Depriving an offender of the benefit he obtained from his offending was the subject of three related House of Lords decisions this week: R v May [2008] UKHL 28, R v Green [2008] UKHL 30, and Crown Prosecution Service v Jennings [2008] UKHL 29 (all 14 May 2008).
The leading decision is May, where broad principles were stated for the interpretation of the relevant legislation, the Proceeds of Crime Act 2002[UK] (para 48):
“(1) The legislation is intended to deprive defendants of the benefit they have gained from relevant criminal conduct, whether or not they have retained such benefit, within the limits of their available means. It does not provide for confiscation in the sense understood by schoolchildren and others, but nor does it operate by way of fine. The benefit gained is the total value of the property or advantage obtained, not the defendant's net profit after deduction of expenses or any amounts payable to co-conspirators.
“(2) The court should proceed by asking the three questions posed above: (i) Has the defendant (D) benefited from relevant criminal conduct? (ii) If so, what is the value of the benefit D has so obtained? (iii) What sum is recoverable from D? Where issues of criminal life style arise the questions must be modified. These are separate questions calling for separate answers, and the questions and answers must not be elided.
“(3) In addressing these questions the court must first establish the facts as best it can on the material available, relying as appropriate on the statutory assumptions. In very many cases the factual findings made will be decisive.
“(4) In addressing the questions the court should focus very closely on the language of the statutory provision in question in the context of the statute and in the light of any statutory definition. The language used is not arcane or obscure and any judicial gloss or exegesis should be viewed with caution. Guidance should ordinarily be sought in the statutory language rather than in the proliferating case law.
“(5) In determining, under the Proceeds of Crime Act 2002, whether D has obtained property or a pecuniary advantage and, if so, the value of any property or advantage so obtained, the court should (subject to any relevant statutory definition) apply ordinary common law principles to the facts as found. The exercise of this jurisdiction involves no departure from familiar rules governing entitlement and ownership. While the answering of the third question calls for inquiry into the financial resources of D at the date of the determination, the answering of the first two questions plainly calls for a historical inquiry into past transactions.
“(6) D ordinarily obtains property if in law he owns it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else. He ordinarily obtains a pecuniary advantage if (among other things) he evades a liability to which he is personally subject. Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property. It may be otherwise with money launderers.”
The results were that the Crown may obtain orders for confiscation of benefits that exceed the total benefits derived by the offenders from the crime they jointly committed. This is because each offender may – on appropriate facts - be treated as having joint ownership of the proceeds. To “benefit” from crime means to obtain property so as to own it, whether alone or jointly, which ordinarily connotes a power of disposition or control.
In submissions in Green there was some reference to what was argued to be a different approach in Australia, Canada and New Zealand. There was no decision on whether there was indeed such a difference (I suggest not, in NZ), but the House of Lords held that even if there were a difference, legislation in other countries would not assist in interpreting the meaning of the statute in question.
Friday, May 16, 2008
On being unable to communicate with one's self
Perceptions of trial fairness may depend on what is known about the accused’s mental condition. An appellate court that does not know that the accused was suffering, while on trial, from a mental disorder that made him incapable of adequately communicating with his counsel, may assess the record of the trial and conclude that the trial was fair. Another appellate court, armed with fuller information about the accused’s mental condition, may assess the same trial as having been unfair. Such unfairness would arise, not from the course of the trial, but from the unfairness of making a person under mental disability stand trial.
This occurred in Cumming v R [2008] NZSC 39 (15 May 2008). The Supreme Court concluded (para 21):
“It is very clear to us that by reason of mental disorder Mr Cumming was under a disability or, in terms of the present legislation, unfit to stand trial. For that reason there has been a substantial miscarriage of justice. The appeal must therefore be allowed.”
The Court did not refer to, and in particular did not criticise, the Court of Appeal’s assessment of the trial as being fair: [2005] NZCA 260. That Court had summarised its view of the trial as (para 67):
“The reality of this case is demonstrated by the defence the appellant did conduct at the trial. He did understand what he had to do and he put his defence in a way which left the jury able to make fair assessments of the complainant as a witness, and also of the appellant. The transcript shows that the appellant’s conduct of his defence had elements of confusion and other difficulties not unusual in litigants who represent themselves but no more than that. There was a fair presentation of his defence to the jury so that no considerations arise of the kind addressed by the Supreme Court in Sungsuwan v R [2005] NZSC 57 at [48], [58] and [65] to [68].”
The accused had represented himself at trial, having dispensed with the services of a series of counsel. A psychiatric report, available to the Supreme Court but not to the courts below, concluded that
“As Mr Cumming was acting as his own counsel the impact of his mental disorder was even greater upon his functioning in court. Conducting a delusionally based defence and with obvious impairments in his ability to process information, make appropriate inquiries and respond to what was happening, Mr Cumming, as his own counsel, could be said to be unable to communicate adequately with himself. Essentially both defendant and counsel were mentally disordered in this situation.”
This case highlights the need for accurate psychiatric diagnoses at an early stage, and the need for review of those as a trial proceeds. The difficulty is that a person who is advancing, albeit in a confused and irritating way, a coherent defence, may easily be misdiagnosed as being fit to stand trial. A coherent defence may nevertheless be the product of delusion and mental disorder. This case establishes that a person on trial has the right to present a defence that is not the result of mental disorder, regardless of how rational it may appear to be.
This occurred in Cumming v R [2008] NZSC 39 (15 May 2008). The Supreme Court concluded (para 21):
“It is very clear to us that by reason of mental disorder Mr Cumming was under a disability or, in terms of the present legislation, unfit to stand trial. For that reason there has been a substantial miscarriage of justice. The appeal must therefore be allowed.”
The Court did not refer to, and in particular did not criticise, the Court of Appeal’s assessment of the trial as being fair: [2005] NZCA 260. That Court had summarised its view of the trial as (para 67):
“The reality of this case is demonstrated by the defence the appellant did conduct at the trial. He did understand what he had to do and he put his defence in a way which left the jury able to make fair assessments of the complainant as a witness, and also of the appellant. The transcript shows that the appellant’s conduct of his defence had elements of confusion and other difficulties not unusual in litigants who represent themselves but no more than that. There was a fair presentation of his defence to the jury so that no considerations arise of the kind addressed by the Supreme Court in Sungsuwan v R [2005] NZSC 57 at [48], [58] and [65] to [68].”
The accused had represented himself at trial, having dispensed with the services of a series of counsel. A psychiatric report, available to the Supreme Court but not to the courts below, concluded that
“As Mr Cumming was acting as his own counsel the impact of his mental disorder was even greater upon his functioning in court. Conducting a delusionally based defence and with obvious impairments in his ability to process information, make appropriate inquiries and respond to what was happening, Mr Cumming, as his own counsel, could be said to be unable to communicate adequately with himself. Essentially both defendant and counsel were mentally disordered in this situation.”
This case highlights the need for accurate psychiatric diagnoses at an early stage, and the need for review of those as a trial proceeds. The difficulty is that a person who is advancing, albeit in a confused and irritating way, a coherent defence, may easily be misdiagnosed as being fit to stand trial. A coherent defence may nevertheless be the product of delusion and mental disorder. This case establishes that a person on trial has the right to present a defence that is not the result of mental disorder, regardless of how rational it may appear to be.
Wednesday, May 14, 2008
Facts, fairness and the proviso
Once again the application of the proviso has come under the scrutiny of the High Court of Australia: Gassy v R [2008] HCA 18 (14 May 2008).
Previous efforts at clarification of when a miscarriage may be regarded as substantial have been noted here: see in particular Weiss v R (blogged 16 January 2006) and AK v Western Australia (blogged 27 March 2008), and there are others (see Index).
Before the appellate court can apply the proviso, and dismiss the appeal against conviction, it must be satisfied of two things: that the evidence properly admissible against the accused established guilt beyond reasonable doubt, and, if it did, that the trial was fair.
In Gassy, the three majority Judges differed in the routes they took to conclude that the proviso could not be applied here. Gummow and Hayne JJ jointly held that the evidence could not be regarded by an appellate as establishing guilt beyond reasonable doubt. Kirby J held that, although the evidence could well be held to establish guilt to that standard (I reflect here his Honour’s “cusp” remark, mentioned below), the trial was not fair.
Two miscarriages of justice were relied on by the appellant: the first, held not to be relevant because its result favoured the appellant, was refusal of the trial judge to permit the accused, who at all other times represented himself on the charge of murder, to have legal representation for the limited purpose of conducting a voir dire. The second was the “assistance” that the judge endeavoured to give the jury in overcoming an impasse after a lengthy period of deliberation. The supplementary directions lacked balance because they did not adequately mention the defence perspective on the relevant issues.
