A note on good character direction cases

Just a note on Maye v R (Jamaica) [2008] UKPC 35 (1 July 2008): the Board referred to recent decisions on the failure of the judge to give a good character direction:

“20. [Counsel for the Crown] quite properly reminds the Board of a series of recent cases such as Bhola v The State [2006] UKPC 9; (2006) 68 WLR 449, Gilbert v The Queen [2006] UKPC 15; [2006] 1 WLR 2108 and Simmons and Green v The Queen [2006] UKPC 19; (2006) 68 WLR 37, which make it plain that the lack of a proper good character direction will not avail the appellant where the court is satisfied that the jury would in any event have convicted. In all those cases, however, the evidence against the accused had been overwhelming.”

(See blog entries for 29 March 2006 and 4 April 2006.)

Here a conviction was not inevitable, and the combination of absence of a good character direction and the failure to call a relevant defence witness caused the Board to quash the appellant’s conviction and remit to the Court of Appeal the decision on whether to order a retrial.

Whether there should be a rule requiring a good character direction whenever the defence point to evidence of good character is a vexed question. In Melbourne v R [1999] HCA 32 (5 August 1999) the majority of the High Court held that a rule should not be applied but rather the matter should be one for the judge’s discretion. Hayne J at 155, after referring to the position in New Zealand and in England and Wales, concluded:

“…There is no point in insisting that a trial judge must give such a direction in every case (or nearly every case) in which good character is established unless to do so assists in achieving a fair trial. And that directs attention to what is in issue at trial.”

Gummow J at 68 referred to historical reasons for allowing evidence of good character, and at 79 preferred the discretionary approach taken by Thomas J (dissenting) in R v Falealili [1996] 3 NZLR 664 at 671-672, which focuses attention on whether the evidence is probative and relevant, as opposed to lacking in probative force and being of remote relevance to the charge in issue.

Kirby J concluded, dissenting, that a rule was the preferable approach, but also indicated (108) that more than mere mention in evidence of absence of previous convictions should be necessary to give rise to the requirement for a good character direction.

McHugh J had two reasons for declining to introduce into Australian law a rule requiring a good character direction (32):

“…First, the difference between the use of good character evidence and the use of bad character evidence in a criminal trial is logically anomalous and, while that difference is too deeply rooted in the law to be removed by judicial decision, it should not be widened. Second, in cases where good character evidence has no logical connection with the elements of the offence, a mandatory direction is likely to divert the jury from properly evaluating evidence which more directly and logically bears upon the guilt of the accused and … such a direction may even confuse the jury.”

In New Zealand the Evidence Act 2006 does not expressly require a direction on good character evidence, and s 11 preserves the “inherent and implied powers of a court” which are not affected by the Act. The matter may continue to be one for development at common law, so that the present position is as stated by the majority in R v Falealili [1996] 3 NZLR 664 (CA). Although, perhaps not: in R v Kant [2008] NZCA 194 (1 July 2008) a divisional Court held that under the Evidence Act 2006 evidence that a defendant has no previous convictions would not meet the high standard of being "substantially helpful" on the issue of veracity (s 37(1)), so would not be admissible. The Court indicated that this point should be determined by the permanent Court as soon as possible.

[Update: in Wi v R [2009] NZSC 121 (27 November 2009) the Supreme Court overruled Kant, holding that evidence of absence of previous convictions does meet the requirement of relevance and is admissible as propensity evidence notwithstanding that its probative value may be slight. The Court added that a good character direction is not mandatory and will usually not be desirable, but the judge must be guided by the requirements of fairness.]

Liability 101: a tutorial teaser

An aspect of the mens rea requirements for liability as a secondary party to an offence was decided in R v Rahman [2008] UKHL 45 (2 July 2008).

Broadly, some foresight is required before accessory liability arises, but is it about what the principal might do, or what he might intend?

The Law Lords unanimously held that foresight goes to what the principal might do, not what he might intend.

In this case four men were charged with murder, and it was likely that the person who struck the fatal blow was never apprehended, as many of the participants in this confrontation between groups of youths fled as the police arrived. There was no doubt that the infliction of unlawful violence was a shared intention, and participants were armed with blunt instruments. However, the victim’s death was caused by a knife used with deadly force. The four defendants (appellants) did not know or foresee that killing was intended. This was held to be no obstacle to their conviction for murder.

