Clarity and obscurity

One of the things that makes law both difficult and interesting is the shift between clarity and obscurity. Authoritative statements of the law, expressed clearly and simply, and in apparently absolute terms, tend later to be qualified by cases in which those requirements are not treated as absolute.

Readers of Daniel and others v The State of Trinidad and Tobago [2007] UKPC 39 (13 June 2007) will, no doubt, be reminded of this characteristic of the law. In addition to the clarity/obscurity shift, there can also be a failure to offer a precise statement of law notwithstanding that the opportunity for such has arisen. Here, the Board declined (para 34) to formulate rules subsidiary to the requirement that a person in custody be informed of his right to legal advice. One of the appellants, being illiterate and therefore probably at some disadvantage, had been told of his right to a lawyer but had not been told how he might exercise that right. The Board held that it was a matter for the judge in the circumstances of each case to decide whether the defendant had been properly informed of his right to legal advice. In contrast, the approach that the Board took to this right in Ramsarran v Attorney-General of Trinidad and Tobago [2005] UKPC 8 (blogged here 28 February 2005) emphasises the social utility in facilitating the right to legal advice. That case, not cited in Daniel, concerned arrest on warrant for outstanding fines, whereas this involved murder.

Another point of appeal raised in Daniel was the omission of a good character direction, caused by the defendant’s counsel’s failure to raise the matter. This is something, the effect of which depends on the circumstances of each case; there are some cases where omission of mention of the defendant’s good character can result in the quashing of a conviction: see the blog on Gilbert v R 29 March 2006. In Daniel the omission of the point was held not to have prejudiced the fairness of the trial, as the defendant had been in custody awaiting trial on other serious charges at the time of his trial for murder. The Board held that the risk of this being disclosed to the jury if character were put in issue made counsel’s omission understandable.

An interesting, although not novel, point about secondary liability was mentioned in Daniel. Departure from a joint enterprise (or common intention) by one offender, who embarks on the commission of an offence outside that joint enterprise, can be followed by a decision by another offender to assist him in the commission of that new offence. The Board said this about secondary liability (para 38):

“The concepts of joint enterprise and aiding and abetting cannot be placed into watertight compartments. A defendant may have joined an enterprise to commit one crime, only to find that his companions went beyond what he had contemplated and so in committing a different crime were acting outside the bounds of the joint enterprise. He may nevertheless have remained with them and lent assistance or encouragement to them in the commission of the new crime, which would make him a secondary party as an aider and abettor. The judge may have failed to appreciate this in categorising the appellants' participation exclusively as members of a joint enterprise in the case of Daniel and Archibald and as aiders and abettors in the case of Garcia and Marshall. This did not operate to their disadvantage, however, and if his directions were sufficient on the content of each concept and there was evidence on which they could properly so find, the jury were entitled to find the appellants guilty on the basis ascribed to each by the judge.”

Another topic raised in Daniel was inferences. The judge had not told the jury that they must exclude every inference consistent with innocence before they could find an accused guilty. (I will call that the exclusionary direction.) Instead, the normal direction on circumstantial evidence was given, amounting to little more than a reminder that guilt must be proved beyond reasonable doubt. The exclusionary aspect of the inferences direction was emphasised in Taylor v R (blogged 14 March 2006), and the need to consider inferences of innocence in the context of all the evidence in the case was stressed in R v Hillier (blogged 23 March 2007). These cases were not mentioned by the Board in Daniel. Whether the exclusionary direction needs to be given depends on what is appropriate in the circumstances of each case, as I noted in commenting on Taylor, but the vagueness of that approach means that the absence of an exclusionary direction on inferences will frequently become a matter for consideration on appeal.

