A night mission

Judicial decisions must be based on adequate grounds, and a decision to stay proceedings is no different. In R v Edwards [2009] HCA 20 (21 May 2009) the High Court overturned the Supreme Court of Tasmania's decision to enter a stay. That Court (SlicerJ) had, held the High Court in a unanimous judgment, acted on a wrong principle and taken into account irrelevant considerations relating to the suggested complexity of the trial.

The charge was reckless operation of an aircraft. The recklessness was alleged to be taking off in darkness without the necessary runway illumination. Five people outside the aircraft saw that the takeoff was done without this lighting. Through delay in the proceedings electronic records of the operation of the lights was lost.

The respondents, the two pilots of this Boeing 737-400, sought a stay because of this loss of evidence. Slicer J put the test as "whether on the material before this Court continuation of the indictment to trial by jury could constitute an unacceptable injustice or unfairness" (emphasis added by the High Court at para 22)

The test, however, is not "could", but "would": "whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness", or whether the "continuation of the proceedings would be 'so unfairly and unjustifiably oppressive' as to constitute an abuse of process": Walton v Gardiner (1993) 177 CLR 378 at 392 per Mason CJ, Deane and Dawson JJ.

The High Court summarised Slicer J's errors as

" ... [his] ultimate conclusion was based upon the loss of the primary evidence and "overall" delay. It was not explained how the overall delay operated in combination with the lost evidence to create irremediable prejudice to the respondents, nor did his Honour address the circumstance that at least some of the delay was attributable to the conduct of the defence" [Footnote: See Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 33 per Mason CJ; [1989] HCA 46 as to the significance of the reasons for delay as a factor in the exercise of the balancing process in determining whether to grant a stay.]

On appeal, the "overall delay" point was not relied on by the respondents, but their argument was that "the loss here is of the independent record of the event giving rise to the charge. This is ... productive of unfairness of the kind that informs the power to stay since the trial will necessarily involve an incomplete reconstruction of the event."

Not so, said the High Court. There is nothing unusual in a court having to consider an incomplete account of events:

"31. The distinction between an independent record forming a constituent part of an event and an independent record of an event is without substance. Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair [Footnote: Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 34 per Mason CJ, 47 per Brennan J; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 519 per Mason CJ, Dawson, Toohey and McHugh JJ; [1992] HCA 34.]"

And,

"33. It is well established that the circumstances in which proceedings may be found to be an abuse of process are not susceptible of exhaustive definition [Footnote: Ridgeway v The Queen (1995) 184 CLR 19 at 74-75 per Gaudron J; [1995] HCA 66; R v Carroll [2002] HCA 55; (2002) 213 CLR 635 at 657 [73] per Gaudron and Gummow JJ; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 at 265-267 [9]- [15] per Gleeson CJ, Gummow, Hayne and Crennan JJ; [2006] HCA 27.] It is not necessary to consider whether there may be circumstances in which the loss of admissible evidence occasions injustice of a character that would make the continuation of proceedings on indictment an abuse of the process of the court. This is not such a case. The content of the ... [missing evidence] is unknown. In these circumstances it is not correct to characterise ... [its] loss as occasioning prejudice to the respondents. The lost evidence serves neither to undermine nor to support the Crown case. It is to be observed that if the Crown is unable to exclude the hypothesis, that the runway lighting was illuminated as the aircraft moved along it and that it ceased operating coincidentally at the time of take-off, it would fail to establish an element of the principal and the alternative offence."

It could not be established that any prejudice arising from the delay could not be addressed by a direction (para 34, citing Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 34 per Mason CJ, 60 per Deane J, 77-78 per Gaudron J; R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 605 per Mason CJ and Toohey J; [1992] HCA 16; see also Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60).

