From leaf to long knife

Another glimpse into the picturesque life of Jamaicans: Jackson v R (Jamaica) [2009] UKPC 28 (07 July 2009).

Lord Rodger delivered the judgment of the Judicial Committee, in a tone that strikes me as darkly humorous. I might be quite wrong about that, as, after all, this was a tragic murder and a long delayed meritorious appeal.

The events started with the falling of a ripe leaf from an ackee tree.

Image from ackee-tree.com

The resulting struggle involved machetes or cutlasses, a shovel, an axe and probably a lead pipe. Shortly after that, someone was "juked" (stabbed) in the back with a cutlass – but this was not particularly serious. The final events, in another incident soon afterwards, involved beatings with cutlasses, and iron pipe, and a fatal stab with a long knife.

The stabber joined in during the attack by two others; three people – the appellants - were charged and convicted of the murder. The only apparent injury to the victim – apart from some blood on his leg (a witness had said "It look like he get a lick … I saw, like when you lick somebody – like when a person get a hearty lick and a settling of blood here") - was the stab wound, so it was obvious that the beatings had not been intended to cause significant injury. This, then, was a case of extended secondary liability as far as two of the appellants were concerned, and of identity for the alleged stabber.

The law had been settled in R v Rahman [2009] 1 AC 129, 165, para 68 (noted here 3 July 2008). The trial judge did not have the advantage of reading that decision. His direction to the jury was defective; Lord Rodger at 15 cites this example:

"Is Dane Miller talking the truth when he said that these men and some others draw out himself and his father, his father ran and fell, one of them stabbed him in the chest: that is the case? If you believe that it happened that way, then all three of them will be guilty of murder, all three."

The Board applied Rahman:

"14. The facts that they were using the flat of the blades and that so little by the way of injury to the deceased was actually inflicted by those blows make it difficult to draw the inference that the attackers (apart from the one who carried out the stabbing) intended to cause serious bodily harm or that any individual attacker would have realised that any other participant might kill or intentionally inflict serious injury on the deceased. While it is therefore unnecessary for the Board to reach a conclusion on the point, their Lordships incline to the view that, given the way that only the flat of the machete blades was being used, the long knife was indeed a "more lethal weapon" and the stabbing was "fundamentally different" from anything foreseen by the other participants."

In the absence of any evidence that the two assailants (not the stabber) intended serious injury or knew that the third person intended serious injury, there was no occasion for a retrial: the convictions of those two appellants were quashed. They had spent at least five years in prison.

The third appellant denied that he was the stabber, and the Board decided that the judge had not differentiated sufficiently between the three accused, all of whom had been represented by the same counsel. The jury might have convicted him on the basis that all three were together, without properly assessing the probative value of the eyewitness who identified him as the stabber. His conviction was quashed and his case remitted to the Court of Appeal for a decision on whether there should be a retrial.

The appellate jury

New Zealand's new approach to the proviso has been revealed by the Privy Council. The Board fearlessly disclosed parts of the Supreme Court's decision in Matenga v R [2009] NZSC 18 which has been embargoed pending a retrial. The new approach is set out for us in R v Barlow [2009] UKPC 30 (8 July 2009).

The Supreme Court of New Zealand has adopted, with some modifications, the approach to the proviso taken by the High Court of Australia in Weiss v R (2005) 224 CLR 300 (noted here 16 January 2006). For reaction to Weiss in Australia, see “The Problematic Proviso: the vice of Weiss” (2007) 140 (Autumn) Victorian Bar News 32 by Phillip Priest QC, who comments “Weiss caused a shockwave to sweep through the ranks of criminal appellate lawyers and judges. The High Court radically altered the ambit of the proviso, sweeping away decades of accepted wisdom.”

Two departures from the Weiss approach are established in Matenga (according to Barlow).