The appeal of hypotheticals

On Wednesday Kirby J in the High Court of Australia made an interesting observation on the extent to which that Court should engage in speculation about the legal consequence of events that have not yet occurred:

“Avoiding hypothetical decisions: … experience teaches that it is ordinarily wise to withhold substantial comments on the consequences of future events for legal rights and duties. Those events (if they occur at all) have an unpleasant habit of following an unpredictable course, often quite different from that anticipated at an earlier time. From its earliest days to the present, this Court has been reluctant to proffer legal advice and predictions on the basis of hypothetical facts that have not yet arisen [footnote: The State of South Australia v The State of Victoria (1911) 12 CLR 667 at 674-675; In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 267; North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 623, cf 666-668; Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334 at 357 [49] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ]. In part, this reluctance has grown out of the constitutional requirement for there to be a "matter" before the Court. There is no problem in that regard in the present proceeding. The appellant's appeal is such a "matter". In part, it has arisen because of the Court's usual unwillingness to expand the ambit of the "matter" by offering predictions about the outcome of arguments of double jeopardy, in any future trial of the appellant, in advance of any such trial and without the concrete circumstances, enlivened by evidence, said to give rise to the peril of double jeopardy forbidden by the earlier judgment of acquittal. As recent divided decisions of this Court show, this is a tricky area of the law. It contains many difficulties [footnote: Pearce v The Queen (1998) 194 CLR 610; Island Maritime Ltd v Filipowski (2006) 226 CLR 328. See also R v Carroll (2002) 213 CLR 635].”

The case before the Court, AJS v R [2007] HCA 27 (13 June 2007) involved the power of a court of appeal to order a new trial. The point is not controversial, and essentially is that where a jury has been directed that, if it finds the accused guilty on one count, it should not consider whether or not the accused is guilty on an alternative count, and it does find him guilty of the first count, a court of appeal may, if it quashes the conviction and enters an acquittal on that count, order a new trial on the alternative count.

The fact that complex issues may arise, if the prosecution decides to proceed with the new trial on the remaining count, is irrelevant. Arguments about double jeopardy are immaterial. The other judges, in a joint judgment (making an order with which Kirby J agreed), did give some consideration to what might happen if such arguments were raised, and decided this point as follows:

“19. No question of double jeopardy arises in the present matter. The proceedings commenced by the prosecution against the appellant were, as the Court of Appeal's orders recognised, only partly determined by that Court's disposition of the appeal. The second of the offences now under consideration (the offence of committing an indecent act) was a statutory alternative to the first. There has been and would be no double prosecution of the kind considered in Pearce. In Pearce, the prosecution sought and obtained convictions for two offences charged in the one indictment. Further, unlike Island Maritime, there would be no separate institution of a second prosecution. In this case the prosecution does not seek to institute new and different proceedings against the appellant after the final determination (against the prosecution) of earlier proceedings. The charge of incest preferred against the appellant has now been finally resolved in his favour. He is entitled to the entry of judgment and verdict of acquittal of that offence. But the other, lesser, statutory alternative offence of committing an indecent act put in issue by the presentment charging the appellant with incest has not been determined by the Court of Appeal and remains unresolved.”

Whether that is an acceptable approach to what constitutes double jeopardy is arguable. It seems beside the point to rely on procedural niceties, saying the proceedings hadn’t been determined. At the trial there was a fundamental error (leaving to the jury a charge on which there was insufficient evidence) which caused the jury to fail to consider the alternative charge. From the accused’s point of view, he was in jeopardy of conviction on either charge as soon as the trial started, and this jeopardy continued until the jury returned its verdict. The prosecution did not seek to withdraw either charge, and would have been happy with a conviction on one or the other. It was not the accused’s fault that the trial was completed unsatisfactorily. The double jeopardy rules (available to the accused in the form of the special pleas of autrefois convict or autrefois acquit, or as an application to stay the second proceedings) stem from the need to prevent an abuse of the court’s process. Such an abuse would, arguably, occur if the accused had to undergo a new trial because of this sort of systemic failure.