The reasons for excluding knowledge or foresight of the principal’s intention from the mens rea for secondary liability were based on considerations pertaining to murder (Lord Bingham at 24-25). Foresight of the principal’s acts, insofar as they involved infliction of serious injury, was given some modification by Lord Brown at 68, with whom Lord Scott appears to have agreed at 31, and with whom Lord Neuberger agreed at 104: foresight of violent acts does not include the unexpected use of a more lethal weapon than had been expected as that would make the principal’s act fundamentally different from anything foreseen. Lord Bingham considered (26) that the exclusion of secondary liability where the principal’s act was “fundamentally different” from what was foreseen was a sufficiently clear criterion for a jury to understand without elaboration.

In New Zealand this topic is dealt with in s 66(2) of the Crimes Act 1961:

“Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.”

The point decided in Rahman would, if applied to this, mean that the word “known” applies to the actus reus of “the commission of that offence”, and not to its mens rea.

And here's the teaser: what if the victim in Rahman had survived and the accuseds were charged with being accessories to attempted murder? Would they have no defence that the principal did not intend to kill?

Policy fairness and trial fairness

There are times when the concept of a fair trial calls for explanation. Different notions of what a fair trial is lie behind the 6-1 split in the Chamber Court in Gafgen v Germany [2008] EctHR 565 (30 June 2008).

Evidence had been obtained after the police had subjected the accused to threats which amounted to inhumane treatment, in breach of Art 3 of the ECHR. Part of this evidence comprised his confessional statements made as a result of the threats, before trial, and these statements were ruled inadmissible. This appeal concerned the admissibility of real evidence obtained after the confession, when the accused showed the police where he had concealed the body of the child he had killed. This consisted of the finding of the dead child and the results of a subsequent autopsy, and the accused’s vehicle’s tyre marks in the ground near the body.

The majority noted that the Regional Court in Germany had determined the admissibility of this real evidence, applying a balancing exercise and ruling it admissible, and the European Court’s role was to consider the overall fairness (105). This was not a case where the police had used actual force on the accused so the trial was not one which would be automatically unfair.

That is the point at which one Judge dissented: he held that unfairness should follow automatically upon a finding of a breach of Art 3, which is absolute in its terms. There is no room, he said, for permitting some inhumane treatment just because the suspect poses a serious risk to the safety of the community. The breach of Art 3 was a breach of the accused’s right to silence and it thereby affected the fairness of the trial.

The majority’s view of the meaning of the fairness of a trial can be seen from its analysis of the position here (106-109). The accused, represented at trial, had made new and complete confessions. These proved he had planned the offences (kidnapping, demanding a ransom, and murder) and the statements were corroborated by a witness and by a note found at the accused’s flat. The police had observed the accused collect the ransom. The only use made by the trial court of the items of impugned evidence was to confirm the trial confessions. The impugned evidence was therefore, said the majority, of an “accessory” nature only, in the sense that it’s use was restricted to assessing the veracity of his trial statements. The two statements he made at trial, one at the beginning and one at the end, were in different terms, reflecting a defence strategy, and were not, said the majority, made as a result of his loss of rights as a result of breach of Art 3. The Regional Court had given a reasoned decision for its rejection of his submission that the evidence in question here was inadmissible, and so the accused’s trial rights were also observed in that regard.

From this perspective, the minority Judge was incorrect to the extent he implied that the only reason the accused was on trial was because he had been subjected to a breach of his Art 3 rights.

On what basis could the proceedings against Mr Gafgen have properly been said to be unfair? There are two relevant ways in which fairness is used in this context: public policy fairness and procedural fairness. Public policy fairness involves the balancing of an impropriety against other relevant values in order to determine whether challenged evidence should be excluded, or, where the impropriety is at the serious extreme, whether the proceedings should be stayed. The Regional Court in this case carried out this balancing exercise and ruled the evidence admissible. The Strasbourg Court did not interfere with that assessment, and it suggested that only where there is physically inhumane treatment should the proceedings be stayed. The dissenting Judge, in effect, would have held that any inhumane treatment, including threats, should be sufficient to require a stay of the proceedings.

