Sounds and unsoundness

A policeman thought he could hear a confessional statement on a recording of a telephone call made by the accused to emergency services. Experts agreed that they could not assist the jury as to whether or not those sounds were words or excited breathing. Amazingly, the trial judge, and three Court of Appeal judges, ruled that the jury could listen to the disputed sounds. The Supreme Court unanimously ruled the sounds inadmissible: Bain v R [2009] NZSC 16 (18 May 2009; judgment published 11 June 2009).

Three Supreme Court justices held that the sounds were not shown to be relevant: Elias CJ and Blanchard J jointly, Wilson J agreeing. McGrath and Gault JJ thought the sounds were relevant. All judges held that, if relevant, the sounds were inadmissible because their probative value was outweighed by their illegitimately prejudicial effect.

Probative value

If the sounds were relevant, that would mean they had a tendency to prove a matter in issue: s 7 Evidence Act 2006. What then would their probative value be? One would think that, if they were confessional words, their probative value would be very great. Indeed, the Court of Appeal thought the sounds were "plainly relevant" as if their probative value was equally plain: Bain v R [2009] NZCA 1 (30 January 2009) at para 255.

In the Supreme Court the probative value of the sounds was unanimously regarded as slight. Equivalent, for Gault J (103), to the mere possibility that jurors might, without priming, hear the disputed sounds as the alleged words. Wilson J (94) said the probative value was "very limited" because of the uncertainty about whether the sounds were words and if they were, what words they were, and because of the risk of priming. This reasoning seems to amount to saying that the probative value was slight because of the risk of prejudice, which is to blend the separate issues. McGrath J was clearer on probative value (83):

" ... the uncertainty of the conclusions of the expert witnesses, which are reached because of the limited audibility and indistinctness of the sounds themselves, impacts on their probative value and lessens the weight of the recordings as evidence of an admission in the balancing exercise."

Strange to say, however, McGrath J had used the opposite reasons to decide that the sounds were relevant (79):

"...I am satisfied that the disputed material is reasonably capable of influencing a jury's assessment of the probability of the existence of a disputed fact at the trial and that it meets the test of relevance in terms of s 7 of the Evidence Act."

Elias CJ and Blanchard J held (66) that the probative value of the sounds was slight, when contrasted with the prejudicial effect of the evidence. They considered the probative value was insufficient for the same reasons they held that the sounds were not relevant. These were (59) that the experts could not say whether or not the sounds were words or if they were, what they were. No standard of proof is mentioned for the weighing exercise in s 8(1), but Elias CJ and Blanchard J found (62 – 66) that some analogy could be obtained from s 28 (exclusion of unreliable statements) where the judge has to be satisfied on the balance of probabilities that the circumstances were not likely to have adversely affected the reliability of the statement, s 45 (visual identification evidence) where such evidence obtained at a properly conducted formal procedure is admissible unless the defence proves on the balance of probabilities that the evidence is unreliable, and s 46 (voice identification) where the prosecution must prove on the balance of probabilities that the evidence is reliable.

Prejudicial effect

The prejudicial effect could be "profound" Elias CJ and Blanchard J (67). Even if they decided the sounds were not words, or not the words alleged, the jury could still be influenced by the suggested interpretation in their assessment of other evidence. The judge would have to direct the jury that it would be dangerous to rely on the sounds as a confession. So, the only effect of their admission could be prejudicial.

McGrath J considered (85) that the source of the prejudicial effect was the risk that priming by suggestion would lead the jury to misinterpret the sounds and give them more weight than they deserved. This is not a case where the sounds are to be interpreted in the light of other circumstantial evidence (87). The jury could be diverted to "superficial reasoning" (88).

Wilson J regarded the prejudicial effect as "very great" (94, 96). If the jury decided the sounds were confessional words, that is all the evidence they would need to convict (94). The risk of priming by suggestion was too great.

Relevance

This was the issue on which the Court split 3 – 2. The governing provision is s 7 Evidence Act 2006.

Elias CJ and Blanchard J regarded the case as best decided under s 7, rather than under s 8. For the sounds to be relevant it was necessary that they could reasonably be taken to be speech of a confessional nature (53), because otherwise they would not tend to prove the matter for which they were put forward. Here, the experts' evidence was that the sounds were not reasonably capable of being such a statement (59).