On the other hand, errors often occur which, when they are corrected on appeal by the quashing of convictions, lead to a new trial being ordered. Such new trials are not counted as double jeopardy. Often this occurs because the judge makes a mistake when summing up the case to the jury. These sorts of errors, certainly not the fault of the accused, result in the accused having to undergo another trial. At that trial the prosecution may be able to present a stronger case as a result of having had weaknesses highlighted by the accused at the first trial. That is not usually thought of as double jeopardy. Plainly, the policy underlying the double jeopardy doctrine needs to be clearly articulated and its applications rationalised.

Kirby J’s reservations about deciding the double jeopardy point, which is hypothetical on the present case, partly focused on the fact that the High Court has reserved its decision in a case in which the meaning of giving the accused the “full benefit” of an acquittal has to be decided (Washer v The Queen, reserved 27 April 2007). His point appears to be that it would be unfortunate if the reasoning in the joint judgment in the present case (where full argument on particular facts had not been heard) were to be used as a precedent for deciding the case that is currently reserved.

Bias and sensitivity

It seems that a reasonable apprehension that the judge is biased will be sufficient grounds for a rehearing, regardless of whether the judge’s decision was correct. This is a reflection of the absolute nature of the accused’s right to a fair hearing: a conviction resulting from an unfair hearing will be quashed. There are many examples of cases where this has occurred, without the appellate court investigating the merits of the conviction, as the index to these blogs reveals. I discussed the High Court of Australia’s decision in Antoun v R on 8 February 2006, and suggested that

“We might, by now, anticipate that a case of apprehended bias would be a substantial miscarriage of justice, given the fundamental importance of the appearance of justice, but one must acknowledge that there is, at least, an argument that whereas actual bias would be a substantial miscarriage of justice, apprehended bias falls short of that in cases where there was no loss of a real chance of acquittal.”

As yet there is no example of a court making this, at least theoretically possible, distinction between apprehended and actual bias. A recent example of apprehended bias is R v Teskey [2007] SCC (7 June 2007). Here the Supreme Court of Canada was concerned with a case where a judge, sitting alone, had announced his verdict some four months after hearing the evidence, without giving reasons, and 11 months passed before the written reasons were given, by which time the defendant had appealed against his conviction.

The decision of the majority was delivered by Charron J. Apparent bias and actual bias were seen as equally objectionable:

“21 As reiterated in R v S. (R.D.) [1997] SCC 324, [1997] 3 SCR 484, fairness and impartiality must not only be subjectively present but must also be objectively demonstrated to the informed and reasonable observer. Even though there is a presumption that judges will carry out the duties they have sworn to uphold, the presumption can be displaced. The onus is therefore on the appellant to present cogent evidence showing that, in all the circumstances, a reasonable person would apprehend that the reasons constitute an after-the-fact justification of the verdict rather than an articulation of the reasoning that led to it.”

In Teskey, the facts were relatively complex and the case against the defendant was circumstantial. Delay in giving reasons would not, of itself, have been sufficient to sustain a claim of apparent bias, but other matters combined to support a reasonable apprehension of bias. These were (para 23):

•  the trial judge’s obvious difficulty in arriving at a verdict in the months following the completion of the evidence;
  
•  the absolutely bare declaration of guilt without any indication of the underlying reasoning;
  
•  the trial judge’s expressed willingness to reconsider the verdicts immediately after their announcement;
  
•  the nature of the evidence that called for a detailed consideration and analysis before any verdict could be reached;
  
•  the failure of the trial judge to respond to repeated requests from counsel to give reasons;
  
•  the contents of the reasons referring to events long after the announcement of the verdict suggesting that they were crafted post-decision;
  
•  the inordinate delay in delivering the reasons coupled with the absence of any indication that his reasons were ready at any time during the 11 months that followed or that the trial judge had purposely deferred their issuance pending disposition of the dangerous offender application.
  