This case illustrates that more is required for a stay than merely a complaint that evidence that might have assisted the defence is lost. It is not sufficient simply that the evidence would have been relevant to an issue in the case, it needs to be shown that the missing evidence would have tended to establish a proposition that would assist the defence. Loss of the evidence may mean that prosecution evidence is uncorroborated, and the court may properly be cautious for that reason, but that goes to weight. A stay is a drastic remedy and is not given on a whim. As I have noted in relation to risk of unfairness (see, for example, entries for 19 July 2005, 1 May 2006) it is appropriate to look at this as a question of fact rather than as an "evaluation". Is there a real risk that the lost evidence would have had probative value for the defence? In the present case, some evidence that the takeoff had been illuminated by the runway lights would have been needed: the respondents had not given evidence at this pre-trial application. Whether evidence from them would have been enough to give rise to a risk that could not be dealt with by a direction cannot be ascertained from this judgment: the High Court ordered that the application for a stay be dismissed. Could a fresh application based on further evidence be made, or would that be an abuse of process as the applicants have had their opportunity? You decide.

Also decide whether the High Court has inappropriately merged the reluctance of the court to grant a stay with the receptiveness of the court to the risk of unfairness.

Remedies for undue delay

The remedy for undue delay before trial was the subject of Williams v R [2009] NZSC 41.

As would be expected, the Court applied dicta in Attorney-General's Reference (No 2 of 2001) [2004] 2 AC 71 at para 24, and Elaheebocus v The State of Mauritius [2009] UKPC 7 (noted here 2 March 2009).

"Undue" delay means unjustifiable (para 12), and

" ... there is no obligation on any accused to progress matters towards trial, or to protest about delay; the obligation is on the prosecution to ensure trial without undue delay. Whether delay is attributable to the Courts or to the prosecution is irrelevant to the determination of the question of excessive delay, but may be relevant in assessing the validity of any explanation for the delay and (if necessary) what remedy should be granted."

The Court observed that the right to a fair trial and the right to a trial without undue delay are distinct rights but they can overlap. There may be undue delay, requiring a remedy, even though the delay did not affect trial fairness. Therefore, a stay of proceedings is not the automatic remedy for undue delay. It is not even a usual remedy (para 18):

"Staying the proceedings is likely to be the correct remedy only if the delay has been egregious, or there has been prosecutorial misconduct or a sanction is required against a prosecutor who does not proceed promptly to trial after being directed by a Court to do so. If an accused is convicted after being on bail pending trial, a reduction in the term of imprisonment is likely to be the appropriate remedy. If the accused has been in custody, that time will count towards service of the term of imprisonment. In an extreme case, [Footnote: As for example in Darmalingum v The State [2000] 1 WLR 2303 (PC)] the conviction may be set aside. Upon acquittal, monetary compensation may be justified.
The seriousness of the offending will usually not be relevant to the nature of the remedy. If however the offending is well towards the lower end of the scale, that may be sufficient to tip the balance in favour of a stay."

Obviously, where delay (or anything else) leads to an unfair trial a stay (or on appeal the quashing of a conviction) would be necessary.

In Williams the reduction of sentence was the appropriate remedy for the undue delay.

Knowledge of circumstances

Knowledge of circumstances was required as a matter of statutory interpretation in Flores-Figueroa v United States [2009] USSC No 08-108, 4 May 2009. It was necessary that a person who used false identification numbers knew that they identified another person. The statutory language contained the phrase "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person": 18 U. S. C. §1028A(a)(1).

The Court was unanimous in the result, although Scalia J and Alito J in separate judgments were concerned that Breyer J (joined by the others) was making a new rule of interpretation involving the application of adverbs. However, Breyer J acknowledged Alito J's concern and recognised the importance of context. Even so, there were no examples that the Government could cite in support of its approach. This was a case of normal English usage being applied.

There is no discussion here of what "knowledge" means. Does it include suspicion, wilful blindness, belief, doubt? Usually mens rea includes recklessness, but does it here? Some recognition of the difficulties is apparent from the Government's argument, noted at p 10 slip op., mentioning the possibility that the defendant might not care whether the identification he presented belonged to another person, but the Court felt this was not a sufficient argument in this case:

"... in the classic case of identity theft, intent is generally not difficult to prove. For example, where a defendant has used another person's identification information to get access to that person's bank account, the Government can prove knowledge with little difficulty. The same is true when the defendant has gone through someone else's trash to find discarded credit card and bank statements, or pretends to be from the victim's bank and requests personal identifying information. Indeed, the examples of identity theft in the legislative history (dumpster diving, computer hacking, and the like) are all examples of the types of classic identity theft where intent should be relatively easy to prove, and there will be no practical enforcement problem. For another thing, to the extent that Congress may have been concerned about criminalizing the conduct of a broader class of individuals, the concerns about practical enforceability are insufficient to outweigh the clarity of the text."