Wilson J agreed (90), although he thought the threshold for establishing relevance was low. He did not say he disagreed that the interpretation suggested by the party seeking to adduce the evidence had to be reasonably available, and he applied that reasonability criterion in concluding that the evidence was not relevant here (92).

Gault J thought the evidence was relevant (101), as s 7 does not contain a threshold of the balance of probabilities (99). McGrath J also thought the sounds were relevant, noting that probative force is immaterial to relevancy, but there must be the tendency to prove the matter in issue. He took a different interpretation of the expert evidence:

"[79] ... The expert evidence supports the proposition that the sounds may be an exhalation of breath containing the incriminating words as speech intended to be sotto voce. A jury would find contextual assistance in determining if this was so from another section of the tape, which records what are plainly words spoken in conjunction with an audible exhalation."

Hummmm ... my assessment

• The ratio is correct: the s 7(3) requirement of a tendency to prove or disprove anything that is of consequence to the determination of the proceeding means the judge must conclude that the inference could reasonably be drawn if the evidence is to be admitted as relevant (43, 44).
  
• The Court's application of this ratio to the facts was correct.
  
• The Court was wrong to apply s 8: there was no need to do so. All the matters considered in purporting to apply s 8 were actually matters applicable to deciding relevance.
  
• In proceeding to consider what it would have decided if the evidence was relevant, the majority introduce confusion by failing to appreciate the implications of a decision that the evidence was relevant.
  
• If the evidence was relevant, it would have been reasonable support for an inference of guilt. That is, the jury would have assessed the evidence reasonably if it concluded that the sounds were a confession.
  
• If reasonably assessed as a confession, the probative value of the sounds would have been very high. There were no circumstances indicating that the confession was improperly obtained or was unreliable. The unfair prejudice in admitting it would have been zero: there was no risk that it would be used for an improper purpose or would cause the jury to reason wrongly. (I am not saying I think the probative value was high: the sounds were irrelevant and had no probative value.)
  
• As soon as one says no, the probative value was low because of the difficulty in hearing the sounds as words, one goes back, undermining the assumption that the evidence was relevant.
  
• Applying s 8 to this evidence has clouded the meaning of probative value and unfair prejudice. Those concepts apply once it is known what the evidence is; here the difficulty is prior to that, in determining what the evidence is.
  
• The joint judgment's reference (63) to analogous provisions that use the balance of probabilities in the decision process gives the impression that something similar should apply to the s 8 decision. Usually an omission of a phrase used in other parts of a statute would be regarded as deliberate. The balance of probabilities fits uneasily in s 8, because it suggests a high level of risk of unfair prejudice may be required.
  
• Footnote 60 of the joint judgment refers to s 8(2), which is expressed as a qualification on the probative value – unfairly prejudicial effect weighing exercise in s 8(1)(a). Its meaning is obscure, although Elias CJ and Blanchard J adopt the Law Commission’s commentary and treat s 8(2) as introducing a limit on the calling of defence evidence. That, however is far from clear, because s 8(1)(b) can serve that function. Indeed, s 8(2) is best regarded as a reminder that in exercising the discretion in s 8(1)(b) the judge must remember that the defendant has the right to offer an effective defence. Unfortunately s 8(2) expressly addresses the probative value against unfairly prejudicial effect weighing exercise required by s 8(1)(a), and the footnote attempts an impossible task when it tries to make sense of this by saying, “Under the Evidence Act the right of the accused to present evidence as part of his case is not absolute but is simply a factor to be considered in balancing probative value against unfairly prejudicial effect in excluding relevant evidence.” [Update: the role of s 8(2) was clearer in argument, transcript Bain v R SC13/2009 2 March 2009, pp 48-49, where it was submitted that the right to present a defence is relevant to assessing the risk that evidence will be improperly prejudicial. Elias CJ thought this might be “doubling up” on s 8(1), but then she accepted that s 8(2) is not expressed as a stand-alone provision.]
  