The second way in which fairness is used is in the concept of a procedurally fair trial. This means a trial in which the law is accurately applied to facts that are determined impartially. The majority held that, given the correctness of the balancing decision to admit the evidence, there was no resulting impartiality. The trial Court did not give improper weight to other evidence as a result of the admission of the challenged evidence. Neither, as “accessory” evidence, was the challenged evidence given weight that it did not merit. On the other hand, the dissenting Judge, in effect, considered that the breach of Art 3 resulted in a breach of the accused’s right to silence, and impartiality arose from the prosecution having the advantage of more evidence than it would have gathered without the breach of Art 3.

The position would have been clearer if the ECtHR had been willing to examine the correctness of the Regional Court’s carrying out of the balancing exercise, although there are reasons of jurisdiction for it not having done so. If the Court had examined the balancing exercise, it probably would not have accepted that all breaches of Art 3 carry the same weight. Some forms of inhumanity are indeed more serious than others. Not all such improprieties require exclusion of evidence in serious cases. The dissenting Judge was wrong on the public policy aspect of the case. He treated policy matters that were the domain of the national court as if they were relevant to procedural fairness. He was also wrong to hold that the breach of the accused’s right to silence (assuming that there was such a breach) led to impartiality through the prosecution having more evidence than it should have had: the quantity of evidence is an admissibility issue to be determined by the public policy balancing exercise; an analogy may be made with evidence obtained through improperly conducted searches. The minority Judge’s concerns are subsumed in the balancing exercise.

Of course views on the correctness of Gafgen v Germany may differ. It is worth looking at the case to see how strikingly similar the balancing exercise is in German law to that in the jurisdictions that follow the English tradition. The similarity is enough to make you pick up your copy of George Fletcher’s “Rethinking Criminal Law” (1978) – happy 30th! – but as his American English is rather unclear I don’t get far with it, again. But don’t let my difficulties put you off; I am, apparently, the only person who thinks HLA Hart’s English English is tediously obscure.

Counsel misconduct: unfair or merely improper?

When does it matter that counsel conducts a case improperly? In Huggins v The State (Trinidad and Tobago) [2008] UKPC 30 (9 June 2008) prosecuting counsel was held not to have caused the trial to be unfair, although it was complained that he had made disparaging and belittling remarks about witnesses and counsel and that he had accused one counsel of being party to concocting his client's case and coaching him in his evidence (para 18).

The Board’s assessment was (para 32):

“…their Lordships strongly deplore behaviour of this nature by prosecuting counsel. They should observe proper standards of decorum and courtesy in their conduct of the case, their treatment of the witnesses and the presentation of their addresses to the jury, as should all counsel in a trial. They should take care not to misrepresent the evidence given on either side or the case being made on behalf of the defence. They are of course entitled to make out as effectively as they can the prosecution case against the defendant, that he is guilty of the crime charged, for that is their proper function in an adversarial system. They have to be careful, however, not to allow vigour in presentation of the prosecution case to trespass into the area of unfairness by indulging in the type of behaviour exemplified by the cases which their Lordships have cited. Regrettably prosecuting counsel in the present case overstepped the mark on a number of occasions, and it would have been preferable if the judge had pulled him up earlier and made it clear that such behaviour was unacceptable. The issue is whether his departure from propriety was of such a nature as to deprive the appellants of a fair trial.”

This effort to state standards that apply to all counsel is, unfortunately, hindered by the Board’s deference to the view of the Court of Appeal here, as it acknowledged that it was “influenced by the fact that the Court of Appeal, with their knowledge of local conditions and culture, were of opinion that those remarks would not influence a jury in Trinidad to an extent which would make a trial unfair.” (para 34)

What, then, is the sort of influence on a jury that would make the trial unfair? The Board emphasised the approach in Randall v R [2002] UKPC 19 that the overriding requirement is that the trial is fair, regardless of the strength of the evidence against the accused. As Lord Bingham said at para 28 of Randall:

“…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.”