The first departure from Weiss

This has several aspects. Not all errors at trial qualify to be called miscarriages of justice. Errors that "plainly" could not have affected the result of the trial don't count as miscarriages in the relevant sense. "A miscarriage is more than an inconsequential or immaterial mistake or irregularity." (para 30 Matenga, quoted in Barlow at 19)

If the error counts as a miscarriage in the required sense, namely that it was capable of affecting the outcome of the trial, the next question is whether it actually did have that effect "in reality": (Matenga 31)

"The court may exercise its discretion to dismiss the appeal only if, having reviewed all the admissible evidence, it considers that, notwithstanding there has been a miscarriage, the guilty verdict was inevitable, in the sense of being the only reasonable possible verdict, on that evidence. Importantly, the Court should not apply the proviso simply because it considers there was enough evidence to enable a reasonable jury to convict. In order to come to the view that the verdict of guilty was inevitable the Court must itself feel sure of the guilt of the accused. Before applying the proviso the Court must also be satisfied that the trial was fair and thus there was no breach of the right guaranteed to the accused by s 25(a) of the Bill of Rights".

The second departure from Weiss

This is quoted in para 20 of Barlow, from para 33 of Matenga:

"The High Court [of Australia in Weiss] said that the appellate court's task under the proviso was to be undertaken on the whole of the record. That is correct. However, it expressly included in the record the fact that the jury has returned a guilty verdict. Whilst the verdict may indicate the jury's view on some question unrelated to the miscarriage, the appeal court must form its own view on whether a finding of guilt was, notwithstanding the miscarriage, the only reasonably possible verdict."

 What about R v Bain?

In R v Bain (New Zealand) [2007] UKPC 33 (noted here 11 May 2007) the Board declined to apply the proviso, emphasising (para 25) that the appellate court "is not the ultimate arbiter of guilt, save in the practical sense that this is the effect of applying the proviso, or ruling that the new evidence could not reasonably have affected the result."

In Barlow (21) the Board was coy about the whether the Matenga approach was different, but it thought the result in Bain would have been the same under Matenga:

"Not having been addressed by counsel on the point, their Lordships express no view as to whether and, if so, to what extent, there is a conflict between the approach prescribed by the Supreme Court in Matenga and the approach adopted by the Board in Bain. But they are satisfied that, even if the approach in Matenga had been applied, having regard to the new evidence in that case, there would have been no room for the application of the proviso and the result of the appeal would have been the same. However that may be, in the absence of any submissions to the contrary, and without reconsidering the point for itself, the Board considers it appropriate to apply the approach of the Supreme Court in Matenga to the interpretation and application of section 385(1)(c) and the proviso."

The Board showed no sign of eagerness to apply Matenga in all the legal systems it serves.

The trial fairness requirement

Upon identification of qualifying error or errors, the application of the proviso is addressed by first asking whether the trial had been made unfair (Barlow 58). Fairness is judged in the light of the proceedings as a whole. The test is whether the departure was such as to go to the root of the proceedings, in the sense used in Wilde v The Queen (1988) 164 CLR 365, 372, per Brennan, Dawson and Toohey JJ and approved in Howse v The Queen [2005] UKPC 31, [2006] 1 NZLR 433 (PC).

If the court is satisfied that there was no such unfairness, it proceeds to the next question, whether the error may have actually affected the result of the trial.

A potential inconsistency with the new role of judicial fact finding is the inquiry into fairness, which necessarily requires determining whether the miscarriage could have caused the jury to misapply the law or to reason wrongly or to give improper weight to items of evidence. This goes back to the former approach of asking how the jury, not the judges, would have decided the issue.

Appellate judges as jurors

So, on appeal the judges do not try to guess what a jury would have decided. They have to assess the whole of the admissible evidence and decide whether they are satisfied beyond reasonable doubt that the conviction is correct.

Barlow illustrates the way the Board embarks on this task. It used the judge's summing up to the jury as a convenient summary (this was a fresh evidence appeal, not a case where the summing up was alleged to be defective), plus obvious circumstances that the defence relied on. The approach was not a minute and detailed examination (in the judgment) of the arguments for and against every possible inference (that was the approach that the Court of Appeal had wrongly taken in Bain), but instead the Board noted four "very obvious aspects" of the prosecution case with which it was "particularly struck" (67 – 71).