Interestingly, Gummow and Hayne JJ held that, although this supplementary direction was an error, the question of whether the evidence could be said on appeal to have proved guilt beyond reasonable doubt still had to be considered. This approach, reflected in para 31, is one of avoiding classifying some errors as “fundamental” (para 33). It was, on this view, necessary to examine what effect the error could have had on the outcome of the trial (para 34). These Judges, therefore, were not holding that the misdirection itself was unfair. They noted that the jury had, before the impugned supplementary directions, deliberated for more than a day and a half, and that therefore an appellate court would have to be careful before concluding that guilt had been proved beyond reasonable doubt (para 35). The inferences that the prosecution sought to persuade the jury to draw were not compelled by the evidence (para 37), and there should be a retrial.
Kirby J, agreeing in the result, reasoned that the evidence of guilt was (virtually) conclusive, but this was a case of trial unfairness and therefore the proviso could not be applied. He agreed (para 46-47) with Gummow and Hayne JJ that there had been miscarriages of justice in both the voir dire point (albeit that this was not determinative) and the supplementary direction point. But he held that the supplementary direction lacked impartiality (para 51) and that the question of the application of the proviso therefore arose (para 57). He did not consider that the miscarriage of justice here was one which involved “the presuppositions of a criminal trial” (para 61) - but at this point one must ask whether use of this classification is appropriate, notwithstanding the authority for it – and he proceeded to evaluate the strength of the evidence (para 69-91) and concluded that this case was “at the cusp”: a very powerful prosecution case. This should be read bearing in mind that, a retrial being ordered, it would be inappropriate for the appellate court to actually say it thought guilt had been established beyond reasonable doubt. However, it was clear form the events at trial that the impact of the supplementary direction on the jury was significant, as they returned the guilty verdict shortly afterwards.
Kirby J does not go so far as to say the proof of guilt was conclusive, and he acknowledges (para 99) that the jury had to make a number of factual judgments. The Judge’s assistance in the supplementary direction had, therefore, to be impartial and should have referred to the defence perspective more than it did. Kirby J summarised his approach by saying (para 105), after referring to the minority approach of Crennan and Kiefel JJ:
“…It is enough for me to say that I place the highest value on the principle of manifest judicial impartiality and neutrality. Those qualities were of cardinal importance given the impasse that the applicant's trial had reached. In the end, this case stands for the principle that, particularly in circumstances of jury disagreement after a long trial, the trial judge must balance "ways forward" that lead to conviction with a reminder of those that lead to the opposite outcome.”
But in remarks that indicate he considered the prosecution case strong enough to support the conviction, Kirby J concluded (para 106-107) by referring to dicta in Weiss and AK concerning fundamental trial defects (as found here) which prevent application of the proviso notwithstanding that the appellate court may consider guilt to have been proved.
It is unfortunate that the majority Judges differed in their approaches to the application of the proviso here. Gummow and Hayne JJ obscure the primary importance of the right to a fair trial by their treatment of the strength of the prosecution case, while Kirby J emphasises it.
Previous efforts at clarification of when a miscarriage may be regarded as substantial have been noted here: see in particular Weiss v R (blogged 16 January 2006) and AK v Western Australia (blogged 27 March 2008), and there are others (see Index).
Before the appellate court can apply the proviso, and dismiss the appeal against conviction, it must be satisfied of two things: that the evidence properly admissible against the accused established guilt beyond reasonable doubt, and, if it did, that the trial was fair.
In Gassy, the three majority Judges differed in the routes they took to conclude that the proviso could not be applied here. Gummow and Hayne JJ jointly held that the evidence could not be regarded by an appellate as establishing guilt beyond reasonable doubt. Kirby J held that, although the evidence could well be held to establish guilt to that standard (I reflect here his Honour’s “cusp” remark, mentioned below), the trial was not fair.
Two miscarriages of justice were relied on by the appellant: the first, held not to be relevant because its result favoured the appellant, was refusal of the trial judge to permit the accused, who at all other times represented himself on the charge of murder, to have legal representation for the limited purpose of conducting a voir dire. The second was the “assistance” that the judge endeavoured to give the jury in overcoming an impasse after a lengthy period of deliberation. The supplementary directions lacked balance because they did not adequately mention the defence perspective on the relevant issues.
Interestingly, Gummow and Hayne JJ held that, although this supplementary direction was an error, the question of whether the evidence could be said on appeal to have proved guilt beyond reasonable doubt still had to be considered. This approach, reflected in para 31, is one of avoiding classifying some errors as “fundamental” (para 33). It was, on this view, necessary to examine what effect the error could have had on the outcome of the trial (para 34). These Judges, therefore, were not holding that the misdirection itself was unfair. They noted that the jury had, before the impugned supplementary directions, deliberated for more than a day and a half, and that therefore an appellate court would have to be careful before concluding that guilt had been proved beyond reasonable doubt (para 35). The inferences that the prosecution sought to persuade the jury to draw were not compelled by the evidence (para 37), and there should be a retrial.
Kirby J, agreeing in the result, reasoned that the evidence of guilt was (virtually) conclusive, but this was a case of trial unfairness and therefore the proviso could not be applied. He agreed (para 46-47) with Gummow and Hayne JJ that there had been miscarriages of justice in both the voir dire point (albeit that this was not determinative) and the supplementary direction point. But he held that the supplementary direction lacked impartiality (para 51) and that the question of the application of the proviso therefore arose (para 57). He did not consider that the miscarriage of justice here was one which involved “the presuppositions of a criminal trial” (para 61) - but at this point one must ask whether use of this classification is appropriate, notwithstanding the authority for it – and he proceeded to evaluate the strength of the evidence (para 69-91) and concluded that this case was “at the cusp”: a very powerful prosecution case. This should be read bearing in mind that, a retrial being ordered, it would be inappropriate for the appellate court to actually say it thought guilt had been established beyond reasonable doubt. However, it was clear form the events at trial that the impact of the supplementary direction on the jury was significant, as they returned the guilty verdict shortly afterwards.
Kirby J does not go so far as to say the proof of guilt was conclusive, and he acknowledges (para 99) that the jury had to make a number of factual judgments. The Judge’s assistance in the supplementary direction had, therefore, to be impartial and should have referred to the defence perspective more than it did. Kirby J summarised his approach by saying (para 105), after referring to the minority approach of Crennan and Kiefel JJ:
“…It is enough for me to say that I place the highest value on the principle of manifest judicial impartiality and neutrality. Those qualities were of cardinal importance given the impasse that the applicant's trial had reached. In the end, this case stands for the principle that, particularly in circumstances of jury disagreement after a long trial, the trial judge must balance "ways forward" that lead to conviction with a reminder of those that lead to the opposite outcome.”
But in remarks that indicate he considered the prosecution case strong enough to support the conviction, Kirby J concluded (para 106-107) by referring to dicta in Weiss and AK concerning fundamental trial defects (as found here) which prevent application of the proviso notwithstanding that the appellate court may consider guilt to have been proved.
It is unfortunate that the majority Judges differed in their approaches to the application of the proviso here. Gummow and Hayne JJ obscure the primary importance of the right to a fair trial by their treatment of the strength of the prosecution case, while Kirby J emphasises it.
Tuesday, May 13, 2008
Fifteen years of illegal trials?
For fifteen or so years the statutory procedure for empanelling juries in the British Virgin Islands has not been followed. In R v Clarke (blogged here 7 February 2008) a trial was held to be a nullity because an indictment had not been correctly signed. Was the British Virgin Islands problem more profound?
The Privy Council addressed this in DPP (Virgin Islands) v Penn (British Virgin Islands) [2008] UKPC 29 (8 May 2008).
Here, the Registrar of the Court had not maintained a list from which an array of jurors was summoned for jury service. From this array the trial jury (of nine) would be impanelled. Instead of maintaining the jury list, the list of registered voters was used. The qualifications for jurors and electors differed.
Constitutional lawyers will be thinking this was an opportunity for application of the “de facto doctrine”, or, more precisely, the doctrine which holds valid, in certain situations, the acts of officials who have not been lawfully appointed to office. This doctrine is particularly useful in revolutions and coups, where an illegal government purports to appoint officials to carry on the day to day business of the state. Although it was not necessary to apply this doctrine here, the Board did make reference to it in paras 22-23.