• The Court was right to decide the admissibility of the sounds without listening to them. The role of an ultimate appeal court is with law and policy, as was pointed out recently by Lord Hope in Secretary of State for the Home Department v AF (noted 11 June 2009) at para 88; there, the Law Lords dealt with the disclosure of closed evidence without knowing what it was.

Strasbourg reigns

Obedience to Strasbourg's Grand Chamber has led the House of Lords to correct itself: Secretary of State for the Home Department v AF [2009] UKHL 28 (10 June 2009).

The result is that there is now a rule (not a discretion) at common law which is that it is never fair to base a decision "solely or to a decisive degree" on material that has not been disclosed to the party adversely affected.

Previously, the House of Lords had recognised that there might be some cases where decisions could fairly be based "solely or to a decisive degree" on closed material: Secretary of State for the Home Department v MB [2008] 1 AC 440. This was on the basis that in such cases the closed evidence was so compelling that the tribunal could safely conclude that no answer to it was possible. This was the "makes no difference" principle.

The Grand Chamber approached the absolute requirement of fairness differently in A v United Kingdom [2009] ECHR 301 (noted here 22 February 2009). The rule laid down there is that sufficient information must be disclosed to enable the defendant to give effective instructions to meet the allegations.

Nine Law Lords considered the appeals in the present case, and the decision was unanimous. The House of Lords was obliged to follow the European Court of Human Rights. Lord Phillips delivered the leading opinion. Lord Hope noted (86) that there is a distinction between disclosing the allegations and disclosing their source (the former being required by the rule, not the latter), while recognising that details will often matter and that the system may be unsustainable. Lord Scott (95) said that Parliament could provide for procedures that overrode the right to a fair hearing, but he accepted that the reading down of the relevant statute (to make it subject to the requirements of fairness) was appropriate here. Lord Hoffmann wondered (74) about the limits of the idea that some guilty people might have to go free to protect the right to a fair hearing, and Lord Brown noted (121) that in some cases national security may have to give way to that right.

Lord Phillips said (64) that the best way to produce a fair hearing is to ensure the fullest disclosure. Whereas the earlier Strasbourg approach had been less stringent (Chalal v United Kingdom (1996) 23 EHHR 413, 131) was that the minimum requirement was "a substantial measure of procedural justice",

"65 ... The Grand Chamber has now [in A v United Kingdom] made clear that non-disclosure cannot go so far as to deny a party knowledge of the essence of the case against him, at least where he is at risk of consequences as severe as those normally imposed under a control order." [emphasis added]

But fairness in the context of control order proceedings (s 2 Prevention of Terrorism Act 2005[UK]) may not import the same requirements as fairness in the context of a criminal trial, as Lord Phillips pointed out in the following reference to R v Davis (noted here 19 June 2008):

"66. In A v United Kingdom the Strasbourg court has nonetheless recognised that, where the interests of national security are concerned in the context of combating terrorism, it may be acceptable not to disclose the source of evidence that founds the grounds of suspecting that a person has been involved in terrorism-related activities. In the light of this it should occasion no surprise that no counsel suggested that the decision of this House in R v Davis [2008] UKHL 36; [2008] 1 AC 1128 in relation to witness anonymity in criminal trials should be applied in the context of control order proceedings." [emphasis added]

But it hardly seems likely that the nature of the proceedings can determine whether the "essence" of the case includes "the source" of the information.

Whatever the nature of the proceedings, it should be possible to say whether they are based "solely or to a decisive degree" on the information which the prosecution seeks to suppress. This is apparent from Lord Hoffmann's overview (71):

"The difference between the rule laid down by the ECtHR and what I had previously thought to be the law of England is that the Strasbourg court has imposed a rigid rule that the requirements of a fair hearing are never satisfied if the decision is "based solely or to a decisive degree" on closed material, whereas the view expressed by a majority of your Lordships' House in Secretary of State for the Home Department v MB [2008] 1 AC 440 was that even in such a case, substantial justice might still be possible. As I understand the views expressed by judges of the Special Immigration Appeals Commission since MB's case, it is not unusual for the Commission to base its decision "to a decisive degree" on closed material and nevertheless to be satisfied, from the nature of that material, that the applicant has had a fair hearing."