This seems to support knowledge meaning actual knowledge.

Scalia J disliked Breyer J's use of what we usually call Parliamentary materials (legislative materials in the USA) or legislative history:

"Relying on the statement of a single Member of Congress or an unvoted-upon (and for all we know unread) Committee Report to expand a statute beyond the limits its text suggests is always a dubious enterprise. And consulting those incunabula with an eye to making criminal what the text would otherwise permit is even more suspect. See United States v. R. L. C., 503 U. S. 291, 307–309 (1992) (Scalia, J., concurring in part and concurring in judgment). Indeed, it is not unlike the practice of Caligula, who reportedly "wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people," 1 W. Blackstone, Commentaries on the Laws of England 46 (1765)."

However Breyer J had found the legislative history inconclusive.

Contradicting the snitch

If improperly obtained evidence is inadmissible in chief, is it necessarily inadmissible in cross-examination?

In Kansas v Ventris [2009] USSC No 07-1356, 29 April 2009, the Court held (7 – 2) that an improperly obtained statement, from a jailhouse informant where the breach was of the Sixth Amendment right to counsel, which the prosecution conceded was inadmissible in chief, could be used in cross-examination to impeach the accused's inconsistent testimony.

This was on the basis, as Scalia J delivering the opinion of the Court (joined by Roberts CJ, Kennedy, Souter, Thomas, Breyer and Alito JJ) put it, that

"Our precedents make clear that the game of excluding tainted evidence for impeachment purposes is not worth the candle. The interests safeguarded by such exclusion are "outweighed by the need to prevent perjury and to assure the integrity of the trial process." Stone v. Powell, 428 U. S. 465, 488 (1976). "It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can provide himself with a shield against contradiction of his untruths." Walder, supra, [Walder v. United States, 347 U. S. 62, 65 (1954)] at 65. Once the defendant testifies in a way that contradicts prior statements, denying the prosecution use of "the traditional truth-testing devices of the adversary process," Harris, supra,[Harris v. New York, 401 U. S. 222, 225–226 (1971)] at 225, is a high price to pay for vindication of the right to counsel at the prior stage."

So, that's the rule. Scalia J, perhaps a little inconsistently, disavowed any rule-making function for the Court in his final footnote:

"Respondent's amicus insists that jailhouse snitches are so inherently unreliable that this Court should craft a broader exclusionary rule for uncorroborated statements obtained by that means. Brief for National Association of Criminal Defense Lawyers 25–26. Our legal system, however, is built on the premise that it is the province of the jury to weigh the credibility of competing witnesses, and we have long purported to avoid "establish[ing] this Court as a rule-making organ for the promulgation of state rules of criminal procedure." Spencer v. Texas, 385 U. S. 554, 564 (1967). It would be especially inappropriate to fabricate such a rule in this case, where it appears the jury took to heart the trial judge's cautionary instruction on the unreliability of rewarded informant testimony by acquitting Ventris of felony murder.[ He was convicted of aggravated burglary and aggravated robbery.]"

Stevens J (joined by Ginsburg J) dissented. He repeated his reasons for dissent in Michigan v Harvey, 494 U.S. 344 (1990).

On the topic of whether judges should adhere to earlier dissents, see blogs for 19 January 2007 and 16 January 2009.

He reasoned that the state's use of the improperly obtained evidence compounded the violation and promoted "shabby" police tactics.

This case is a reminder that an application to have evidence admitted may be renewed. The interests in using improperly obtained evidence in chief might not be the same as the interests in using it in cross-examination.