No, here the solution was arrived at by reasoning consistent with that used in Clarke: if the legislative intent was not that the consequences of a breach of the enacted procedure should be a nullity, then, as long as everything was done in good faith, the proceedings would not be invalid on that score:
“18. The modern tendency is no longer to seek to identify or distinguish between mandatory and directory acts, but the Board's judgment in [Montreal Street Railway Company v. Normandin [1917] AC 170] … underlines the need for careful examination of the relevant legislation, to ascertain the purpose of statutory procedures for the impanelling of an array and whether an intention should be attributed to the legislature that non-compliance with such procedures should render a jury trial a nullity, irrespective whether it may have occasioned potential unfairness or prejudice. The Board recognises the seriousness of a criminal charge and the particular vigilance that the courts will exert to maintain the fairness and integrity of criminal proceedings. But the Board considers that there is scope for the reasoning in the Montreal Railway case in a criminal context.”
These considerations come into play once there has been a trial at which no objection to the procedure in question was made. Had such an objection been made at trial, the judge may well have decided to quash the proceedings (para 33). But, where there is no reason to think that there had not been a fair trial, quashing would only be appropriate if that was the clear intention of the legislature.
Here, the legislation indicated a flexible approach was available to objections to the array at trial: s 24 of the Jury Act 1914 provides
“24. Every application, made at a sitting of the High Court, for the quashing of an array, shall be heard and determined by the presiding judge, and no array shall be quashed on the ground of any formal defect, or of any breach of any of the provisions of this Act, unless the presiding Judge is satisfied that it is expedient, on the merits and in the interests of justice, that the array should be quashed.”
The Board reasoned, para 35:
“Section 24 is not itself applicable on an appeal. It deals with applications to the presiding judge before whom the applicant is to be tried. But its flexible focus on the interests of justice assists to confirm the appropriate approach to the question which is in issue on the present appeal: whether the appellant's trial and conviction should be regarded as a nullity or set aside and a fresh trial ordered. There is no suggestion that the trial judge or jury were aware of the Registrar's default in his or her statutory duties. The Board does not accept that the Registrar's awareness of the default equates with awareness on the part of the judge or jury. There is no suggestion of any disadvantage or prejudice to the respondent by reason of the defects in process which occurred. Any jurors' register would have been very largely identical with the voters' list from which the array was in fact selected. There is no suggestion that the array was not taken from the voters' list in a manner which was comparably random to the way in which it should have been taken from a jurors' register. There is no suggestion that any of the nine jurors who eventually served at the trial did not meet the age and other qualifications in the Jury Act.”
The conclusion was that there was nothing in the legislative intent to require the trial that had occurred in these circumstances to be declared invalid.
The Privy Council addressed this in DPP (Virgin Islands) v Penn (British Virgin Islands) [2008] UKPC 29 (8 May 2008).
Here, the Registrar of the Court had not maintained a list from which an array of jurors was summoned for jury service. From this array the trial jury (of nine) would be impanelled. Instead of maintaining the jury list, the list of registered voters was used. The qualifications for jurors and electors differed.
Constitutional lawyers will be thinking this was an opportunity for application of the “de facto doctrine”, or, more precisely, the doctrine which holds valid, in certain situations, the acts of officials who have not been lawfully appointed to office. This doctrine is particularly useful in revolutions and coups, where an illegal government purports to appoint officials to carry on the day to day business of the state. Although it was not necessary to apply this doctrine here, the Board did make reference to it in paras 22-23.
No, here the solution was arrived at by reasoning consistent with that used in Clarke: if the legislative intent was not that the consequences of a breach of the enacted procedure should be a nullity, then, as long as everything was done in good faith, the proceedings would not be invalid on that score:
“18. The modern tendency is no longer to seek to identify or distinguish between mandatory and directory acts, but the Board's judgment in [Montreal Street Railway Company v. Normandin [1917] AC 170] … underlines the need for careful examination of the relevant legislation, to ascertain the purpose of statutory procedures for the impanelling of an array and whether an intention should be attributed to the legislature that non-compliance with such procedures should render a jury trial a nullity, irrespective whether it may have occasioned potential unfairness or prejudice. The Board recognises the seriousness of a criminal charge and the particular vigilance that the courts will exert to maintain the fairness and integrity of criminal proceedings. But the Board considers that there is scope for the reasoning in the Montreal Railway case in a criminal context.”
These considerations come into play once there has been a trial at which no objection to the procedure in question was made. Had such an objection been made at trial, the judge may well have decided to quash the proceedings (para 33). But, where there is no reason to think that there had not been a fair trial, quashing would only be appropriate if that was the clear intention of the legislature.
Here, the legislation indicated a flexible approach was available to objections to the array at trial: s 24 of the Jury Act 1914 provides
“24. Every application, made at a sitting of the High Court, for the quashing of an array, shall be heard and determined by the presiding judge, and no array shall be quashed on the ground of any formal defect, or of any breach of any of the provisions of this Act, unless the presiding Judge is satisfied that it is expedient, on the merits and in the interests of justice, that the array should be quashed.”
The Board reasoned, para 35:
“Section 24 is not itself applicable on an appeal. It deals with applications to the presiding judge before whom the applicant is to be tried. But its flexible focus on the interests of justice assists to confirm the appropriate approach to the question which is in issue on the present appeal: whether the appellant's trial and conviction should be regarded as a nullity or set aside and a fresh trial ordered. There is no suggestion that the trial judge or jury were aware of the Registrar's default in his or her statutory duties. The Board does not accept that the Registrar's awareness of the default equates with awareness on the part of the judge or jury. There is no suggestion of any disadvantage or prejudice to the respondent by reason of the defects in process which occurred. Any jurors' register would have been very largely identical with the voters' list from which the array was in fact selected. There is no suggestion that the array was not taken from the voters' list in a manner which was comparably random to the way in which it should have been taken from a jurors' register. There is no suggestion that any of the nine jurors who eventually served at the trial did not meet the age and other qualifications in the Jury Act.”
The conclusion was that there was nothing in the legislative intent to require the trial that had occurred in these circumstances to be declared invalid.
Controlling the back-seat driver
Who makes the important technical decisions concerning the way a defence is to be run, the accused or counsel representing him?
In Gonzales v United States [2008] USSC No 06-11612 (12 May 2008) the plurality opinion, delivered by Kennedy J, contains the following observations (p 9):
“Giving the attorney control of trial management matters is a practical necessity. ‘The adversary process could not function effectively if every tactical decision required client approval.’ Taylor v. Illinois, 484 U. S. 400, 418 (1988). The presentation of a criminal defense can be a mystifying process even for well-informed laypersons. This is one of the reasons for the right to counsel. See Powell v. Alabama, 287 U. S. 45, 68–69 (1932); ABA Standards for Criminal Justice, Defense Function 4–5.2, Commentary, p. 202 (3d ed. 1993) (‘Many of the rights of an accused, including constitutional rights, are such that only trained experts can comprehend their full significance, and an explanation to any but the most sophisticated client would be futile’). Numerous choices affecting conduct of the trial, including the objections to make, the witnesses to call, and the arguments to advance, depend not only upon what is permissible under the rules of evidence and procedure but also upon tactical considerations of the moment and the larger strategic plan for the trial. These matters can be difficult to explain to a layperson; and to require in all instances that they be approved by the client could risk compromising the efficiencies and fairness that the trial process is designed to promote. In exercising professional judgment, moreover, the attorney draws upon the expertise and experience that members of the bar should bring to the trial process. In most instances the attorney will have a better understanding of the procedural choices than the client; or at least the law should so assume. See Jones v. Barnes, 463 U. S. 745, 751 (1983); see also Tollett v. Henderson, 411 U. S. 258, 267–268 (1973); cf. ABA Standards, supra, at 202 (‘Every experienced advocate can recall the disconcerting experience of trying to conduct the examination of a witness or follow opposing arguments or the judge’s charge while the client ‘plucks at the attorney’s sleeve’ offering gratuitous suggestions’). To hold that every instance of waiver re quires the personal consent of the client himself or herself would be impractical.”
That case concerned the jury examination and selection procedure, but obviously these remarks are of general application.
There will be times when, as defence counsel, one realises that the client would have a much better chance if only his instructions were different. There is, importantly, an obligation to follow the client’s instructions and not to create a defence where none would otherwise have arisen. Failure to conduct a defence in accordance with instructions can give rise to a substantial miscarriage of justice eg R v Irwin [1987] 1 WLR 902; [1987] 2 All ER 1085.