The exercise is one of weighing up the seriousness of the irregularities (29) as occurred in Bernard v The State [2007] UKPC 34 (blogged here 11 May 2007). As I noted in discussing Bernard, the views of Lord Carswell (who delivered the Board’s judgment in that case and in the present case) may be changing, to emphasise that fairness does not turn on the strength of the prosecution case.

Given that we are not here to focus on the strength of the prosecution case, the sort of influence on the jury that is relevant is the risk that the jury will become prejudiced, partial, biased as a result of the misconduct.

That is why the Board was prepared to be influenced by the Court of Appeal’s view of the effect of the misconduct on the jury in this case.

This is not to say that, in countries with such juries, counsel may engage in misconduct as long as it falls short of causing unfairness. The Board made it clear that when it occurs, the judge should intervene to prevent its continuation.

The cases illustrate distinctions between robust but respectful speech (Benedetto v R [2003] UKPC 27) and gratuitous and unpleasant remarks about defence counsel and improper vouching for the soundness of the prosecution case (Ramdhanie v The State (Trinidad and Tobago) [2005] UKPC 47).

The idea that unfairness is unfairness, no matter whether it is caused by procedural error or the improper admission of evidence, which I have advanced in discussing Bernard v The State, is relevant to another aspect of the present case. A second ground of appeal was that new evidence undermined the ruling at voir dire that statements by two of the accused were admissible. Here the Board noted (37) “Given the strength of the prosecution case, the prospect that the material would have caused the jury to reach a different conclusion on these appellants' guilt is highly questionable.” This seems to be treating the (posited) improper admission of evidence as being cured by the strength of the prosecution case. This was obiter, as the new evidence was held not to have affected the correctness of the decision to rule the statements admissible.

It would have been more in keeping with an unfragmented concept of fairness to hold that the statements, if wrongly ruled admissible, did not cause the jury to be more disposed to accepting other prosecution evidence than it otherwise would have been.

More hearsay ...

In this season of contemplation of hearsay, the Supreme Court of Canada chips in with R v Blackman [2008] SCC 37 (26 June 2008). This concerns the principled approach to admission of hearsay that is not covered by another recognised exception to the exclusionary rule.

Here the hearsay statements were by the now deceased victim to his mother, the witness who would report the statements to the court. They were relevant to an issue: the identity of his killer.

Some points made by the Court:

• At the stage where the determination of admissibility has to be made, the judge may have to accept an assurance from counsel that other evidence will establish the relevance of the proposed hearsay statements (para 32).
  

• The proponent of the hearsay must establish the necessity for it and its reliability on the balance of probabilities (33).
  

• It is wrong for the judge to ask whether the hearsay statement is inherently unreliable; that is to reverse the burden of proof. Because hearsay is presumptively inadmissible, the question is whether the proposed statement is inherently reliable (37-38).
  

• Absence of evidence of a motive to fabricate the assertion in the statement is not the same as evidence of an absence of motive to fabricate (39).
  

• The focus is on the trustworthiness of the hearsay statement (R v Khelawon, blogged here 15 December 2006): what are the dangers in admitting the statement and can these be overcome? (54)
  

• It is important not to confuse the determination of admissibility by referring to the wider circumstances of the case (57), but there can be occasions where the presence of corroboration does go to the trustworthiness of the hearsay statement (55).
  

These points, I suggest, have some relevance to the approach to hearsay in New Zealand: see Evidence Act 2006, ss 16 – 22, especially s 18(1)(a). In other respects the decision in Khelawon is not applicable here, insofar as in some circumstances it passes to the jury the assessment of the reliability of the statement and this could confuse reliability with probative value. The last point is difficult: it means that generally the reliability of the hearsay statement is assessed by reference to the context in which it was made, and not by the context of the overall evidence in the case, except that sometimes corroborative evidence will assist in deciding admissibility.

The customer appreciation party

Notable about Smith v R (Jamaica) [2008] UKPC (23 June 2008), aside from a sardonic and picturesque narrative of the facts (involving the fatal stabbing of “Ram Puss” at a street party in Kingston which was a “customer appreciation party” hosted by the appellant’s father at a shipping container which had been converted to a small “cook shop”), is a comment on the standard of proof of facts that have to be established before evidence becomes admissible.