In this appeal the Court of Appeal had had regard to the judge’s written reasons in upholding the conviction, and the Supreme Court held that the Court of Appeal should not have done that. Instead of remitting the case to the Court of Appeal for it to consider the question of the conviction on the basis of the record of the hearing, a retrial was ordered. Although the only indication of bias appears to have arisen from the post-hearing events, the judge-alone procedure carries with it a right to have reasons given for the decision, and those become part of the material proper for consideration on appeal. This was a case where it would seem to a reasonable person that the reasons were a justification for the verdict, rather than the verdict being a result of the reasons, and this approach would naturally have obscured any errors of reasoning that had led to the verdict. The appellant was therefore deprived of the opportunity to challenge the reasons for the verdict.

Abella J delivered the dissenting judgment of herself, Bastarache and Deschamps JJ. This placed emphasis on the presumption of judicial integrity and the high threshold required to displace that presumption. There was nothing in the case, in the opinion of the minority, to displace that presumption.

Is talk of presumptions and thresholds really appropriate in this context? Why should there be obstacles to exposing bias? Certainly, cogent evidence of bias should be required, but it does not follow that a high standard of proof of bias should be reached before the appellate court will look at the issue. Some people would see the conferment, by the judges at common law, of this sort of immunity on their judicial colleagues as rather sanctimonious; a bias against bias.

Looking overseas

Do rights-based restrictions on acceptable evidence collecting procedures apply to officials who act outside the jurisdiction of the country in which the trial is ultimately held? In R v Hape [2007] SCC (7 June 2007), a case that will be a leading authority on extra-territoriality and international criminal law, the Supreme Court of Canada decided that, while the Charter of Rights and Freedoms does not apply outside Canada’s territory, when the trial is subsequently governed by Canadian law questions regarding the admissibility of evidence are answered by reference to the acceptability of what happened judged in the light of the Charter.

By this approach, the fact that a course of conduct in the collection of evidence was lawful in the foreign jurisdiction would not be determinative of the admissibility of the evidence in a Canadian court. The ultimate criterion was, in this case, referred to as the “fair trial” requirement, although this usage of that expression must be read in context. The reference here is not to trial fairness in the technical sense of a trial in which the law is properly applied to facts that are determined without bias, but rather it is to fairness in the public policy sense: would admission of the evidence bring the administration of justice into disrepute?

Hape contains dicta on the interpretation of Charter provisions in view of Canada’s obligations in respect of international human rights law, particularly:

“56. In interpreting the scope of application of the Charter, the courts should seek to ensure compliance with Canada’s binding obligations under international law where the express words are capable of supporting such a construction.”

In this case, RCMP officers conducted searches of the defendant’s business documents held in the Turks and Caicos Islands, under supervision of an official of that country, and believing that they were acting lawfully. There was no evidence that what was done was not lawful, and in the circumstances the searches were not unreasonable in terms of s 8 of the Charter.

This approach is what was anticipated here, in noting the European Court’s decision re an Application by Saddam Hussein (see 17 March 2006). Questions still exist concerning what approach is appropriate to the possible use of torture in a foreign jurisdiction, resulting in the obtaining of evidence for use in a domestic court. This was considered here in commenting on the House of Lords case A v Secretary of State for the Home Department (see 9 December 2005). Neither of those cases was mentioned in Hape.

Secret appeals

Public interest may require that some information not be disclosed by the prosecution even though it might be of use to the defence in preparation for trial. Obviously, this can give rise to questions about whether the trial was fair. Further questions may arise about where these issues of fairness should be determined – by the trial judge, or on appeal?

In Botmeh and Alami v United Kingdom [2007] ECHR 456 (7 June 2007) the Chamber had to determine whether the Court of Appeal of England and Wales had correctly decided that failure to disclose information to the defence had not resulted in an unfair trial. The point, it should be noted, was not whether the information should have been disclosed, as that was a matter for the national court; the European Court was concerned only with whether the proceedings had involved a breach of Article 6 of the Convention.