In Adams on Criminal Law the position is summarised, at CA385.13, as:
“Counsel’s obligation to conduct the trial according to the accused’s instructions carries with it an obligation to take instructions where matters arise as to which counsel’s current instructions do not extend: R v Kerr 11/4/00, CA504/99. The requirement does not extend to investigating in detail all possible defences so as to obtain the “informed consent” of the accused to the running of some alternative to that most open on the facts: R v Nicholson 8/10/98, CA439/97. Nor need counsel canvass with the accused all possible options, including those which are tactically unsound or depend on matters solely within the accused’s own knowledge: R v Momo 23/7/02, CA115/02. Counsel is not required to inform the accused that he or she has the right to insist on a particular course of action being taken: R v Hookway [2007] NZCA 567, at paras 19 and 23.
“The accused will not be bound by concessions made without authority by counsel during sentencing: R v Xie [2007] NZCA 571, at paras 6 and 7.”
In Gonzales v United States [2008] USSC No 06-11612 (12 May 2008) the plurality opinion, delivered by Kennedy J, contains the following observations (p 9):
“Giving the attorney control of trial management matters is a practical necessity. ‘The adversary process could not function effectively if every tactical decision required client approval.’ Taylor v. Illinois, 484 U. S. 400, 418 (1988). The presentation of a criminal defense can be a mystifying process even for well-informed laypersons. This is one of the reasons for the right to counsel. See Powell v. Alabama, 287 U. S. 45, 68–69 (1932); ABA Standards for Criminal Justice, Defense Function 4–5.2, Commentary, p. 202 (3d ed. 1993) (‘Many of the rights of an accused, including constitutional rights, are such that only trained experts can comprehend their full significance, and an explanation to any but the most sophisticated client would be futile’). Numerous choices affecting conduct of the trial, including the objections to make, the witnesses to call, and the arguments to advance, depend not only upon what is permissible under the rules of evidence and procedure but also upon tactical considerations of the moment and the larger strategic plan for the trial. These matters can be difficult to explain to a layperson; and to require in all instances that they be approved by the client could risk compromising the efficiencies and fairness that the trial process is designed to promote. In exercising professional judgment, moreover, the attorney draws upon the expertise and experience that members of the bar should bring to the trial process. In most instances the attorney will have a better understanding of the procedural choices than the client; or at least the law should so assume. See Jones v. Barnes, 463 U. S. 745, 751 (1983); see also Tollett v. Henderson, 411 U. S. 258, 267–268 (1973); cf. ABA Standards, supra, at 202 (‘Every experienced advocate can recall the disconcerting experience of trying to conduct the examination of a witness or follow opposing arguments or the judge’s charge while the client ‘plucks at the attorney’s sleeve’ offering gratuitous suggestions’). To hold that every instance of waiver re quires the personal consent of the client himself or herself would be impractical.”
That case concerned the jury examination and selection procedure, but obviously these remarks are of general application.
There will be times when, as defence counsel, one realises that the client would have a much better chance if only his instructions were different. There is, importantly, an obligation to follow the client’s instructions and not to create a defence where none would otherwise have arisen. Failure to conduct a defence in accordance with instructions can give rise to a substantial miscarriage of justice eg R v Irwin [1987] 1 WLR 902; [1987] 2 All ER 1085.
In Adams on Criminal Law the position is summarised, at CA385.13, as:
“Counsel’s obligation to conduct the trial according to the accused’s instructions carries with it an obligation to take instructions where matters arise as to which counsel’s current instructions do not extend: R v Kerr 11/4/00, CA504/99. The requirement does not extend to investigating in detail all possible defences so as to obtain the “informed consent” of the accused to the running of some alternative to that most open on the facts: R v Nicholson 8/10/98, CA439/97. Nor need counsel canvass with the accused all possible options, including those which are tactically unsound or depend on matters solely within the accused’s own knowledge: R v Momo 23/7/02, CA115/02. Counsel is not required to inform the accused that he or she has the right to insist on a particular course of action being taken: R v Hookway [2007] NZCA 567, at paras 19 and 23.
“The accused will not be bound by concessions made without authority by counsel during sentencing: R v Xie [2007] NZCA 571, at paras 6 and 7.”
Saturday, May 10, 2008
"As I said before ..."
The most subtle and troublesome rules of the common law concern the use that may be made at trial of a witness’s own out of court statements. These may be consistent with the witness’s trial testimony, or inconsistent with it. In R v Dinardo [2008] SCC 24 (9 May 2008), an appeal which was allowed on other grounds, the trial had been by judge alone and the judge had misstated the law concerning the use that may be made of a complainant’s prior consistent statements.
The appeal was allowed on the grounds that insufficient reasons for his verdict were given by the judge, causing the accused to be deprived of his right to be told the reasons he was convicted (R v Gagnon, [2006] SCC 17), and of his right to meaningful appellate review (R v Sheppard, [2002] SCC 26).
However, it is the use of prior inconsistent statements that is of interest here. Such statements may be called “narrative evidence”. In a refreshingly unanimous decision, delivered by Charron J, the Court quoted, at para 37, McWilliams’ Canadian Criminal Evidence (4th ed. (loose-leaf)), at pp. 11-44 and 11-45:
“The challenge is to distinguish between “using narrative evidence for the impermissible purpose of ‘confirm[ing] the truthfulness of the sworn allegation’” and “using narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility”.
It is quite possible that there may be someone who is able to understand that distinction, but many more people will claim, falsely, to understand it. It is a distinction that has been dropped in New Zealand, where the law of evidence was recently reformed: Evidence Act 2006.
Under this reformed law, a witness’s out of court statements are not hearsay, and prior consistent statements are, in the limited circumstances in which they are admissible, evidence for the truth of their contents: s 35
In the USA (my thanks to Peter Tillers for this:) "Under the (US) Federal Rules of Evidence the default rule remains that out of court statements of testifying witnesses are hearsay. Under R 801(d)(1)(A) statements of testifying witness are "exempt" from the hearsay rule only if the statements were made under oath in certain proceedings. The other exemptions in subdivision (d) cover limited situations as well. This may not make sense but, for the moment, that's the law in the federal courts of the United States and in the courts of the most States of the United States. The Advisory Committee that drafted the Federal Rules of Evidence (in the late 1960s and early 1970s) proposed that all prior inconsistent statements of testifying witnesses be made exempt from the hearsay rule but Congress rejected this proposal by adding the words "and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition" to Rule 801(d)(1)(A). Even some prior consistent statements remain hearsay: some years back the US Supreme Court held that only those prior inconsistent statements that are offered to "rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive" are exempt from the hearsay rule and that prior consistent statements made after a motive for recent fabrication etc arose remain hearsay. See FRE 801(d)(1)(B). Moreover, even the Evidence Advisory Committee did not propose a blanket exemption for pretrial statements of testifying witness; as in current Rule 801, the remaining exemptions in Rule 801 pertain to (i) certain pretrial identifications and (ii) admissions (including vicarious admissions of various kinds) and statements of coconspirators. If these exemptions do not apply, the hearsay rule kicks in."
In Australia, where the uniform evidence provisions apply (Commonwealth, NSW, ACT, Tas, NI and soon, Vic), hearsay includes a witness’s out of court statements (eg, Evidence Act 1995 (C’th) s 59). However, as Jeremy Gans has reminded me, s 60 should render prior statements admissible as proof of their assertions; the High Court has complicated this a bit in Lee v R [1998] HCA 60, but broadly that’s it. In Queensland they are admissible for their truth too.
In the UK, pursuant to the Criminal Justice Act 2003, s 120(2), such prior statements are evidence of the truth of what they assert.
In 1991 the New Zealand Law Commission in Preliminary Paper No 15 Evidence Law: Hearsay, p 3 para 4 said of the distinction between using a prior statement as supporting credibility, and using it to determine what actually happened, “Explaining this to juries – and expecting them to follow the instruction – is one of the more difficult aspects of the hearsay rule.”
R v Dinardo illustrates that explaining the rule to judges – and expecting them to follow it - is difficult too.
The appeal was allowed on the grounds that insufficient reasons for his verdict were given by the judge, causing the accused to be deprived of his right to be told the reasons he was convicted (R v Gagnon, [2006] SCC 17), and of his right to meaningful appellate review (R v Sheppard, [2002] SCC 26).
However, it is the use of prior inconsistent statements that is of interest here. Such statements may be called “narrative evidence”. In a refreshingly unanimous decision, delivered by Charron J, the Court quoted, at para 37, McWilliams’ Canadian Criminal Evidence (4th ed. (loose-leaf)), at pp. 11-44 and 11-45:
“The challenge is to distinguish between “using narrative evidence for the impermissible purpose of ‘confirm[ing] the truthfulness of the sworn allegation’” and “using narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility”.