Here, the evidence in question was a deposition made by an eyewitness who became too afraid to give evidence at trial. Certain matters, set out in s 31D of the Evidence Act 1843, had to be “proved to the satisfaction of the court”. The Board held, para 21, "In their Lordships' opinion the standard applicable is proof beyond reasonable doubt … ".

This is of particular interest at a time when courts are tending to be satisfied with proof of preliminary facts to the standard of the balance of probabilities: see for example R v Aylwin [2008] NZCA 154.

Other topics touched on are the duties of prosecution counsel, the probative/prejudicial effect balancing exercise, and the absence of a good character direction. On the latter, the Board held, at 30:

“The law has become clearer since the time of this trial and it hardly needs repetition now that a defendant is entitled to have a good character direction from the judge when the facts warrant it and that its absence may be a ground for setting aside a verdict of guilty. It is the duty of defence counsel to ensure that the defendant's good character is brought before the court, and failure to do so and obtain the appropriate direction may make a guilty verdict unsafe: Sealey & Headley v The State [2002] UKPC 52, (2002) 61 WIR 491; Teeluck & John v The State [2005] UKPC 14 [2005] 1 WLR 2421. It has, however, been emphasised by the Board in recent cases that the critical factor is whether it would have made a difference to the result if the direction had been given: see, eg Bhola v The State [2006] UKPC 9, (2006) 68 WIR 449, para 17, per Lord Brown of Eaton-under-Heywood. In the present case the appellant did not give evidence and merely made an unsworn statement from the dock, so that the credibility limb of the direction would have been of lesser consequence. The propensity limb might have been of some relevance, but their Lordships do not consider that, looking at the trial as a whole, it would have made any difference to the verdict.”

I have commented here on Teeluck (see blog for 1 April 2005). See also Gilbert v R (Grenada) (29 March 2006). The extract just quoted from Smith states the critical factor as “whether it would have made a difference to the result if the direction had been given”. At this point the Board teeters on the brink of a terrible mistake. It would involve, as I pointed out discussing Gilbert, treating procedural unfairness as being remedied by strong prosecution evidence. However in the last sentence the Board appears to regain its balance, if it is saying that absence of propensity evidence would not have caused the jury to give inappropriate weight to any of the prosecution evidence: that would be a procedural ground for the decision, not a strength of prosecution case ground.

Hearsay and the US Constitution

Giles v California [2008] USSC No 07-6053 (25 June 2008) illustrates a tension between the Constitution and the law of evidence in California, and, by analogy, between the Constitution and the Federal Rules of Evidence (FRE). This was not a case where the FRE applied, but the California Evidence Code did.

Broadly, for the details are of little interest outside the USA, a majority of the Supreme Court held that the State court needed to make a further factual finding before the admissibility of some hearsay evidence could be determined. Scalia J, who delivered the opinion of the Court, was not in the majority in one important respect.

This concerns whether the Constitution can be read as accommodating developments in the law of hearsay, or whether its effect remained as the founders (a term I use broadly to include those who amended the Constitution) understood the law to be and wanted it to remain. Scalia J adhered to the Court’s decision in Crawford v Washington 541 US 36, 53-54 (2004) which takes the latter alternative, and said (slip op. p 22) that it is not for the Court to go behind the words of the Constitution to find underlying values which are then used to modify the effect of the guarantees.

That approach, rejecting growth and development, contrasts with rule 102 of the FRE, whereby the rules:

“… shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”

The FRE rule 807 creates a residual exception to the rule excluding hearsay, but the California Evidence Code does not have a corresponding provision; that is why resort was had in Giles to the Sixth Amendment right of confrontation. The Californian Code does, however, set out rules that would, subject to the factual matter yet to be determined, be applicable to the situation in this case (s 1370) and the Code must be construed liberally and with a view to promoting justice (s 2).