In New Zealand, our Evidence Act 2006 is silent on this point, but it does allow the use of voir dire evidence in cross-examination if the witness gives evidence that is inconsistent with evidence he gave at voir dire: s 15. Note s 90(1) and (2) which prohibit the use of inadmissible documents in questioning witnesses. At common law, use of an inadmissible statement in cross-examination was not permitted: Wong Kam-Ming v The Queen [1980] AC 247. In R v Ryland 17/4/02, CA389/01 the Court referred to such a confession being "inherently inadmissible", contrasting it to evidence which had earlier in the trial lacked an evidential foundation for its relevance but which subsequently became relevant.

Oops!

Firing a gun during the commission of a crime can increase the minimum sentence. What if the firing was accidental – does the minimum apply?

In Dean v United States [2009] USSC No 08-5274, 29 April 2009 this question divided the United States Supreme Court in its interpretation of 18 U. S. C. §924(c)(1)(A), which, as summarised by Roberts CJ (joined by Scalia, Kennedy, Souter, Thomas, Ginsburg and Alito JJ):

"... criminalizes using or carrying a firearm during and in relation to any violent or drug trafficking crime, or possessing a firearm in furtherance of such a crime. An individual convicted of that offense receives a 5-year mandatory minimum sentence, in addition to the punishment for the underlying crime. §924(c)(1)(A)(i). The mandatory minimum increases to 7 years "if the firearm is brandished" and to 10 years "if the firearm is discharged."

Plainly, a question of statutory interpretation. Should the common law presumption of mens rea (Morissette, 342 U. S., at 251–254, Staples, 511 U. S., at 606–607) apply to the sentencing regime? Stevens J, dissenting, thought so, and Breyer J, also dissenting, agreed. For Breyer J it was particularly important that excluding the offender from the minimum sentence would not prevent the judge from imposing a sentence close to that if the circumstances warranted. But to include the accidental shooter in the minimum regime prevents judges from making appropriate allowances. This, said Breyer J, made the rule of lenity decisive: if the legislature wanted to include accidental firing in the minimum sentence category it should have so specified.

Stevens J said that the history of the legislation indicated that intent was required, and that the majority, in arguing that there are examples of accident being inculpatory, such as the felony-murder rule, neglects to notice that in those examples harm is actually caused, whereas here it wasn't.

Roberts CJ for the majority noted that the legislation did not limit itself to intentional discharges, that it used the passive voice, which supported an inference of absence of intent, that other parts of the statute referred to intent, so its omission here was significant, that it is not unusual for the law to impose liability for the unintended consequences of unlawful acts, that the sentence enhancement regime reflects the risk of harm, and that the rule of lenity was excluded by the statutory text and structure.

The case illustrates the choices between techniques of statutory interpretation and common law presumptions. The choice between these must be based on policy, yet when the Court gives voice to a policy argument (the sentencing enhancement reflects the increased risk of harm) that is unconvincing because the same risk applied lower down the regime, at the 7 year level.

Criminal proceeds recovery and proof of offending

Even as we in New Zealand eagerly await 1 December 2009, when the new Criminal Proceeds (Recovery) Act 2009 will commence, a question about its meaning has become apparent. This question occurs to readers of R v Briggs-Price [2009] UKHL 19 (29 April 2009).

Our new legislation will replace that which exists. It will deal with forfeiture of two kinds: forfeiture of instruments used to commit qualifying offences, and forfeiture of proceeds of significant criminal activity. Proceeds are of two kinds: assets and profits.

To see the difficulty that Briggs-Price suggests, consider the provision for an order for forfeiture of profits, s 55:

"55 Making profit forfeiture order

(1) The High Court must make a profit forfeiture order if it is satisfied on the balance of probabilities that—

(a) the respondent has unlawfully benefited from significant criminal activity within the relevant period of criminal activity; and

          (b) the respondent has interests in property."

The civil standard of proof applies to "has unlawfully benefited", but does it also apply to "from significant criminal activity" (an expression which the Act defines)?

It was argued for the appellant in Briggs-Price that the Crown should be required to prove beyond reasonable doubt the commission of particular qualifying offences when it relies on this sort of approach to forfeiture. Otherwise, the presumption of innocence would be breached.