At trial, the accused Palestinians had been charged with conspiring to make and detonate explosives in London. Some information had been disclosed to the defence prior to the trial, to the effect that the bombs may have been planted by an Iranian organisation. It seems that little was made of this at trial, although one appellant, in giving evidence-in-chief, had referred, for the first time, to another Palestinian who had some involvement in what may have been relevant events. Other than that oblique point, no attempt was made by the defence to make use of the information they had been given concerning the possible involvement of any specific person or organisation. The trial judge had, however, mentioned to the jury that they had to consider the possibility that persons other than the accuseds were involved.

After the accuseds were convicted and sentenced, the prosecution discovered that it had failed to reveal to the judge that it had more information about the possible involvement of a Palestinian group. Significantly, however, this information was to the effect that such involvement was discounted by the security services. The appeal to the Court of Appeal was on the grounds that the defence might have been assisted by knowing why that involvement had been discounted, because if the reasons were bad then that involvement might have been a live issue.

The Court of Appeal was therefore faced having to decide how to deal with the public interest immunity (PII) question: should it hear the matter (remitting it to the trial judge was difficult, as a long time had passed since the conclusion of the trial), and, if so, how should it proceed? Defence counsel were invited to see the confidential material if they would undertake to the court that they would not disclose it to the appellants. They took advice on this point, and concluded that they could not give such an undertaking. Instead of appointing a special advocate to see the material and make submissions on it independently of the appellants’ counsel, the Court of Appeal decided to examine the material and to hear ex parte submissions from the Crown. Then, the Court released a summary of the confidential material to defence counsel, and (para 43)

“ … The applicants were given a full opportunity to make submissions on the material which had been disclosed in summary form and on its significance to the issues raised by the case. On the basis of the submissions made, the Court of Appeal concluded that no injustice had been done to the applicants by not having access to the undisclosed matter at trial, since the matter added nothing of significance to what was disclosed at trial and since no attempt had been made by the defence at trial to exploit, by adducing it in any form before the jury, the similar material which had been disclosed at trial.”

The Chamber held that, in this case, the procedure adopted by the Court of Appeal had been correct, and that this remedied the failure to place the material before the trial judge.

In cases where, as here, the defence is that it was someone else who committed the offence, all the accused is expected to do is raise a reasonable doubt that that, indeed, might be so. Where the accused says he does not know who the offender was, it may be difficult for him to point to someone else as the likely suspect. Where the authorities have suspected someone else, but they later decide that, no, that other person was not involved, the accused could at least get from that a pointer about to whom to look for a reasonable doubt. An investigator might look into it for the defence, and find reason to suspect the other person. Here, however, the role of investigating this lead was undertaken by the security services, and they concluded that it was an unwarranted suspicion.

Are the security services an adequate substitute for an investigator selected by the defence? In the circumstances of this case, it was probably safe to assume that the security services would have no reason not to pursue anyone whom it considered there were good grounds to suspect. Once the security services could be trusted with this impartiality, the only issue would be their thoroughness in checking the reliability of their sources of information. That is a matter the Court could assess, without the need for full disclosure of the confidential information to the defence. The security services’ conclusion that someone else was not a likely suspect was something that the defence would be unlikely to be able to challenge. A reasonable doubt must, after all, be grounded in reality, and not be merely fanciful.

Hearsay confessions

A particularly tricky problem in evidence law is how to deal with the admissibility of hearsay confessions. These occur when a witness for the defence wishes to say that someone else, not available to give evidence, confessed to the crime with which the accused is charged. Here is a draft paper discussing a New Zealand Court of Appeal decision on this topic.

Hidden badness

An attack by an accused on the character of a prosecution witness, especially a complainant, may result in the court being informed of the accused’s bad character. In DS v HM Advocate [2007] UKPC D1 (22 May 2007) the accused challenged the validity of Scottish legislation to this effect, on the basis that it infringed his right to a fair trial.