Breyer J, dissenting, referred to the interpretation issue (slip op. p 10):

“…the hearsay rule has always contained exceptions that permit the admission of evidence where the need is significant and where alternative safeguards of reliability exist. Those exceptions have evolved over time, see 2 K. Brown, McCormick on Evidence §326 (2006) (discussion the development of the modern hearsay rule); Fed. Rule Evid. 102 (“[T]hese rules shall be construed to secure . . . promotion of growth and development of the law of evidence”), often in a direction that permits admission of hearsay only where adequate alternative assurance of reliability exists, see, e.g., Rule 807 (the “Residual Exception”). Here, for example, the presence in court of a witness who took the declarant’s statement permits cross-examination of that witness as to just what the declarant said and as to the surrounding circumstances, while those circumstances themselves provide sufficient guarantees of accuracy to warrant admission under a State’s hearsay exception. See Cal. Evid. Code Ann. §1370.”

In Breyer J’s opinion, it was not necessary for the Constitution to set a high threshold for the loss of the right to confront a witness, because State legislatures could (and here, did) establish their own safeguards:

“To lower the constitutional barrier to admission is to allow the States to do just that, i.e., to apply their evidentiary rules with flexibility and to revise their rules as experience suggests would be advisable. The majority’s rule, which requires exclusion, would deprive the States of this freedom and flexibility.” (p. 11)

Breyer J was joined by Stevens and Kennedy JJ. Souter and Ginsburg JJ joined with Scalia J in all except the part of his opinion which dealt with the approach to interpreting the Constitution. This majority favoured a view of the Constitution that permitted development of the exceptions to the hearsay rule.

Refugees who might be criminals

It is of some comfort to learn that information gained from applicants for refugee status may be passed to authorities concerned with extradition or prosecution for crime: Attorney General v X and the Refugee Status Appeals Authority [2008] NZSC 48 (20 June 2008).

Three of the four judges in the lower courts had held that s 129T(3)(b) of the Immigration Act 1997 prevents such disclosure, but the dissenting judgment in the Court of Appeal was upheld.

Although the question of law in this case focused on use of information for the purpose of extradition or for possible prosecution of the first respondent in New Zealand under the International Crimes and International Criminal Court Act 2000, the decision is wider:

“12. … s 129T(3)(b) therefore permits disclosure to those referred to in that paragraph for the purpose of their considering the extradition or prosecution of the first respondent.”

For other examples of New Zealand’s assertion of jurisdiction to prosecute for certain crimes committed overseas, see also Crimes Act 1961, s 7A, Misuse of Drugs Act 1975, s 12C.

Difficult people

Is the right to conduct one’s own defence without representation by counsel essential to the fairness of a trial?

No: the fairness of a trial may be undermined if self-representation gives rise to loss of dignity and improper conviction. This risk arose as a result of the defendant’s uncertain mental state in Indiana v Edwards [2008] USSC No 7-208 (19 June 2008):

“… a right of self-representation at trial will not “affirm the dignity” of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel ... To the contrary, given that defendant’s uncertain mental state, the spectacle that could well result from his self-representation at trial is at least as likely to prove humiliating as ennobling. Moreover, insofar as a defendant’s lack of capacity threatens an improper conviction or sentence, self-representation in that exceptional context undercuts the most basic of the Constitution’s criminal law objectives, providing a fair trial. As Justice Brennan put it, “[t]he Constitution would protect none of us if it prevented the courts from acting to preserve the very processes that the Constitution itself prescribes.”  Allen, 397 U. S., at 350 (concurring opinion). See Martinez, 528 U. S., at 162 (“Even at the trial level . . . the government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer”). See also Sell v. United States, 539 U. S. 166, 180 (2003) (“[T]he Government has a concomitant, constitutionally essential interest in assuring that the defendant’s trial is a fair one”).

“Further, proceedings must not only be fair, they must “appear fair to all who observe them.” Wheat v. United States, 486 U. S. 153, 160 (1988).”

In Edwards the trial judge, who had also presided over preliminary hearings, had found that the defendant was competent to stand trial but was not competent to defend himself. Counsel was appointed to act for him, and he appealed his conviction, arguing that he had the constitutional right to represent himself. The Supreme Court held that trial judges have the authority to deal appropriately with cases where mental competence and fairness are in issue, and that the Constitution does not prevent a state insisting that a defendant who can’t represent himself has counsel appointed.