A bit about David Bain’s retrial

The right tribunal

Last month was the fourteenth anniversary of the start of David Bain's first trial for murdering his parents, two sisters and brother. Last Friday he was acquitted on all charges. Judicial resistance to the idea that fresh evidence was sufficient to cast doubts on the guilty verdicts at his first trial was broken by the Privy Council on 10 May 2007.

It seems quite unlikely that without the availability of an appeal to the Privy Council the convictions would have been quashed. The Supreme Court of New Zealand, which now exercises that appellate jurisdiction, was created by promoting judges from the Court of Appeal. The Court of Appeal considered Mr Bain's case three times, and these are summarised by Lord Bingham ([2007] UKPC 33).

The faulty approach to determining whether a substantial miscarriage of justice had occurred because of the absence of the fresh evidence at the trial was so deeply ingrained in the way judges were thinking that even Sir Thomas Thorp, an advocate of protections against wrongful convictions, considered there had not been a miscarriage in Mr Bain's case.

I have noted the way the Privy Council corrected the Court of Appeal's approach (see second entry for 11 May 2007). In subsequent cases the Court tends to refer to the Privy Council decision – if at all – only to the extent that it approved the Court's statement of the law (a matter that was never in issue: it was the application of the law that was faulty). It cites its own judgment ([2004] 1 NZLR 638) for that statement of the law, without mentioning its error. See, for example, R v Morrice [2008] NZCA 261, R v Kingi [2008] NZCA 195, and R v F (CA300/08) [2009] NZCA 177. An obvious question for students is, has the Court's approach changed since the Privy Council's decision?

This is not to say that the Supreme Court is incapable of overturning any Court of Appeal decision in this case. In upholding an appeal against a pre-trial admissibility ruling, the Supreme Court has given itself the opportunity to clarify the law on s 8 Evidence Act 2006, which concerns the discretion to exclude evidence where its probative value is exceeded by the illegitimately prejudicial effect of admitting it. Judgment pending. [Update: see note for 12 June 2009]

Transposition of the conditional

Any sensible person will leave the decision on guilt or innocence to the jury. The only aspect of Mr Bain's recent trial that I mention here is an amusing example of a fallacy. A defence expert had given evidence about the death of David Bain's father, Robin Bain, who had died from a rifle shot to the left temple. Robin Bain was right-handed. The witness had said that this was not inconsistent with suicide. In cross-examination (according to the news media) the prosecutor had asserted that, as only about 3% of right-handed people who commit suicide by gunshot shoot themselves in the left temple, it was most unlikely that Robin Bain had committed suicide.

This error of logic is sometimes called the prosecutor's fallacy. But anyone can make it. It is a transposition of the conditional. The probability of suicide, given a wound to the left temple, is not the same as the probability of a wound to the left temple, given suicide. The former is about wounds to the left temple, and the latter is about suicides.

This is obvious from a simpler example (being a NZer, I take sheep ...): the probability of an animal having four legs, given that it is a sheep, is not the same as the probability of it being a sheep, given that it has four legs. The former is about sheep, the latter is about quadrupeds.

The prosecutor was using a statement about suicides as if it were a statement about left temple wounds. It was the latter that was relevant, not the former.


This is not to say that the evidence (3% of suicides by gunshot are to left temple) was not probative. Its value would be assessed in Bayesian terms by its likelihood ratio: the ratio of the probability of a left temple gunshot, given that this was murder, to the probability of a left temple gunshot, given that this was suicide. The missing information is the occurrence of murders by left temple gunshots.
A false start

According to reports, the judge started summing up the case by saying that the question was, "Was it Robin or was it David?"

That was the question for the police investigation, and for anyone playing detective, but the only question for the jury was, did David do it? Finding David not guilty was not the same as finding that Robin did it. But to find David guilty the jury would have had to exclude a reasonable possibility that Robin did it.

We do not know whether the jury acquitted David because they could not exclude a reasonable possibility that Robin did it, or because they thought it quite likely that Robin did it, or because they thought it more probable than not that Robin did it, or because they were sure Robin did it. Any of those is sufficient to acquit David.