The House of Lords split 3 – 2 on this, although they were unanimous in dismissing the appeal. That split alone is reason to avoid the same argument here by an amendment to make the point clear. I should acknowledge that the legislative intent was probably to apply the civil standard, not the criminal standard, and that is the natural meaning of the provision, and it conforms to the minority opinions in Briggs-Price. Certainly, the Parliamentary intent was to make the obtaining of a conviction unnecessary, as the Explanatory Memorandum accompanying the Bill (in 2006) stated.

Lords Rodger, Brown and Neuberger held that the criminal standard applied, and Lords Phillips and Mance would have applied the civil standard.

Lord Rodger held that if the criminal standard did not apply, "... the Crown could ask the court to make a confiscation order on the basis of an alleged benefit from a specific offence of which the defendant would have been acquitted if he had been prosecuted for it." (77)

Lord Brown held that art 6(2) of the ECHR was engaged (95), and that although Geerings v Netherlands (2007) 46 EHRR 1222 applied (pursuant to which the criminal standard of proof had to be met) it was satisfied here because the Judge had found beyond reasonable doubt that the relevant criminal activity had occurred.

Lord Neuberger agreed (136) with Lord Rodger. The relevant UK legislation is referred to by Lord Phillips at para 5 – 7. It carries the same ambiguity as the New Zealand provision set out above, as s 2(8) of the Drug Trafficking Act 1994[UK] provides:

"The standard of proof required to determine any question arising under this Act as to–

(a) whether a person has benefited from drug trafficking, or

(b) the amount to be recovered in his case by virtue of this section,

shall be that applicable in civil proceedings."

Note that this clearly applies to "benefited" and to "amount", but is not clear on whether it applies to "from drug trafficking".

Injustice, oppression, flight and extradition

Injustice and oppression as grounds for resisting extradition were considered in Gomes v Trinidad and Tobago [2009] UKHL 21 (29 April 2009).

The precedent is Lord Diplock's statement in Kakis v Cyprus [1978] 1 WLR 779 (HL):

"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from change in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair."

How much risk of unfairness is sufficient to create injustice sufficient to resist an order for extradition? The focus is on the proposed trial in the requesting state. The court must decide whether that trial carries an unacceptable risk of unfairness.

Does the court in the requested state have to decide what the court in the requesting state would decide about fairness?

Or, should the court of the requested state make its own assessment of the fairness of the proposed trial in the requesting state?

And, either way, what is the relevance of unfairness of the accused's own making? Is a trial unfair regardless of who caused the unfairness, or is a trial "fair" even if some unfairness to the accused was brought about by his conduct?

Is the "justice" of extradition the same sort of concept as the "fairness" of the proposed trial?

Without looking at the answers, one might think that the court in the requested country should make its own assessment of the risk of what it understands to be an unfair trial, and that for extradition to be refused this risk should be at least the same as that which would be sufficient to stay the proceedings in the requested country. And, unfairness is unfairness, no matter who caused it.

Logical as those suggestions might be, policy requires a different approach.

In Gomes the Report of the Appellate Committee, written by Lord Brown, holds that Lord Diplock had correctly stated the law when he said, following the passage quoted above,

"Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them."

Additional delay due to the dilatoriness in the requesting state will only be relevant in borderline cases where the accused is not responsible for any delay (27). The blameworthiness of the requesting state is not a matter that will normally be considered, because the accused gets the benefit of any delay that is not his fault (28).

The test for oppression will not easily be satisfied (31), and injustice has to be established in the way held in Woodcock v New Zealand [2004] 1 WLR 1979, as approved by Lord Bingham for the Board in Knowles v US [2007] 1 WLR 47 (PC):

"First, the question is not whether it would be unjust or oppressive to try the accused but whether . . . it would be unjust or oppressive to extradite him (para 20). Secondly, if the court of the requesting state is bound to conclude that a fair trial is impossible, it would be unjust or oppressive for the requested state to return him (para 21). But, thirdly, the court of the requested state must have regard to the safeguards which exist under the domestic law of the requesting state to protect the defendant against a trial rendered unjust or oppressive by the passage of time (paras 21-22). Fourthly, no rule of thumb can be applied to determine whether the passage of time has rendered a fair trial no longer possible: much will turn on the particular case (paras 14-16, 23-25). Fifthly, 'there can be no cut-off point beyond which extradition must inevitably be regarded as unjust or oppressive' (para 29)."