The considerations relevant to the issues of fairness that may arise when a defendant seeks to represent himself were addressed by Lord Bingham (as CJ) in Milton Brown [1998] 2 Cr App R 364, at pp 369-372:

“The trial judge is … obliged to have regard not only to the need to ensure a fair trial for the defendant but also to the reasonable interests of other parties to the court process, in particular witnesses, and among witnesses particularly those who are obliged to relive by describing in the witness box an ordeal to which they say they have been subject. It is the clear duty of the trial judge to do everything he can, consistently with giving the defendant a fair trial, to minimise the trauma suffered by other participants. Furthermore, a trial is not fair if a defendant, by choosing to represent himself, gains the advantage he would not have had if represented of abusing the rules in relation to relevance and repetition which apply when witnesses are questioned.

“Judges do not lack power to protect witnesses and control questioning. The trial judge is the master of proceedings in his court. He is not obliged to give an unrepresented defendant his head to ask whatever questions, at whatever length, the defendant wishes. In a case such as the present it will often be desirable, before any question is asked by the defendant of the complainant in cross-examination, for the trial judge to discuss the course of proceedings with the defendant in the absence of the jury. The judge can then elicit the general nature of the defence and identify the specific points in the complainant’s evidence with which the defendant takes issue, and any points he wishes to put to her. If the defendant proposes to call witnesses in his own defence, the substance of their evidence can be elicited so that the complainant’s observations on it may, so far as relevant, be invited. It will almost always be desirable in the first instance to allow a defendant to put questions to a complainant, but it should be made clear in advance that the defendant will be required, having put a point, to move on, and if he fails to do so the judge should intervene and secure compliance. If the defendant proves unable or unwilling to comply with the judge’s instructions the judge should, if necessary in order to save the complainant from avoidable distress, stop further questioning by the defendant or take over the questioning of the complainant himself. If the defendant seeks by his dress, bearing, manner or questions to dominate, intimidate or humiliate the complainant, or if it is reasonable apprehended that he will seek to do so, the judge should not hesitate to order the erection of a screen, in addition to controlling questioning in the way we have indicated.

“The exercise of these powers will always call for the exercise of a very careful judgment, since the judge must not only ensure that the defendant has a fair trial but also (which is not necessarily the same thing) that the jury feel he has had a fair trial.”

This was quoted by the New Zealand Court of Appeal in R v Cumming [2006] 2 NZLR 597, (2005) 22 CRNZ 171, which set out the following considerations:

“[50] Where, as happened in this case, an accused person with mental difficulties, who is assessed as fit to stand trial, wishes to dispense with counsel’s services and to represent himself, the questions which arise concerning compliance with the accused’s rights under ss 24 and 25 of the Bill of Rights and must be addressed in a different mental context. The requirement that the accused is rationally able to understand the proceeding and functionally able to defend it during the trial process must be addressed on the basis of the accused’s capacity to do that adequately in person, rather than merely through communication of instructions to counsel. The accused must have the capacity, albeit at a basic level, to participate directly in the trial through questioning witnesses and communicating the defence to the Court. This test, however, must be applied in a reasonable and common sense way. The corollary of a finding that an accused person is fit to plead but unfit due to psychological condition or any other reason to exercise the right to represent himself or herself personally at the trial, is that the statutory right to self-representation must be denied because the fundamental right to a fair trial will not be upheld if the accused is permitted to proceed to trial without counsel. In overseas jurisdictions this has resulted in the imposition on a defendant of counsel to conduct the defence. Before reaching that extreme position the trial Court must look at available means of accommodating all rights. One way of doing so may be to follow the course of appointing as an amicus a counsel whose role is to be available at the trial to assist the accused. The effect of the appointment of [counsel] to such a role in this case is an important consideration in determining whether the appellant was tried without unfairness or injustice in this case.

“[51] The decision of an accused to conduct the defence personally can often have repercussions for the course of the trial. Situations can arise in which the trial Judge may be required to intervene in the trial to avoid its disruption and ensure overall fairness to each side. It may also be necessary to act in unorthodox ways to accommodate the legitimate interests of others participating in the trial process as well as those of the accused. In appropriate cases the interests of witnesses, including complainants, may be accommodated by departure from standard criminal procedures in a manner that is consistent with the right to a fair trial: Brown v Stott [2003] 1 AC 681; [2001] 2 WLR 817 (PC), p 708; pp 839-840 per Lord Steyn [also reported as Procurator Fiscal v Brown (Scotland)[2000] UKPC D3].”