It is quite possible that there may be someone who is able to understand that distinction, but many more people will claim, falsely, to understand it. It is a distinction that has been dropped in New Zealand, where the law of evidence was recently reformed: Evidence Act 2006.
Under this reformed law, a witness’s out of court statements are not hearsay, and prior consistent statements are, in the limited circumstances in which they are admissible, evidence for the truth of their contents: s 35
In the USA (my thanks to Peter Tillers for this:) "Under the (US) Federal Rules of Evidence the default rule remains that out of court statements of testifying witnesses are hearsay. Under R 801(d)(1)(A) statements of testifying witness are "exempt" from the hearsay rule only if the statements were made under oath in certain proceedings. The other exemptions in subdivision (d) cover limited situations as well. This may not make sense but, for the moment, that's the law in the federal courts of the United States and in the courts of the most States of the United States. The Advisory Committee that drafted the Federal Rules of Evidence (in the late 1960s and early 1970s) proposed that all prior inconsistent statements of testifying witnesses be made exempt from the hearsay rule but Congress rejected this proposal by adding the words "and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition" to Rule 801(d)(1)(A). Even some prior consistent statements remain hearsay: some years back the US Supreme Court held that only those prior inconsistent statements that are offered to "rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive" are exempt from the hearsay rule and that prior consistent statements made after a motive for recent fabrication etc arose remain hearsay. See FRE 801(d)(1)(B). Moreover, even the Evidence Advisory Committee did not propose a blanket exemption for pretrial statements of testifying witness; as in current Rule 801, the remaining exemptions in Rule 801 pertain to (i) certain pretrial identifications and (ii) admissions (including vicarious admissions of various kinds) and statements of coconspirators. If these exemptions do not apply, the hearsay rule kicks in."
In Australia, where the uniform evidence provisions apply (Commonwealth, NSW, ACT, Tas, NI and soon, Vic), hearsay includes a witness’s out of court statements (eg, Evidence Act 1995 (C’th) s 59). However, as Jeremy Gans has reminded me, s 60 should render prior statements admissible as proof of their assertions; the High Court has complicated this a bit in Lee v R [1998] HCA 60, but broadly that’s it. In Queensland they are admissible for their truth too.
In the UK, pursuant to the Criminal Justice Act 2003, s 120(2), such prior statements are evidence of the truth of what they assert.
In 1991 the New Zealand Law Commission in Preliminary Paper No 15 Evidence Law: Hearsay, p 3 para 4 said of the distinction between using a prior statement as supporting credibility, and using it to determine what actually happened, “Explaining this to juries – and expecting them to follow the instruction – is one of the more difficult aspects of the hearsay rule.”
R v Dinardo illustrates that explaining the rule to judges – and expecting them to follow it - is difficult too.
Thursday, May 08, 2008
Tainted by inadmissible evidence?
If a judge tells a jury to ignore certain prosecution evidence, does that mean the wrongly admitted evidence can’t be used as grounds for appeal against conviction?
In Young v The State (Trinidad and Tobago) [2008] UKPC 27 (6 May 2008) there was a confession and a dock identification, both being obstacles to acquittals on charges of kidnapping and robbery. However, in directing the jury, the judge told the jury to ignore the dock identification. That left the confession, which, after an unsuccessful voir dire, the accused in evidence to the jury said was made as a result of threats from the police and in any event was not true, and he called an alibi witness.
The Court of Appeal dismissed the appeal, holding that the direction to the jury to ignore the dock identification made the giving of that evidence a dead issue. The Privy Council disagreed with that approach: it was necessary carefully to consider the way the jury might address the reliability of the confession. It was possible, at least in theory (but not, as it turned out, here), that the effect of the dock identification, even if it was ignored as one route to conviction, might influence the assessment of the reliability of the confession.
In this case, the Board held that the judge’s warning to the jury was sufficient to prevent that possible misuse of the evidence. This was not a situation where a Turnbull direction would have been appropriate as it would have been “confusing and potentially misleading” (para 20). The accused had not been deprived of a fair trial.
The Board cited, inter alia, Pipersburgh v R (Belize) (blogged here 26 February 2008), but did not cite Edwards v R (Jamaica) (blogged here 26 April 2006) in which strong comments against dock identification had been made. The position seems to be (para 17 of Young):
“…The trial judge must give sufficient warnings about the dangers of identification without a parade and the potential advantage of an inconclusive parade to a defendant, and direct the jury with care about the weakness of a dock identification. Much may depend on the circumstances of the case, the other evidence given and the run of the trial, so that it is not possible to lay down a universal direction applicable to all cases.”
In Young v The State (Trinidad and Tobago) [2008] UKPC 27 (6 May 2008) there was a confession and a dock identification, both being obstacles to acquittals on charges of kidnapping and robbery. However, in directing the jury, the judge told the jury to ignore the dock identification. That left the confession, which, after an unsuccessful voir dire, the accused in evidence to the jury said was made as a result of threats from the police and in any event was not true, and he called an alibi witness.
The Court of Appeal dismissed the appeal, holding that the direction to the jury to ignore the dock identification made the giving of that evidence a dead issue. The Privy Council disagreed with that approach: it was necessary carefully to consider the way the jury might address the reliability of the confession. It was possible, at least in theory (but not, as it turned out, here), that the effect of the dock identification, even if it was ignored as one route to conviction, might influence the assessment of the reliability of the confession.
In this case, the Board held that the judge’s warning to the jury was sufficient to prevent that possible misuse of the evidence. This was not a situation where a Turnbull direction would have been appropriate as it would have been “confusing and potentially misleading” (para 20). The accused had not been deprived of a fair trial.
The Board cited, inter alia, Pipersburgh v R (Belize) (blogged here 26 February 2008), but did not cite Edwards v R (Jamaica) (blogged here 26 April 2006) in which strong comments against dock identification had been made. The position seems to be (para 17 of Young):
“…The trial judge must give sufficient warnings about the dangers of identification without a parade and the potential advantage of an inconclusive parade to a defendant, and direct the jury with care about the weakness of a dock identification. Much may depend on the circumstances of the case, the other evidence given and the run of the trial, so that it is not possible to lay down a universal direction applicable to all cases.”
Monday, April 28, 2008
Gymnasium improprieties
Another case that got diverted to the irrelevant question of when the police can use sniffer dogs is R v AM [2008] SCC 19 (25 April 2008), in which the Court’s decision released the same day, R v Kang-Brown (see last blog), was applied.
Police officers carried out a search of a school with the permission of the headmaster who had given them a long-standing invitation to do so. There were no reasonable grounds to believe that drugs would be found on this particular day. The students were told by the headmaster to remain in their classrooms during the search. Using a sniffer dog called Chief, bags in the gymnasium were examined and Chief indicated that there were drugs in a particular backpack.
The admissibility of the evidence - variously described as 10 bags of marijuana (para22), 5 bags (para 109) or several bags (para 154), allegedly in possession for trafficking, and about 10 magic mushrooms, the subject of an allegation of possession simpliciter) – was determined by balancing various policy matters. These do not need to be discussed here, although they are of great public interest. It was held, in each of the courts in which this case was considered, that the evidence was inadmissible.
On the misconduct side of the balance, the only relevant point could be the absence of grounds for the search until the dog indicated the presence of the drugs. There is really no other impropriety: the police were on the premises at the invitation of the occupier who was undoubtedly in loco parentis, during school hours, in relation to the pupil whose bag was searched. There is no need for grounds to exist when a search is carried out by consent, so, on this view, there was no misconduct at all.
So, why did the SCC uphold the exclusion of the evidence? By finding that the Charter rights of every student in the school had been violated (para 15). And,
“62 The backpacks from which the odour emanated here belonged to various members of the student body including the accused. As with briefcases, purses and suitcases, backpacks are the repository of much that is personal, particularly for people who lead itinerant lifestyles during the day as in the case of students and travellers. No doubt ordinary businessmen and businesswomen riding along on public transit or going up and down on elevators in office towers would be outraged at any suggestion that the contents of their briefcases could randomly be inspected by the police without “reasonable suspicion” of illegality. Because of their role in the lives of students, backpacks objectively command a measure of privacy.
“63 As the accused did not testify, the question of whether or not he had a subjective expectation of privacy in his backpack must be inferred from the circumstances. While teenagers may have little expectation of privacy from the searching eyes and fingers of their parents, I think it obvious that they expect the contents of their backpacks not to be open to the random and speculative scrutiny of the police. This expectation is a reasonable one that society should support.”