Lord Hope noted that the accused’s right to a fair trial is absolute:

“17. … The Convention right that the appellant invokes is his right to a fair trial. This was described in Salabiaku v France (1988) 13 EHRR 379, para 28, as a fundamental principle of law. In Doorson v The Netherlands (1996) 22 EHRR 330, 358, para 67 the Court said that its task was to ascertain whether the proceedings as a whole were fair. In Dyer v Watson, 2002 SC (PC) 89, 113, I drew attention to the fact that a distinction must be made between those rights which are said by the Convention to be absolute and unqualified and those which are expressly qualified by provisions which permit them to be interfered with in certain circumstances. I said that the overriding right guaranteed by article 6(1) was a fundamental right which did not admit of any balancing exercise, and that the public interest could never be invoked to deny that right to anybody in any circumstances: see also Montgomery v HM Advocate, 2001 SC (PC) 1, pp 27E, 29F-G; Brown v Stott, 2001 SC (PC) 43, pp 60B 74B [also reported as Procurator Fiscal v Brown (Scotland) [2000] UKPC D3]. The fundamental nature of the right to a fair trial has been stressed repeatedly in subsequent cases both in the Judicial Committee and in the House of Lords: R v Forbes [2001] 1 AC 473, para 24; Porter v Magill [2002] 2 AC 357, para 87; Millar v Dickson, 2002 SC (PC) 30, para 52; Mills v HM Advocate, 2003 SC (PC) 1, para 12; Sinclair v HM Advocate, 2005 SC (PC) 28, para 37. The law-making powers of the Scottish Parliament do not permit it to pass laws which will deny an accused a fair trial.”

Under the relevant legislation, in the circumstances that arose in this case, it was for the accused to show that “the interests of justice” favoured non-disclosure of his prior conviction. As to this phrase, Lord Hope said:

“49. … the words "the interests of justice" should be read, in this context, as directed primarily to the accused's right to a fair trial. This issue should be addressed in the light of what I have already said about the reasons why previous convictions for sexual offences or an offence in which a substantial sexual element was present may be relevant. The objection should be tested in the light of what use may properly be made of the conviction with regard to the accused's propensity to commit the offence charged, and what use may properly be made of it with regard to his credibility if he were to give evidence or has made exculpatory statements before trial. The test needs to be exacting in proceedings on indictment, in view of the risk that the jury may attach a significance to the conviction which, due to its age or other factors, it cannot properly bear.”

Whether juries are likely to treat the accused’s previous convictions correctly is a matter that we have seen commented on in R v Becouarn [2005] UKHL 55 (blogged 5 August 2005), not cited in the present case, where a jury study was quoted. However, in DS the Privy Council took a robust approach to this point. Lord Rodger, with whom all the other members of the Board agreed, said:

“85 … [the section allowing the accused’s conviction to be revealed, once he had attacked the complainant’s character] would provide an element of parity or balance in the treatment of the two sides by giving the jury an opportunity, when considering their verdict, to have regard also to what the accused had done on other occasions. The balance between the two sides is not perfect: it is tilted in the accused's favour since the jury only get to know about his previous criminal sexual misbehaviour. Any other behaviour or any other aspects of his character or any condition or predisposition are not revealed.”

Baroness Hale also upheld the fairness of the legislative scheme:

“94 There is nothing intrinsically unfair in a court hearing evidence of an accused person's character and conduct, provided that it is relevant to something which the court has to decide. Our historic reluctance to trust the jury with this information arises from the fear that they may give it more weight than it deserves or regard it as proving that which it does not prove. The answer to that does not have to be to withhold it from them; they can be given clear and careful directions about how to use it.”

Lord Brown summarised the accused’s argument and answered it as follows:

“102 … having won the initial ruling that the evidence [of the complainant’s bad character] is required to enable him to defend himself properly, he submits that no inhibition should thereafter be put in his path; he should not be subjected to the pressure of having to choose between two evils: either forgoing the opportunity to advance his defence properly or allowing the jury to learn of his previous convictions of which otherwise they would have remained in ignorance.