Compensation

David can receive compensation for around 13 years in prison if he can establish on the balance of probabilities that he is innocent.

Another tribunal (probably a QC or SC appointed by the government) will have to decide that. It seems a terrible inefficiency to discard the jury and not to ask for their decision on this.

It is not unusual to have juries grapple with two standards of proof. They do this in drug trials, where possession of a given quantity of drug gives rise to a presumption of purpose of supply, rebuttable on the balance of probabilities.

Having two standards of proof under consideration may help the jury understand the difference between the balance of probabilities and proof beyond reasonable doubt. The first question the jury asked after retiring to consider its verdicts was for clarification of the meaning of reasonable doubt. In accordance with R v Wanhalla – see 25 August 2006 – the judge gave minimal assistance on that.

A juror's experience

For an intelligent description of a juror's experience in this trial, see the report in the New Zealand Herald online, Sunday, June 7 2009, "Bain juror: we were hounded".

Delay: the kinds of prejudice

Prejudice arising from delay was the Supreme Court of Canada's reason for restoring the stay of proceedings that had been entered by the trial judge in R v Godin [2009] SCC 26 (4 June 2009).

There is no discussion in this case of alternative remedies (contrast Williams v R [2009] NZSC 41, noted here 15 May 2009), but what is of interest is the analysis of prejudice:

"[30] Prejudice in this context is concerned with the three interests of the accused that s. 11(b)[Canadian Charter of Rights and Freedoms] protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin [1992 CanLII 89 (S.C.C.), [1992] 1 S.C.R. 771], at pp. 801-3."

As to prejudice to the right to make a full defence, this may not be easy to "quantify", but in any event this sort of prejudice is not essential:

"[38] Moreover, it does not follow from a conclusion that there is an unquantifiable risk of prejudice to the appellant's ability to make full answer and defence that the overall delay in this case was constitutionally reasonable. Proof of actual prejudice to the right to make full answer and defence is not invariably required to establish a s. 11(b) violation. This is only one of three varieties of prejudice, all of which must be considered together with the length of the delay and the explanations for why it occurred."

In this case the delay to trial exceeded the guidelines by over a year, and this was not the fault of the defence. The delay was attributable to the Crown and was unexplained. Defence counsel had sought early dates but his efforts were ignored. The charges were originally going to be prosecuted summarily, but they seem to have been reasonably serious: sexual assault, unlawful confinement, and threatening to kill.

Some delay in disclosure of scientific evidence had occurred:

"[11] ... There is no suggestion that Crown counsel delayed disclosure or was otherwise at fault for this delay. Nevertheless, the resulting delay is attributable to the Crown. It is responsible for bringing an accused person to trial and for the provision of facilities and staff to see that accused persons are tried in a reasonable time: R. v. Askov, 1990 CanLII 45 (S.C.C.), [1990] 2 S.C.R. 1199, at p. 1225. The Crown bears the burden of explaining unusual delays caused by the forensic investigators. It offers no explanation in this case."

This late disclosure led to additional delay as it was agreed that the prosecution should re-elect to proceed by indictment to give the defence time to investigate resulting inconsistencies with the complainant's statement. It was the delay in scheduling the preliminary hearing that defence counsel had endeavoured, without response, to avoid.

The availability of a stay of proceedings may vary between legal systems. It is easy to imagine a court saying, in a case like this, that the seriousness of the charges made the public interest in proceeding outweigh the breach of the accused's right to trial within a reasonable time, and his interests could be met by a reduction in sentence in the event of conviction, or by payment of compensation in the event of acquittal, especially because (although this point may not have applied in Godin) a fair trial was still possible.

Disobedient dissenters!

Again, final appellate judges refuse to obey the law and repeat their dissenting views in subsequent cases: R v Craig [2009] SCC 23, R v Ouellette [2009] SCC 24, and R v Nguyen [2009] SCC 25 (all 29 May 2009).

In the lead case, Craig, dissents were delivered by LeBel J, Fish J, and jointly by McLachlin CJ and Rothstein J. The same issues were addressed in Ouellette and Nguyen.