These remarks are controversial, and they contrast with those of the dissenters, Deschamps and Rothstein JJ at 119, 128 – 140. The difference reflects how rights arguments can become too abstract to remain in touch with societal needs.
This is not to say that exclusion of different things found would always follow in cases that were, in other respects, similar. As Binnie J (delivering the judgment of himself and McLachlin CJ) observed at 37, the seriousness of the detected offending is a relevant consideration. Apparently, in this case, the risk posed to other pupils, and the likely consequences of detection to the offender, did not outweigh the harm that would be caused to the pupil by breach of what was held to be his privacy right in respect to the contents of his backpack.
Opinions will vary about whether the Court has successfully “bridged the gap between law and society” (as Aharon Barak puts the judicial role in “The Judge in a Democracy” (2006)) or whether it has increased that gap.
Police officers carried out a search of a school with the permission of the headmaster who had given them a long-standing invitation to do so. There were no reasonable grounds to believe that drugs would be found on this particular day. The students were told by the headmaster to remain in their classrooms during the search. Using a sniffer dog called Chief, bags in the gymnasium were examined and Chief indicated that there were drugs in a particular backpack.
The admissibility of the evidence - variously described as 10 bags of marijuana (para22), 5 bags (para 109) or several bags (para 154), allegedly in possession for trafficking, and about 10 magic mushrooms, the subject of an allegation of possession simpliciter) – was determined by balancing various policy matters. These do not need to be discussed here, although they are of great public interest. It was held, in each of the courts in which this case was considered, that the evidence was inadmissible.
On the misconduct side of the balance, the only relevant point could be the absence of grounds for the search until the dog indicated the presence of the drugs. There is really no other impropriety: the police were on the premises at the invitation of the occupier who was undoubtedly in loco parentis, during school hours, in relation to the pupil whose bag was searched. There is no need for grounds to exist when a search is carried out by consent, so, on this view, there was no misconduct at all.
So, why did the SCC uphold the exclusion of the evidence? By finding that the Charter rights of every student in the school had been violated (para 15). And,
“62 The backpacks from which the odour emanated here belonged to various members of the student body including the accused. As with briefcases, purses and suitcases, backpacks are the repository of much that is personal, particularly for people who lead itinerant lifestyles during the day as in the case of students and travellers. No doubt ordinary businessmen and businesswomen riding along on public transit or going up and down on elevators in office towers would be outraged at any suggestion that the contents of their briefcases could randomly be inspected by the police without “reasonable suspicion” of illegality. Because of their role in the lives of students, backpacks objectively command a measure of privacy.
“63 As the accused did not testify, the question of whether or not he had a subjective expectation of privacy in his backpack must be inferred from the circumstances. While teenagers may have little expectation of privacy from the searching eyes and fingers of their parents, I think it obvious that they expect the contents of their backpacks not to be open to the random and speculative scrutiny of the police. This expectation is a reasonable one that society should support.”
These remarks are controversial, and they contrast with those of the dissenters, Deschamps and Rothstein JJ at 119, 128 – 140. The difference reflects how rights arguments can become too abstract to remain in touch with societal needs.
This is not to say that exclusion of different things found would always follow in cases that were, in other respects, similar. As Binnie J (delivering the judgment of himself and McLachlin CJ) observed at 37, the seriousness of the detected offending is a relevant consideration. Apparently, in this case, the risk posed to other pupils, and the likely consequences of detection to the offender, did not outweigh the harm that would be caused to the pupil by breach of what was held to be his privacy right in respect to the contents of his backpack.
Opinions will vary about whether the Court has successfully “bridged the gap between law and society” (as Aharon Barak puts the judicial role in “The Judge in a Democracy” (2006)) or whether it has increased that gap.
What a cute doggie!
In R v Kang-Brown [2008] SCC 18 (25 April 2008) the accused got off a bus and his behaviour caused an undercover police officer to suspect that he might have drugs in a bag he was carrying. There were no reasonable grounds to search him. The officer got him into conversation, then identified himself and asked if he would consent to a search of the bag. An initial appearance of consent changed when the officer went to reach into the bag, and Mr Kang-Brown pulled the bag away. The officer, as a result of this withdrawal of consent, called over a dog handler, and the dog indicated the presence of drugs in the bag. Seventeen ounces (0.476 kg) of cocaine was in the bag, and Mr Kang-Brown was charged with possession of it for trafficking.
Of course, one can summarise the facts of a case in various ways. There is a risk in casting them in the wrong light and departing from the findings in the court where they were determined (see per Bastarache J, dissenting at 202).
But the essentials are that there were no sufficient grounds for a lawful search at the time the decision was made to call the dog handler.
Some of the Judges in the Supreme Court of Canada wanted to change the law so that the grounds for a search in these circumstances would more easily exist. This was because the focus of the case was seen as the use of the sniffer dog (whose name is Chevy).
It is not inevitable that that should have been the focus of the case. There were elements of illegality to the search before the dog was involved: the absence of grounds and the (albeit brief) detention while the dog was brought over and put to work. In terms of the right not to be subjected to unreasonable search, this did amount to a breach. One would expect that to bring into play the balancing exercise necessary to determine the admissibility of the evidence. Surprisingly, the evidence of this relatively (compared to the breach of rights) serious offence was excluded by the majority McLachlin CJ, Binnie, LeBel, Fish, Abella and Charron JJ.
It is no surprise, given the nature of law, that this mundane incident, with its trivial breach of rights, was worked up into a huge legal controversy about the use of sniffer dogs in public places. The focus became the common law legality of search by sniffer dogs: should the Court decide this before Parliament does, and, if so, what grounds would make such searches lawful? Plainly, reasonable grounds to believe would be too high, as the use of the dog would be rendered superfluous and the search by the enforcement officer could proceed. Mere suspicion may seem too low, once one has decided (as all Judges here did) that the dog’s action in sniffing does amount to a search, although Bastarache J was prepared to come close to this with his proposal of a generalised suspicion as sufficient grounds. The solution, reasonable suspicion, was favoured by McLachlin CJ, Binnie, Deschamps and Rothstein JJ. This did not appeal to the other four judges (LeBel, giving the reasons of himself and Fish, Abella and Charron JJ), who did not think it appropriate to downgrade the reasonable and probable cause requirement (para 16).
The difficulties arise once one says that the use of the dog was a search. On the facts here it clearly was, because it was focused on the contents of a particular bag that, in effect, the police had seized. But it does not follow that routine sniffing around people at a transport hub amounts to search. Most people would think it was rather cute.
Of course, one can summarise the facts of a case in various ways. There is a risk in casting them in the wrong light and departing from the findings in the court where they were determined (see per Bastarache J, dissenting at 202).
But the essentials are that there were no sufficient grounds for a lawful search at the time the decision was made to call the dog handler.
Some of the Judges in the Supreme Court of Canada wanted to change the law so that the grounds for a search in these circumstances would more easily exist. This was because the focus of the case was seen as the use of the sniffer dog (whose name is Chevy).
It is not inevitable that that should have been the focus of the case. There were elements of illegality to the search before the dog was involved: the absence of grounds and the (albeit brief) detention while the dog was brought over and put to work. In terms of the right not to be subjected to unreasonable search, this did amount to a breach. One would expect that to bring into play the balancing exercise necessary to determine the admissibility of the evidence. Surprisingly, the evidence of this relatively (compared to the breach of rights) serious offence was excluded by the majority McLachlin CJ, Binnie, LeBel, Fish, Abella and Charron JJ.
It is no surprise, given the nature of law, that this mundane incident, with its trivial breach of rights, was worked up into a huge legal controversy about the use of sniffer dogs in public places. The focus became the common law legality of search by sniffer dogs: should the Court decide this before Parliament does, and, if so, what grounds would make such searches lawful? Plainly, reasonable grounds to believe would be too high, as the use of the dog would be rendered superfluous and the search by the enforcement officer could proceed. Mere suspicion may seem too low, once one has decided (as all Judges here did) that the dog’s action in sniffing does amount to a search, although Bastarache J was prepared to come close to this with his proposal of a generalised suspicion as sufficient grounds. The solution, reasonable suspicion, was favoured by McLachlin CJ, Binnie, Deschamps and Rothstein JJ. This did not appeal to the other four judges (LeBel, giving the reasons of himself and Fish, Abella and Charron JJ), who did not think it appropriate to downgrade the reasonable and probable cause requirement (para 16).