“103 Plausible and beguiling though at first blush this argument may appear, it is to my mind founded upon a central fallacy. The long and the short of it is that the accused has no fundamental right to keep his past convictions from the jury. There is nothing intrinsically unfair or inappropriate in putting these into evidence and, indeed, in doing so not merely on the limited basis that they go only to the accused's credibility (the fiction which to my mind disfigured the administration of criminal justice in England and Wales for far too long, now at last ended by the Criminal Justice Act 2003—see particularly sections 101(1)(d) and 103(1)(a)) but on the wider ground that they bear also on the accused's propensity to commit offences of the kind with which he is charged.”

Great reliance is placed on the ability of the trial judge correctly to warn the jury about the use to which they may put the evidence of the accused’s bad prior conduct, and great reliance is also placed on the ability of juries to follow such directions. This latter reliance appears to be misplaced in the light of the jury study cited in Becouarn, above. Should decisions about the fairness of trials rest on legal assumptions that may not be justified in fact?

Howse of discontent

Another case (in addition to Bain, also decided on 10 May 2007, see blog below) in which a Court of Appeal thought that the case against the accused was strong enough to make errors at trial insufficient to amount to a substantial miscarriage of justice, is Bernard v The State (Trinidad and Tobago) [2007] UKPC 34 (10 May 2007).

Here, the court had compelled the accused to be represented at his murder trial by an inexperienced lawyer, who had only been admitted to the bar three months previously. There had been a failure to disclose material facts to the defence, as well as an understandable failure to make the most of the available forensic techniques that a more experienced counsel (“an older hand” para 25) would have had at his disposal.

The Board cited Randall v The Queen [2002] UKPC 19, [2002] 1 WLR 2237, 2251 as authority for the approach to take on the question whether errors at trial have resulted in unfairness, quoting para 28 of Randall:

“While reference has been made above to some of the rules which should be observed in a well-conducted trial to safeguard the fairness of the proceedings, it is not every departure from good practice which renders a trial unfair. Inevitably, in the course of a long trial, things are done or said which should not be done or said. Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated and particularly if, where appropriate, they are the subject of a clear judicial direction. It would emasculate the trial process, and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed that was incapable of attainment in practice. But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.”

And added (para 29 of Bernard):

“There are statements in the Australian case of Wilde v The Queen (1988) 164 CLR 365 which, if taken out of context, could give support to a proposition that where the evidence against a defendant is overwhelmingly strong, the defects in procedure required for setting the verdict aside on the ground that the trial was unfair have to be such that there has scarcely been a trial at all. The Board applied the decision in Wilde v The Queen in the New Zealand appeal of Howse v The Queen [2005] UKPC 30, but it is not to be taken to have approved this formulation as the universally necessary criterion for proof of unfairness of a trial. In the context of the incorrect admission of evidence, the strength of the rest of the evidence will be material, but in a case of procedural unfairness their Lordships would regard the statement which they have quoted from Randall v The Queen as the appropriate approach. Determination of such an issue involves weighing the seriousness of the irregularities. If the defects were relatively minor, the trial may still be regarded as fair. Conversely, if they were sufficiently serious it cannot be accepted as fair, no matter how strong the evidence of guilt. In such a case it may also be said that the defendant was deprived of his constitutional right of due process.”

The distinction made here is between cases, like Howse, where the error at trial had been the wrongful admission of evidence, and cases like the present appeal, where the question was whether the error had involved procedural unfairness.

Whether this is a clear distinction remains to be seen. The wrongful admission of evidence could result in the fact-decider undertaking a biased task, so creating procedural unfairness, just as failure to disclose material facts to the defence, or failure to cast the doubt on the prosecution case that could have been cast, also gives rise to procedural unfairness.