One would think (see notes for 19 January 2007, 16 January 2009 and 4 May 2009) that the dissenters would correctly identify the ratio of Craig and apply it in the subsequent cases. Instead, they repeated their reasoning by reference to what they had decided in Craig.

There was no suggestion that the decision in Craig was being considered with a view to its being overturned. If there had been such a suggestion, it would have been proper for the dissents to be raised again.

It must be confusing for law students to see appellate judges doing this. In Ouellette and Nguyen the dissenting reasons have absolutely no legal value: no lower court can follow them without misapplying Craig.

The cases concern the Controlled Drugs and Substances Act, S.C. 1996, c.19, particularly ss 16 and 19.1. Craig holds that forfeiture and sentencing are exercises independent of each other, but where forfeiture of real property is being considered, injustice may be avoided if partial forfeiture is ordered, although other options are no forfeiture of full forfeiture.

McLachlin CJ and Rothstein J dissented on the issue of partial forfeiture, holding that it was never available as an option. LeBel J and Fish J each dissented on whether the exercises were separate, holding that a sentencing judge may take into account a punitive forfeiture order.

So, any court that considers partial forfeiture of real property is not available would be contravening Craig. As would a court that thought a sentence should be influenced by the extent of a forfeiture order.

Economy overwhelms the need for a fair trial

Here is another illustration of a divergence of opinion between appellate judges over whether to apply the proviso: R v Van [2009] SCC 22 (28 May 2009).

The proviso permits the court to dismiss an appeal if it considers that an error at trial was not substantial. The meaning of substantial is at the root of the difficulties.

The Supreme Court of Canada split 5 – 4. The minority, in a judgment delivered by newbie Cromwell J, did not discuss the law on the proviso. For the majority, LeBel J (with McLachlin CJ, Deschamps, Abella and Rothstein JJ) summarised the law (34 – 36) as requiring the Crown to establish that the error was of one of two kinds:

1. An error that is harmless on its face or in its effect, in the sense of being trivial, peripheral, or actually favouring the defence. The idea here is that a jury need not be "perfectly" directed, as long as it is "properly" directed (citing Lamer CJ in R v Jacquard [1997] 1 SCR 314 at para 2). These errors are such that if they had not been made any reasonable judge or jury could not possibly have rendered a different verdict.
   
2. An error that, although not minor or not without prejudice to the defence, occurred in a context where depriving the accused of a proper trial is justified (citing Sopinka J in R v S (PL) [1991] 1 SCR 909) and the cost and delay involved in a retrial is avoided (citing Binnie J in R v Jolivet [2000] 1 SCR 751 at para 46). This requires that the Crown case is so strong as to be overwhelming, and in assessing this any possible measure of doubt as to the strength of the prosecution case favours the appellant.
   

 Well, permitting that second type of error is contrary to the widely accepted dictum of Lord Bingham in Randall v R [2002] 1 WLR 2237 at para 28 – mentioned in these notes as recently as 28 May 2009. The Supreme Court of Canada made no reference to fair trial requirements, and its approach is consistent with the view – repulsive to a civilised person - that a guilty accused need not be tried fairly.

Failure of the Supreme Court of Canada to update its jurisprudence on the proviso is important in this appeal because the type of error at trial was of the second kind, as is indicated by the Crown's concession (noted by Cromwell J at 97) that the error was serious.

The better approach to the proviso is to ask whether the error deprived the accused of a fair trial, that is, a trial where the law was correctly applied to facts determined impartially. If the trial was not fair, the appeal must be allowed. If the error did not prevent a fair trial, is there a real risk that it deprived the accused of a more favourable verdict? If there is such a risk, again the proviso cannot be applied.

However, even under this suggested approach, the Court in Van would probably have split on whether the trial had been fair. The minority would still say that the error may have affected the jury's assessment of credibility so that it is impossible to say whether they would have convicted in the absence of the error. The majority would still say that the error would not have affected the jury because they would have thought the witness was referring to his earlier evidence and not to inadmissible hearsay. In reasoning this way the majority sidestep the Crown's concession and treat the error as being of the first kind.

The possibility is that even the best approach to the proviso yet devised will not prevent appellate judges from coming to different conclusions when evaluating the significance of errors. But when they approach their task without a focus on trial fairness they are likely to consider errors insubstantial when the prosecution evidence is strong.