The difficulties arise once one says that the use of the dog was a search. On the facts here it clearly was, because it was focused on the contents of a particular bag that, in effect, the police had seized. But it does not follow that routine sniffing around people at a transport hub amounts to search. Most people would think it was rather cute.
Saturday, April 26, 2008
Propensity evidence: admissibility and Bayes Theorem
The High Court of Australia has given detailed consideration to how evidence of an accused’s propensity should be handled, in three jointly heard appeals: HML v The Queen; SB v The Queen and OAE v The Queen [2008] HCA 16 (24 April 2008).
The seven Judges delivered seven judgments. Unfortunately, and a trace of regret about this is evident in the remarks of Kirby J at para 82, the issue of real general interest was not unanimously decided because of the different approaches taken. This issue is, what role, if any, the standard of proof beyond reasonable doubt has in connection with proof of the alleged propensity.
The admissibility rule in Australia
I say that was the issue of general interest, because much of the judgment is concerned with the nearly-extinct rule in Pfennig v The Queen [1995] HCA 7, (1995) 182 CLR 461. This is, in essence, a rule about the probative value that propensity evidence must have in the context of a particular case before it can be ruled admissible. Only if the judge finds that, assuming the propensity evidence is accepted as true, and assuming the other prosecution evidence in the case is also accepted, the effect of the propensity evidence would be to exclude any reasonable doubt that would otherwise exist about the accused’s guilt, can the evidence be said to have sufficient probative value to be admitted. This affects the more generally applicable requirement that evidence must be excluded if its probative value is outweighed by its illegitimately prejudicial effect, by replacing the discretion with a rule (Gleeson CJ at 15). Hayne J discussed the application of this rule at 112 – 118. Gummow J and Kirby J agreed (41, 51).
Standard of proof of propensity evidence
It is often claimed that the only thing that needs to be proved beyond reasonable doubt in a criminal trial is the guilt of the accused. Each element of the offence must be proved beyond reasonable doubt. Policy has supported an evidential rule that the voluntariness of a confession must be proved beyond reasonable doubt. It is by no means clear that evidence of the accused’s propensity has to be proved beyond reasonable doubt.
Propensity evidence is, after all, a form of circumstantial evidence, and circumstantial evidence does not carry a standard of proof. But the view favoured by Kirby J is that propensity must be proved beyond reasonable doubt. He summarised the approaches of the other members:
“82 … Heydon J considers that it is unnecessary to decide whether the criminal standard of proof has a wider application in cases such as the present, because whatever the case, the judges' summing up in each of the three appeals included a direction incorporating the criminal standard[Reasons of Heydon J at [339], [376], [395]-[396]]. This is so, notwithstanding that the ostensible purpose of these appeals was to settle that issue with an authoritative statement by this Court. Crennan J endorses a principle similar to that stated by Gleeson CJ[Reasons of Crennan J at [477]], although she ultimately relies on the conclusion of Heydon J that directions incorporating the criminal standard were in fact given in the trial of OAE[Reasons of Crennan J at [483]]. It is apparent from the analysis of Kiefel J[See reasons of Kiefel J at [512]-[513]] that her Honour considers that, because the relevant evidence was relied upon for a purpose other than "disclosing [OAE's] sexual interest" in the complainant[Reasons of Kiefel J at [517]], a direction as to the criminal standard of proof was not required.”
Gleeson CJ held at 31 that the standard of proof beyond reasonable doubt applies only to indispensable facts, and Crennan J at 477 agreed. Hayne J held at 196 that where propensity evidence is admitted as an essential step in the reasoning (and Pfennig indicates that, since it is the admissible propensity evidence that removes any reasonable doubt about the accused’s guilt, it is essential) it must be proved beyond reasonable doubt.
Kirby J held that propensity evidence must be proved beyond reasonable doubt:
“[83] I support the conclusion of Hayne J. It is necessary and desirable for this Court to resolve the issue concerning directions to be given on the standard of proof applicable to evidence of "uncharged acts" for the guidance of trial judges and intermediate courts still observing the common law in this respect. I would hold that wherever such evidence has been admitted under the Pfennig test and is propounded as relevant to a step in reasoning towards the accused's guilt of an offence charged, the jury must be told that they are to be satisfied beyond reasonable doubt that such evidence has been proved before they reason that the accused is guilty on the basis of it[Reasons of Hayne J at [132], [244]]. This is the essential quid pro quo for allowing such evidence to be placed before the jury at all. It is mandated by considerations of law but also of basic fairness, considered in the context of an accusatorial trial that still observes rules of particularity as to the offences charged.”
The Australian approach to propensity evidence was devised to avoid a perceived risk that judicial directions on the proper use of such evidence will not necessarily be effective. Hayne J put it this way at 116:
“… Judicial directions about use of such evidence have not hitherto been seen, and should not now be seen, as solving that problem. The possible uses to which evidence of other acts (which does not meet the Pfennig test) may be put are inevitably so intertwined that they cannot be sufficiently disentangled to give useful instructions to the jury. And even if the various uses of such evidence could be disentangled, that would leave unaddressed and unanswered the further difficulty that the jury may attach more significance to the evidence of other acts than they should. That is why the solution that has been adopted for so long by the common law, reflected in this Court's decision in Pfennig, is to limit the circumstances in which evidence of other discreditable acts of an accused will be received in evidence.”
He summarised the Court’s position on the standard of proof of propensity evidence that demonstrated that the accused had a sexual interest in the respective complainant in these appeals:
“[247] …It is important to recognise, however, that at least a majority of the Court[Gummow J at [41], Kirby J at [63], Kiefel J at [506] and these reasons at [132]] is of the opinion that "[i]n the ordinary course a jury would be instructed by the trial judge that they must only find that the accused has a sexual interest in the complainant if it is proved beyond reasonable doubt"….”
Logical reasoning
Since the choice of the standard beyond reasonable doubt for propensity evidence is a policy choice, it should not be criticised for being illogical. But it is illogical.
It imposes on the jury an “if and only if, then …” form of reasoning: if and only if the propensity evidence is true, then the accused is guilty on the present charge. It is more appropriate to apply a logic of conditional probabilities to this situation (and, indeed, to most decisions a jury has to make). In the absence of concessions or admissions, certainties don’t arise in trials. Even fingerprint evidence is given in the form of opinion, and testimony involving any form of measurement inevitably involves a range of error. The truth of testimony is appropriately thought of as a probability. Evidence of propensity will be assessed by a juror as being more or less likely to be true, that is, as having a probability of being true.
The majority approach in HML v The Queen, requiring this probability to equate with beyond reasonable doubt, is too restrictive. Conditional probability reasoning, as expressed in Bayes’ Theorem, involves considering the likelihood of getting the assessed probability of the propensity, given the accused is guilty on the present charge, compared to the likelihood of getting that assessed probability of the propensity, given that the accused is innocent on the present charge.
I have discussed the application of Bayes’ Theorem to propensity evidence in a draft paper (a perpetual draft so that it can be updated), available on this site here.
This question of whether some or any facts need to be proved beyond reasonable doubt before a verdict of guilty can be returned has given rise to controversy: see for example Chamberlain v The Queen (No 2) (1984) 153 CLR 521 (HCA), Shepherd v The Queen (1990) 170 CLR 573 (HCA), Thomas v R [1972] NZLR 34 (CA), R v Puttick (1985) 1 CRNZ 644 (CA), R v Holtz [2003] 1 NZLR 667; (2002) 20 CRNZ 14 (CA), R v Morin (1988) 44 CCC (3d) 193, and R v MacKenzie (1993) 78 CCC (3d) 193 (SCC).
A point that has led to confusion is the need for a juror to be sure (beyond reasonable doubt) of what fact is accepted; this is not to say that the fact itself establishes anything beyond reasonable doubt. For example, a witness may say that on examination of a bullet there is an 80% chance that it was fired from a specified gun. To require the juror to be sure, beyond reasonable doubt, that the result “80%” is correct, is not the same as requiring the juror to be sure, beyond reasonable doubt, that the bullet came from that gun. Once the testimony has been accepted, the juror can assess the likelihood of the result “80%” being obtained, given that the accused is guilty, compared with the likelihood of getting the “80%” result, given that the accused is innocent.
It is better, when trying to grapple with the role of proof beyond reasonable doubt, to think of the reasoning as following the logic of conditional probabilities, rather than to use the traditional metaphors of ropes and chains of reasoning. This is because they are too vague. In HML v The Queen the rope metaphor was not used by any of the Judges, but chains of reasoning were spoken of.
