules - admissible, and that evidence that is not relevant is not admissible: see, for example, s 7 of the Evidence Act 2006[NZ]. “Relevant” means having a tendency to prove or disprove anything that is of consequence to the determination of the proceeding. Is any “tendency”, no matter how slight, sufficient to establish relevance? Logically, the tendency of evidence to prove something must include a requirement that it has some reliability. The need for reliability can be seen from the use of that term in the Act.
The reliability requirement is found as an express requirement in the Evidence Act 2006[NZ], as a qualification on the admissibility of particular sorts of evidence. For example, hearsay evidence requires, from the circumstances in which it was obtained, “reasonable assurance that the statement is reliable” (s 18(1)(a)), unreliable statements by defendants in criminal proceedings must be excluded (s 28(2)), previous consistent statements must have been made in circumstances that provide “reasonable assurance” that they are reliable (s 35(3)(a)), and there are reliability rules concerning identification evidence (visual identification: s 45(1) and (2), voice identification: s 46). These references to reliability are consistent with the view that reliability is a fundamental requirement for admissibility.
A concept akin to reliability is probative value, but they are not the same. Evidence cannot have probative value unless it has reliability, and increasing reliability may lend the evidence more probative value, but not necessarily. Although highly reliable, evidence might have relatively slight probative value. Reliability reflects accuracy, whereas probative value is a reflection of the importance of the evidence to the logic of the case.
In the terminology of the Act, probative value is something that a judge must weigh against unfairly prejudicial effect, and this applies generally (s 8). The expert opinion rule in s 25 is governed by this probative value determination, because of its general application, but neither probative value nor reliability are mentioned in s 25. This raises the question: does expert opinion evidence have to be reliable before it can be admissible?
Expert opinion is admissible if (s 25(1)) “the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.” Here, “substantial help” may well be contingent on reliability; this seems to be the only route by which the common law requirements, of general acceptance of the opinion among experts in the field, can come into play in s 25.
Yesterday, the Supreme Court of Canada split 6-3 on what was essentially a difference about whether a threshold of reliability is a fundamental requirement for the admissibility of evidence: R v Trochym [2007] SCC 6 (1 February 2007). Here, the evidence was that of a witness who claimed to have seen a person she said was the accused, leaving the victim’s apartment, some time after the victim was murdered. She gave two versions of exactly when she had seen this: her first version was that the accused had left the day after the murder, but later, under hypnosis, she changed this to the same day as the murder. Was the version she had given under hypnosis sufficiently reliable to be admitted in evidence, so that its weight (probative value) could be assessed by the jury? Or, should the first question be whether her hypnotised version had sufficient probative value, compared to its unfairly prejudicial effect, for the matter of its weight to be left with the jury?
The majority (McLachlin CJ, Binnie, LeBel, Deschamps, and Fish JJ, with Charron J concurring but differing slightly, particularly as to the position on the part of the witness’s evidence that was not the subject of hypnotic inquiry) held that reliability is the fundamental requirement for admissibility as far as “novel scientific evidence” is concerned. Whereas in many areas of scientific inquiry the reliability of expert evidence is established, science develops:
“31. Not all scientific evidence, or evidence that results from the use of a scientific technique, must be screened before being introduced into evidence. In some cases, the science in question is so well established that judges can rely on the fact that the admissibility of evidence based on it has been clearly recognized by the courts in the past. Other cases may not be so clear. Like the legal community, the scientific community continues to challenge and improve upon its existing base of knowledge. As a result, the admissibility of scientific evidence is not frozen in time.
“32. While some forms of scientific evidence become more reliable over time, others may become less so as further studies reveal concerns. Thus, a technique that was once admissible may subsequently be found to be inadmissible. An example of the first situation, where, upon further refinement and study, a scientific technique becomes sufficiently reliable to be used in criminal trials, is DNA matching evidence, which this Court recognized in R. v. Terceira, 1999 CanLII 645 (S.C.C.), [1999] 3 S.C.R. 866. An example of the second situation, where a technique that has been employed for some time comes to be questioned, is so-called “dock”, or in-court, identification evidence. In R. v. Hibbert, 2002 SCC 39 (CanLII), [2002] 2 S.C.R. 445, 2002 SCC 39, at para. 50, Arbour J., writing for the majority, stated that despite its long-standing use, dock identification is almost totally unreliable. Therefore, even if it has received judicial recognition in the past, a technique or science whose underlying assumptions are challenged should not be admitted in evidence without first confirming the validity of those assumptions.
“33. … Even though the use of expert testimony was not in itself at issue in the present case — this appeal concerns the application of a scientific technique to the testimony of a lay witness — the threshold reliability of the technique, and its impact on the testimony, remains crucial to the fairness of the trial.”
The emphasis is on the threshold of reliability and the fairness of the trial. The majority concluded, para 55, and 65-66, that “this technique and its impact on human memory are not understood well enough for post-hypnosis testimony to be sufficiently reliable to be used in a court of law.” That applies to the witness’s evidence on topics that have been the subject of hypnosis. As far as evidence from the witness about matters that have not been mentioned under hypnosis, (as held by the majority except Charron J) the judge determines admissibility by assessing whether the detrimental effects of hypnosis are outweighed by the probative value of the evidence (para 64). Charron J would not require the balancing exercise to automatically apply here (para 87), and she would also allow evidence of topics covered under hypnosis to be given if supported by a pre-hypnosis consistent statement (para 88).
The minority (Bastarache, Abella and Rothstein JJ) would have admitted the post-hypnotic evidence, preferring not to change the rule. They declined to classify this area as novel science, and would have confined the reliability test, in this context, to novel science. They considered that the majority had placed too high a standard for consensus in the expert community. In particular, they held that the majority’s approach, which took judicial notice of cases in the USA in which experts had expressed doubts on the reliability of testimony by witnesses who had been hypnotised, amounted to denying a party in the present case the opportunity to cross-examine those experts.
The Court in Trochym was unanimous on another aspect of the appeal: similar fact evidence had been wrongly admitted. A single incident (knocking on the victim’s door after a fight with her) did not disclose a pattern of behaviour, and was not unique conduct that identified the offender (paras 74-78, 83; 185, 187).
This case illustrates that there are times when the judge cannot simply say that the issue of admissibility depends on whether the probative value of the evidence outweighs its unfairly prejudicial effect. The first requirement is relevance, and relevance depends on whether the evidence has a tendency to prove or disprove a matter in issue, and that in turn depends on a threshold of reliability. Doubts about the probative value of evidence may extend beyond the balancing exercise, to the more fundamental question of relevance.
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