The first point separates the question of fairness of the proposed trial from the justice of extradition. The second makes relevant the likely view of the court in the requesting state of the fairness of the proposed trial, so that extradition is barred if that court would be bound to conclude the trial would be unfair. Third, the law of the requesting state as to whether the trial would be unjust or oppressive, must be considered.

Gomes holds that the essential question is whether a fair trial would be impossible (33) [Compare USA v Barnette noted here 27 August 2004: a flagrant or gross risk of unfairness will be sufficient to prevent extradition.] Does that mean that a high likelihood of trial unfairness would be insufficient to prevent extradition? Of course the court in the requesting state would stay the proceedings if the risk of unfairness was unacceptably high according to the standards applicable in the law of that state. That is where the third point quoted above comes into play. It may be that the standards applicable in the requesting state would be unacceptable in the law of the requested state. If they were, extradition would be refused.

Does Gomes mean that in UK law, if an accused is responsible for delay which prejudices his ability to present a defence, the trial must proceed even though it would be unfair? Can the right to a fair trial be waived? Perhaps it can, but to the contrary, see R v Coutts [2006] UKHL 39, noted here 21 July 2006. In Coutts, fairness required an alternative verdict be left to the jury, and the accused could not decide that that should not be done. This was not discussed in Gomes.

“the kingdom would come to confusion”

The interpretation of legislation can, on rare occasions, be assisted by reference to information about the creation of that legislation. Even so, there is reluctance to have resort to such material, as can be seen from R v JBT [2009] UKHL 20 (29 April 2009).

Here there was statutory ambiguity. Until the ambiguity was pointed out, almost everyone had thought the age of criminal responsibility had been made 10 years or more, by s 34 of the Crime and Disorder Act 1998[UK]:

"Abolition of rebuttable presumption that a child is doli incapax

The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is hereby abolished."

Very good. Bring them within the loving embrace of the youth justice system.

But did abolition of the presumption of incapacity mean that the defence was also abolished: couldn't the child adduce evidence to prove "I was too immature to understand that what I did was seriously wrong"?

Lord Phillips felt that the statute did not provide sufficient assistance to determine this issue, so he canvassed the history of the common law from Hale (1778 ed) through the legislation and the progress of the current provision through Parliament.

The other Law Lords concurred, but adding that they wouldn't have referred to Hansard. Lord Phillips had found Hansard helpful, for an amendment which addressed the issue unambiguously had been withdrawn in the Lords once and later, when reintroduced, had been defeated. That amendment, moved by Lord Goddard QC, was based on the assumption that the Bill in question was designed to abolish doli incapax completely (both as rule and presumption).

Lord Rodger did not explain how he would have reached the same result as did Lord Phillips without reference to Hansard, but he agreed that the passages referred to put the position beyond doubt. Lord Carswell would have got there by "construction of the section and taking account of the mischief and of the consequences of the legislation" (39), but he also felt that this was a legitimate case in which to take into account the Parliamentary materials, recognising the change in approach to such that was effected in Pepper v Hart [1993] AC 593. Lord Brown agreed that the reference to Lord Goddard QC's proposed amendment was helpful, and he mentioned the use of reference to unsuccessful amendments by Lord Nicholls in R (Jackson) v Attorney General [2006] 1 AC 262, 292. Lord Mance agreed with everyone.

In New Zealand there have been proposals to formalise reference to Parliamentary materials as aids to interpretation of legislation, but these have not been included in the current Interpretation Act 1999. The governing provision is s 5:

"Ascertaining meaning of legislation

(1) The meaning of an enactment must be ascertained from its text and in the light of its purpose.

(2) The matters that may be considered in ascertaining the meaning of an enactment include the indications provided in the enactment.

(3) Examples of those indications are preambles, the analysis, a table of contents, headings to Parts and sections, marginal notes, diagrams, graphics, examples and explanatory material, and the organisation and format of the enactment."

Nevertheless, judges do refer to Parliamentary materials: eg R v Law (2002) 19 CRNZ 500 (HC) at para 24, R v Oran (2003) 20 CRNZ 87 (CA) at para 18.