Is a buyer party to the sale?

Abuelhawa v United States [2009] USSC No 08-192, 26 May 2009 deals with whether a buyer of a drug is a party to its sale in a statutory context where the buyer commits a minor offence (or, as they spell it, offense) and the seller a serious offence as indicated by the penalty regime.

Souter J, delivering the opinion of the unanimous Court, said

"Where a transaction like a sale necessarily presupposes two parties with specific roles, it would be odd to speak of one party as facilitating the conduct of the other. A buyer does not just make a sale easier; he makes the sale possible. No buyer, no sale; the buyer's part is already implied by the term "sale," and the word "facilitate" adds nothing. We would not say that the borrower facilitates the bank loan. ...

" ... The traditional law is that where a statute treats one side of a bilateral transaction more leniently, adding to the penalty of the party on that side for facilitating the action by the other would upend the calibration of punishment set by the legislature ..."

He noted that "facilitate" has a similar meaning to aid, abet, and assist.

There has been a diversity of opinion as to whether a buyer is a party to a sale. In R v Meston (1975) 34 CRNS 323 the Supreme Court of Canada held that a buyer who encourages the vendor is abetting the sale.

In the UK the offence is defined as "supply ... to another" and "to be concerned in the supplying ... to another" (s 4 Misuse of Drugs Act 1971[UK]), and it seems to be regarded as "a matter of common sense" that that other person cannot be a person charged: Connelly [1992] Crim LR 296 (CA), although in his commentary to that case Professor Smith said that holding the recipient liable as a secondary party to the principal's offence "might perhaps be thought a devious way to proceed; but it seems right in principle."

In Australia a person can be liable for supply of a drug to himself: Maroney v R [2003] HCA 63.

In New Zealand we seem to say that there is nothing inherently wrong with the idea that a buyer may be a party to the sale to himself: R v Ngamoki 7/11/97, Heron J, HC Palmerston North T5/97, although the better approach may be to classify the buyer as a procurer (who commits the lesser offence): R v Lang (1998) 16 CRNZ 68 (CA).

Breach of prosecutor’s duties

Breach of the prosecutor's duties made the trial unfair in Stewart v R [2009] NZSC 53 (28 May 2009). That meant that the proviso could not be applied. But even if the trial had been fair the convictions would have been quashed because the trial outcome may have been different without the errors.

There is no new law in this decision, just a reminder of the duties of prosecutors and illustrations of their breach. Cases applied are R v Roulston [1976] 2 NZLR 644 (CA), R v Hodges CA535/02, 19 August 2003, R v Cook [1997] 1 SCR 1113, R v Mallory (2007) 217 CCC(3d) 266 (Ontario CA), R v E CA308/06, 11 September 2007, and Lord Bingham's well known dictum in Randall v R [2002] 1 WLR 2237 at para 28 (noted here 30 June 2008). There is also a quotation from Matenga v R [2009] NZCS 18 (13 March 2009) – a case that has been withheld from publication until completion of a retrial: does this breach the Court's own suppression order? (Of course not, don't be silly.)

Here the prosecutor had created substantial prejudice to the accused's right to a fair hearing by his criticism, in closing, of a defence expert witness. This was a senior psychiatrist, who the prosecutor, without evidential foundation, said had accepted money in an attempt to establish a defence, had spoken "psychobabble", and had "[bent] things around to suit the accused". This was an appeal to prejudice through the use of emotive and inflammatory language, which was made all the worse because the witness was in general agreement with the Crown's expert. The Judge may not have been able to remedy this prejudice, but in any event he had increased it by referring to the witness's evidence as crucial and mentioned without disapproval the Crown's submission that the witness's conclusion was "patently ridiculous".

Another important breach by the prosecutor was alleging, without an evidential foundation, that the accused and his witnesses were lying in order to avoid his being convicted. This required an assumption of guilt as the motive for lying, and so subverted the presumption of innocence.

This point was not affected by the accused having alleged that prosecution witnesses had their own reasons for lying, because no presumption of innocence applies to them.