The Court of Appeal’s perception that the trial had been conducted fairly in Cumming was not upheld in the Supreme Court (see blog 16 May 2008), because the Court of Appeal had been unaware – as had the trial Judge – that the defendant should not have been diagnosed as fit to stand trial. The diagnosis had been made under a now-repealed law which had used the rather difficult concept of being “under disability” which required a (defined) “mental disorder”; now the new concept is that of being “unfit to stand trial” which requires an (undefined) mental impairment. The absence of a definition of this central concept is designed, apparently, to increase the occasions on which a difficult defendant is not put through the trial process. Being unfit to stand trial (s 4 Criminal Procedure (Mentally Impaired Persons) Act 2003) “means a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so …”.

I suppose it would be tempting to attribute difficult behaviour to mental impairment. Defendants who would pursue that as an avenue for avoiding criminal justice procedures will need to check the consequences of being found unfit to stand trial.

A recanting eyewitness

R v Devine [2008] SCC 36 (19 June 2008), routine in the sense that it does not decide new law, is a case that highlights the common law approach to the admissibility of a witness’s prior inconsistent statement as evidence of its truth. I say “common law”, meaning Canadian common law, but the approach will be familiar to anyone who has read this far. The case applies law stated in two cases I have noted previously: R v Khelawan, 15 December 2006, and R v Couture, 19 June 2007.

When the prior statement is sought to be used as evidence of its truth, it comes within the common law definition of hearsay. If a recognised specific exception does not apply to it, it can only be admissible if it qualifies under what in Canada is called the "principled approach” or “principled exception”, and what in other jurisdictions may be called the residual exception.

The principled or residual exception applies criteria that focus on two points: is it necessary, in the sense that there is no direct way of presenting the evidence, and if so, are there sufficient means of assuring that it is reliable? Where the witness is available for cross-examination at trial, as was the case in Devine, this reliability criterion will easily be met.

Does this mean that, where the witness is available for cross-examination, the principled exception will almost inevitably permit the admission of a prior inconsistent statement? Yes it seems to, but there is also the back-stop protection of the discretion to exclude evidence where its illegitimate prejudice “outweighs” (a mis-description of the test but so well established that its necessary meaning departs from its verbal formulation) its probative value.

In New Zealand the Evidence Act 2006 now excludes from the definition of hearsay out of court statements by witnesses who give evidence and who are able to be cross-examined. There are indications in dicta in Devine at 27 that if a witness claimed not to remember or refused to answer questions on relevant topics she would not be regarded as available for cross-examination. That is consistent with the Evidence Act 2006 s 4 definition of “witness” as a person “who gives evidence and is able to be cross-examined”. Prior inconsistent statements of witnesses who are able to be cross-examined are admissible for their truth, subject to the general exclusion provision, s 8. The statutory formulation of this (a revision of the common law “weighing” exercise) emphasises the right of the defendant to offer an effective defence. There are thus two reasons for excluding a prior statement if the person in the witness box refuses to answer or claims to have forgotten material points: the person is not able to be cross-examined and so is no longer a witness, and, if the person remains a witness, the right of the defendant to offer an effective defence is very likely to be breached.

In Devine the prosecution sought, successfully, to use a prior inconsistent statement by its own witness. There are, of course, limitations on the right of a party to challenge the evidence of its own witnesses. In this situation, hostility by the witness needs to be shown. Although not treated as a separate topic in this case, it is clear that the witness was being hostile: she gave evidence that the judge rejected about the source of her information in the prior statement identifying the accused as the person who has assaulted her companion (claiming in effect that it was hearsay and not her own observation); the judge found that she said this in an effort to avoid repeating the identification. In New Zealand s 4 of the Evidence Act 2006 defines “hostile” in this situation to require, in addition to inconsistency, “an intention to be unhelpful to the party who called the witness”. If that is established, the judge may give permission under s 94 to the caller to cross-examine, to an extent that the judge authorises.