Update: On 26 November 2018 the New Zealand Supreme Court refused leave to appeal on a challenge to the absence of a requirement for proof of propensity to the beyond reasonable doubt standard, holding that, despite the different approaches in the United Kingdom and Australia, the law in New Zealand had taken a different course and was now settled: Grooby v R [2018] NZSC 114.
The seven Judges delivered seven judgments. Unfortunately, and a trace of regret about this is evident in the remarks of Kirby J at para 82, the issue of real general interest was not unanimously decided because of the different approaches taken. This issue is, what role, if any, the standard of proof beyond reasonable doubt has in connection with proof of the alleged propensity.
The admissibility rule in Australia
I say that was the issue of general interest, because much of the judgment is concerned with the nearly-extinct rule in Pfennig v The Queen [1995] HCA 7, (1995) 182 CLR 461. This is, in essence, a rule about the probative value that propensity evidence must have in the context of a particular case before it can be ruled admissible. Only if the judge finds that, assuming the propensity evidence is accepted as true, and assuming the other prosecution evidence in the case is also accepted, the effect of the propensity evidence would be to exclude any reasonable doubt that would otherwise exist about the accused’s guilt, can the evidence be said to have sufficient probative value to be admitted. This affects the more generally applicable requirement that evidence must be excluded if its probative value is outweighed by its illegitimately prejudicial effect, by replacing the discretion with a rule (Gleeson CJ at 15). Hayne J discussed the application of this rule at 112 – 118. Gummow J and Kirby J agreed (41, 51).
Standard of proof of propensity evidence
It is often claimed that the only thing that needs to be proved beyond reasonable doubt in a criminal trial is the guilt of the accused. Each element of the offence must be proved beyond reasonable doubt. Policy has supported an evidential rule that the voluntariness of a confession must be proved beyond reasonable doubt. It is by no means clear that evidence of the accused’s propensity has to be proved beyond reasonable doubt.
Propensity evidence is, after all, a form of circumstantial evidence, and circumstantial evidence does not carry a standard of proof. But the view favoured by Kirby J is that propensity must be proved beyond reasonable doubt. He summarised the approaches of the other members:
“82 … Heydon J considers that it is unnecessary to decide whether the criminal standard of proof has a wider application in cases such as the present, because whatever the case, the judges' summing up in each of the three appeals included a direction incorporating the criminal standard[Reasons of Heydon J at [339], [376], [395]-[396]]. This is so, notwithstanding that the ostensible purpose of these appeals was to settle that issue with an authoritative statement by this Court. Crennan J endorses a principle similar to that stated by Gleeson CJ[Reasons of Crennan J at [477]], although she ultimately relies on the conclusion of Heydon J that directions incorporating the criminal standard were in fact given in the trial of OAE[Reasons of Crennan J at [483]]. It is apparent from the analysis of Kiefel J[See reasons of Kiefel J at [512]-[513]] that her Honour considers that, because the relevant evidence was relied upon for a purpose other than "disclosing [OAE's] sexual interest" in the complainant[Reasons of Kiefel J at [517]], a direction as to the criminal standard of proof was not required.”
Gleeson CJ held at 31 that the standard of proof beyond reasonable doubt applies only to indispensable facts, and Crennan J at 477 agreed. Hayne J held at 196 that where propensity evidence is admitted as an essential step in the reasoning (and Pfennig indicates that, since it is the admissible propensity evidence that removes any reasonable doubt about the accused’s guilt, it is essential) it must be proved beyond reasonable doubt.
Kirby J held that propensity evidence must be proved beyond reasonable doubt:
“[83] I support the conclusion of Hayne J. It is necessary and desirable for this Court to resolve the issue concerning directions to be given on the standard of proof applicable to evidence of "uncharged acts" for the guidance of trial judges and intermediate courts still observing the common law in this respect. I would hold that wherever such evidence has been admitted under the Pfennig test and is propounded as relevant to a step in reasoning towards the accused's guilt of an offence charged, the jury must be told that they are to be satisfied beyond reasonable doubt that such evidence has been proved before they reason that the accused is guilty on the basis of it[Reasons of Hayne J at [132], [244]]. This is the essential quid pro quo for allowing such evidence to be placed before the jury at all. It is mandated by considerations of law but also of basic fairness, considered in the context of an accusatorial trial that still observes rules of particularity as to the offences charged.”
The Australian approach to propensity evidence was devised to avoid a perceived risk that judicial directions on the proper use of such evidence will not necessarily be effective. Hayne J put it this way at 116:
“… Judicial directions about use of such evidence have not hitherto been seen, and should not now be seen, as solving that problem. The possible uses to which evidence of other acts (which does not meet the Pfennig test) may be put are inevitably so intertwined that they cannot be sufficiently disentangled to give useful instructions to the jury. And even if the various uses of such evidence could be disentangled, that would leave unaddressed and unanswered the further difficulty that the jury may attach more significance to the evidence of other acts than they should. That is why the solution that has been adopted for so long by the common law, reflected in this Court's decision in Pfennig, is to limit the circumstances in which evidence of other discreditable acts of an accused will be received in evidence.”
He summarised the Court’s position on the standard of proof of propensity evidence that demonstrated that the accused had a sexual interest in the respective complainant in these appeals:
“[247] …It is important to recognise, however, that at least a majority of the Court[Gummow J at [41], Kirby J at [63], Kiefel J at [506] and these reasons at [132]] is of the opinion that "[i]n the ordinary course a jury would be instructed by the trial judge that they must only find that the accused has a sexual interest in the complainant if it is proved beyond reasonable doubt"….”
Logical reasoning
Since the choice of the standard beyond reasonable doubt for propensity evidence is a policy choice, it should not be criticised for being illogical. But it is illogical.
It imposes on the jury an “if and only if, then …” form of reasoning: if and only if the propensity evidence is true, then the accused is guilty on the present charge. It is more appropriate to apply a logic of conditional probabilities to this situation (and, indeed, to most decisions a jury has to make). In the absence of concessions or admissions, certainties don’t arise in trials. Even fingerprint evidence is given in the form of opinion, and testimony involving any form of measurement inevitably involves a range of error. The truth of testimony is appropriately thought of as a probability. Evidence of propensity will be assessed by a juror as being more or less likely to be true, that is, as having a probability of being true.
The majority approach in HML v The Queen, requiring this probability to equate with beyond reasonable doubt, is too restrictive. Conditional probability reasoning, as expressed in Bayes’ Theorem, involves considering the likelihood of getting the assessed probability of the propensity, given the accused is guilty on the present charge, compared to the likelihood of getting that assessed probability of the propensity, given that the accused is innocent on the present charge.
I have discussed the application of Bayes’ Theorem to propensity evidence in a draft paper (a perpetual draft so that it can be updated), available on this site here.
This question of whether some or any facts need to be proved beyond reasonable doubt before a verdict of guilty can be returned has given rise to controversy: see for example Chamberlain v The Queen (No 2) (1984) 153 CLR 521 (HCA), Shepherd v The Queen (1990) 170 CLR 573 (HCA), Thomas v R [1972] NZLR 34 (CA), R v Puttick (1985) 1 CRNZ 644 (CA), R v Holtz [2003] 1 NZLR 667; (2002) 20 CRNZ 14 (CA), R v Morin (1988) 44 CCC (3d) 193, and R v MacKenzie (1993) 78 CCC (3d) 193 (SCC).
A point that has led to confusion is the need for a juror to be sure (beyond reasonable doubt) of what fact is accepted; this is not to say that the fact itself establishes anything beyond reasonable doubt. For example, a witness may say that on examination of a bullet there is an 80% chance that it was fired from a specified gun. To require the juror to be sure, beyond reasonable doubt, that the result “80%” is correct, is not the same as requiring the juror to be sure, beyond reasonable doubt, that the bullet came from that gun. Once the testimony has been accepted, the juror can assess the likelihood of the result “80%” being obtained, given that the accused is guilty, compared with the likelihood of getting the “80%” result, given that the accused is innocent.
It is better, when trying to grapple with the role of proof beyond reasonable doubt, to think of the reasoning as following the logic of conditional probabilities, rather than to use the traditional metaphors of ropes and chains of reasoning. This is because they are too vague. In HML v The Queen the rope metaphor was not used by any of the Judges, but chains of reasoning were spoken of.
Update: On 26 November 2018 the New Zealand Supreme Court refused leave to appeal on a challenge to the absence of a requirement for proof of propensity to the beyond reasonable doubt standard, holding that, despite the different approaches in the United Kingdom and Australia, the law in New Zealand had taken a different course and was now settled: Grooby v R [2018] NZSC 114.
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