The Crown did not seek a retrial, as the appellant had served his sentence. This does not always prevent a retrial, as is illustrated by a high-profile (well, world famous in New Zealand) retrial currently under way. I say no more ... hush ma mouf.

Unstilted voluntariness

"When a defendant is not in custody, he is in control, and need only shut his door or walk away to avoid police badgering. And noninterrogative interactions with the State do not involve the "inherently compelling pressures," Miranda [v Arizona 384 U.S. 436 (1966)], ..., at 467, that one might reasonably fear could lead to involuntary waivers."

The assumption that a suspect who is not in custody does not experience objectionable pressure to consent to official investigatory measures (interrogation, search) is not one that would be made by many counsel experienced in criminal law. Yet it is an important part of the reasoning of the Court (Scalia J, joined by Roberts CJ, Kennedy, Thomas and Alito JJ) in Montejo v Louisiana [2009] USSC No 07-1529 (26 May 2009), slip op. p 16.

The Court overruled its decision in Michigan v Jackson, 475 U.S. 625 (1986), finding it to be "superfluous" (ibid, p 15). Its objectionable aspect was its presumption that waiver of the right to counsel is invalid if the police have initiated interrogation after the defendant has invoked his right to counsel at arraignment or similar proceeding.

There is no need for that presumption, held the Court in Montejo, because a line of cases that have hitherto been concerned with Fifth Amendment rights is applicable to these Sixth Amendment rights too. These cases are not in question, and are Miranda v Arizona, 384 U.S. 436 (1966), Edwards v Arizona, 451 U.S. 477 (1981), and Minnick v Mississippi, 498 U.S. 146 (1990). They require respectively (1) that a suspect in custody being interrogated must be advised of his right to have a lawyer present, (2) that such interrogation must stop once the Miranda right is invoked and any subsequent purported waiver is invalid, and (3) that there be no subsequent interrogation until counsel is present.

So, without the Jackson rule, it is possible for the police to interrogate the defendant after arraignment if he is given his Miranda right but he does not invoke it. There is, in other words, no need for the police to seek the prior consent of counsel before interrogating the defendant after commencement of proceedings.

The Court's approach to overruling its own decisions is of interest. It asks whether the previous decision proved unworkable, how old it is, what reliance interests are at stake, and whether it was well reasoned. The reliance interests are its costs and benefits. The benefits were put this way (slip op, p 15):

"A bright-line rule like that adopted in Jackson ensures that no fruits of interrogations made possible by badgering-induced involuntary waivers are ever erroneously admitted at trial.

"But without Jackson, how many would be? The answer is few if any. The principal reason is that the Court has already taken substantial other, overlapping measures toward the same end [ie Miranda, Edwards and Minnick, above]."

So, the Court has done away with the need for the police (or any enforcement authority) to advise counsel in advance of an effort to interrogate the defendant, at the same time as it has retained the application of the Miranda, Edwards and Minnick line of cases to only custodial interrogation. Is it realistic to suppose that coercion only exists in custody?

Short in trumps

There are times when it's a struggle to say anything interesting about the final resolution of a disputed point of law.

"How sour sweet music is, when time is broke and no proportion kept ..."

isn't quite it, yet it almost is.

Overall, five judges decided against the appellant (six if you count the first instance court where the point was taken for granted without argument), and four decided it for the appellant. These four, being the majority of the highest court, determined the result.

The Supreme Court decision is Davies v Police [2009] NZSC 47 (25 May 2009). The point is narrow and peculiar to New Zealand statutory law. It is about whether an order for payment of reparation at sentencing can include an award to cover a top up to the amount of compensation to which the victim is entitled under legislation which provides a scheme for that but only to the extent of 80% of the actual loss.

But enough of that. Anyone keen enough to read the decision will note an error in para 21: the sentence

"It [the Court of Appeal] thought that the legislative history made it clear that s 32(5) [of the Sentencing Act 2002] was concerned only to exclude losses not compensated under the Injury Prevention, Rehabilitation, and Compensation Act, and there was no basis for excluding reparation for losses not able to be compensated."

is obviously wrong (delete the first "not"). Stop the presses, alert the Court! Yawn.