Perhaps the Privy Council is, in Bernard, tactfully disagreeing with the contentious decision in Howse, where the Board was split 3-2. This, however, may be doubted, because this judgment was delivered by Lord Carswell, who had delivered the majority judgment in Howse. However, a reader of these decisions who applies the rule-of-thumb “Lord Bingham is never wrong” will note his absence from Howse and his presence in Bernard, in which only one judgment was delivered. Did Lord Bingham prompt this subtle qualification of the application of Wilde?

Justices Marple, Holmes and Poirot

Stating the law is one thing, applying it another. An appellate court may be able correctly to state the way it should approach the question of whether there has been a substantial miscarriage of justice in the case before it, yet, when it comes to deciding the appeal, it may contravene its own statement of the law.

This fundamental error occurred in the New Zealand Court of Appeal’s decision which yesterday was overturned by the Privy Council: Bain v R (New Zealand) [2007] UKPC (10 May 2007).

The law as to how the question of substantial miscarriage of justice should be determined was set out by the Court, and quoted by the Board (para 35), as follows:

"The court went on, in paragraph 24 of its judgment, to observe that when fresh evidence is admitted, it must move on to the next stage of the enquiry
“which is whether its existence demonstrates there has been a miscarriage of justice in the sense of there being a real risk that a miscarriage of justice has occurred on account of the new evidence not being before the jury which convicted the appellant. Such a real risk will exist if, as it is put in the cases, the new evidence, when considered alongside the evidence given at the trial, might reasonably have led the jury to return a verdict of not guilty.”

“The court pointed out (paragraph 25) that its concern is whether the jury, not the court, would nevertheless have convicted had the posited miscarriage of justice not occurred. This was consistent with
“the fundamental point that the ultimate issue whether an accused person is guilty or not guilty is for a jury, not for Judges. The appellate court acts as a screen through which the further evidence must pass. It is not the ultimate arbiter of guilt, save in the practical sense that this is the effect of applying the proviso, or ruling that the new evidence could not reasonably have affected the result.”"

It was surprising, after such a precise statement of the appellate court’s role, that the Court of Appeal should then have embarked on a detailed analysis of the evidence and come to its own determination of the appellant’s guilt. As I observed in an article mentioning this case, “Proof, fairness and the proviso” [2006] NZLJ 156, 158 (copy available on this link): “ … we are left to wonder whether a jury would have reached the same conclusion at a new trial.”

The Privy Council held that only a jury could assess the impact of the fresh evidence that the defence had obtained. The Court of Appeal’s reasons for concluding that the appellant was guilty were based on assumptions and matters that had not been raised at trial. As to these (para 115):

“…The Board does not consider it necessary to review these points in detail, for three reasons. First, the issue of guilt is one for a properly informed and directed jury, not for an appellate court. Secondly, the issue is not whether there is or was evidence on which a jury could reasonably convict but whether there is or was evidence on which it might reasonably decline to do so. And, thirdly, a fair trial ordinarily requires that the jury hears the evidence it ought to hear before returning its verdict, and should not act on evidence which is, or may be, false or misleading. Even a guilty defendant is entitled to such a trial.”

And added (para 119):

“ … Where issues have not been fully and fairly considered by a trial jury, determination of guilt is not the task of appellate courts.”

The conclusion was that there had been a substantial miscarriage of justice (which became apparent only after the trial, when the fresh evidence came to light), that the convictions should be quashed and a retrial ordered.

The lesson here is that procedural fairness is of fundamental importance, and an improper focus on the apparent guilt of the appellant must not cause the appellate court to take over the role which is properly that of a jury.

As evidence of the temptation to overlook trial fairness and to focus on apparent guilt, we need only recall that in last year’s report by a retired High Court Judge on the likely occurrence of miscarriages of justice in trials in New Zealand, no criticism was made of the upholding of the Bain convictions.

Disorderly rights

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.