Cut-throat issues

In Jones v R [2009] HCA 17 (29 April 2009) some interesting issues were mentioned, but they did not need to be decided. They concern the use by one accused of evidence of the propensity of a co-accused.

In this case the proposed evidence was inadmissible as hearsay, and for that reason – together with an error at trial on another point being insignificant – the appeal was dismissed.

Hayne J, in a judgment concurring with that given by the other members of the Court, highlighted the issues for future consideration (37); in summary these are:

• Is it necessary that the co-accused has put his character in issue before the accused can adduce evidence of his propensity?
  

• How to manage the risk of the trial being diverted into collateral issues about the nature, extent and probative value of the evidence of those propensities.

• Should the rule in R v Pfennig (1995) 182 CLR 461; [1995] HCA 7 apply, or would it lead to diversion of the kind just mentioned?
  

• When should a ruling that such propensity evidence is admissible be followed by an order for separate trials?
   

The Pfennig point concerns whether propensity evidence should be governed by the same admissibility requirements as similar fact evidence, especially the need for "striking similarity" and the improbability of an innocent explanation for the apparent link it is sought to establish.

The recent reforms of the law of evidence in New Zealand have provided a framework for addressing these issues. Section 42
Evidence Act 2006 deals with propensity evidence about co-defendants. When will the judge permit the evidence under s 42(1)(b)? Presumably some regard would be had to matters such as those specified in s 43(3) which apply when the prosecution seeks to adduce propensity evidence. The danger of prejudice to the co-defendant has to be considered under s 43(4), and a similar consideration should apply under s 42(1)(b), although in any event the general discretion to exclude unfairly prejudicial evidence pursuant to s 8 would apply to s 42(1)(b).

There is no need for the co-accused to have put his character in issue before the accused may adduce evidence of his propensity. Collateral issues would have to be managed under the requirements of relevance (s 7), prejudice and fairness. There is no requirement of "striking similarity", merely a "tendency to show" a propensity (s 40(1)), and for the common law, see R v Holtz [2003] 1 NZLR 667; (2002) 20 CRNZ 14 (CA). As there is nothing to exclude it, the hearsay rule applies to propensity evidence.

Search incidental to arrest

An interesting aspect of Arizona v Gant [2009] USSC, No 07-542, (21 April 2009) is the omission of any reference to Herring v United States [2009] USSC, No 07-513, (14 January 2009), noted here 15 January 2009.

Gant rejects a broad reading of the Supreme Court's decision in New York v. Belton, 453 U. S. 454 (1981) which had applied an assumption that things in the vehicle were accessible to the person arrested.

The topic is the police power to search a vehicle incident to the arrest of an occupant. Gant holds that the vehicle may be searched when it is reasonable to believe that evidence of the offence for which the person was arrested might be found in the vehicle. It also holds that, since the power of search incident to arrest has the purpose of preventing the arrested person accessing weapons or destroying evidence, the search may only be of areas within the arrested person's immediate control. When the arrested person has been secured and cannot access the interior of the vehicle, a vehicle search incident to arrest is not authorised.

In Gant the search was unreasonable. Mr Gant had been arrested for driving with a suspended licence (or, as they spell it, license) and had been handcuffed and placed in the back of a patrol car. His car was then searched and a bag of cocaine was found in the pocket of a jacket which was on the back seat. The US Supreme Court held 5 – 4 that the Arizona Supreme Court had correctly held that the search was unjustified. That Court had held that the trial court should have suppressed the evidence.

In Herring, the Supreme Court held that the fact that a search was unreasonable does not mean that the exclusionary rule necessarily applies: exclusion depends on whether the efficacy of deterrence of official misconduct outweighs the substantial cost of letting guilty defendants go free. This issue was not argued on this appeal.

One can readily imagine that evidence of a really serious crime might be found as a result of an unreasonable search of a vehicle following the arrest of an occupant for a relatively minor matter. Automatic exclusion would be absurd in those circumstances. The issue of admissibility is distinct from the issue that was argued here – the constitutionality of the search.