The new approach to the proviso will expose appellate judges to criticism by people who disagree with their evaluation of the evidence. It can be seen as a qualification on the right to trial by jury: you have the right to jury trial, but if that trial is not conducted according to law in a material way, your guilt or innocence will be determined by judges on appeal. There need be no second attempt to give you a lawful trial.

So when will retrials be ordered? Given that they are now fact finders, if the appellate judges have a reasonable doubt about the appellant's guilt, why don't they order an acquittal? Ordering a retrial looks like double jeopardy. In Barlow that issue did not arise.

Friends at law

For reasons not to be suspicious of barristers and judges, see Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72 (3 July 2009).

The case is about how to decide when apparent judicial bias exists. Although a civil case, it is relevant to criminal law and the accused's right to a fair trial.

It is a reminder of what the independent bar is all about. Barristers are independent of their clients, as well as from anything that could deter them from their task of ensuring that the judicial process is correct in law.

Judges share that objective, so bench and bar are engaged in the same task. This means that judges couldn't care less which barrister wins or loses, and barristers couldn't care less (surprising though this may seem) whether their clients win or lose. It is the process that matters.

Inevitably, there will be times when judges know barristers in cases before them quite well. They may even share business interests. That is completely irrelevant in the courtroom. But does it look OK?

The impression gained by the fair minded observer is the touchstone. She (for she is apparently woman: Helow v Secretary of State for the Home Department [2008] UKHL 62, noted here 23 October 2008) will be aware of these characteristics of the judicial process: Saxmere para 6 per Blanchard J. These are the points made in Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 135 ALR 753, 767 (Fed CA), quoted by Blanchard J at para 7 of Saxmere.

She will be aware of the judicial oath and the obligation of judges to hear the case that has been allocated to them and not to pick and choose which case they will hear. She will remember that the party seeking to overturn a decision for reasons of apparent bias may well be the least objective observer of all. At the same time, she will realise that judicial protestations of absence of influence are not decisive, as unconscious bias may have operated. Before she perceives apparent judicial bias, she will need to identify what it is that might lead a judge to decide a case on other than its legal and factual merits, and she must be able to point to a logical connection between that thing and the feared deviation from deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at para 8.

[Update: this judgment has been recalled and the orders made in it set aside, and the case was remitted to the Court of Appeal for rehearing: [2009] NZSC 122 (27 November 2009). This was because the Supreme Court had not been made aware of all the matters relevant to apparent bias, and if the Court had known of them it would have concluded that apparent bias was established.]

“Extreme and exceptional” murders

Two principles laid down in Pipersburg v R (Belize) [2008] UKPC 11 (noted here 26 February 2008 on another point) were applied in Trimmington v R (St Vincent and the Grenadines) [2009] UKPC 25 (22 June 2009). These concern determining when the discretionary death penalty is appropriate for murder.

Lord Carswell, for the Board, summarised the approach (21):

"It can be expressed in two basic principles. The first has been expressed in several different formulations, but they all carry the same message, that the death penalty should be imposed only in cases which on the facts of the offence are the most extreme and exceptional, "the worst of the worst" or "the rarest of the rare". In considering whether a particular case falls into that category, the judge should of course compare it with other murder cases and not with ordinary civilised behaviour. The second principle is that there must be no reasonable prospect of reform of the offender and that the object of punishment could not be achieved by any means other than the ultimate sentence of death. The character of the offender and any other relevant circumstances are to be taken into account in so far as they may operate in his favour by way of mitigation and are not to weigh in the scales against him. Before it imposes a sentence of death the court must be properly satisfied that these two criteria have been fulfilled."

This case was not of "the most extreme and exceptional" kind, so the Board substituted a sentence of imprisonment for life.

It is easy, although a little unfair, to push this to absurdity. The Board did not elaborate on how it compared this case to other murder cases. Did it look at murders internationally, or just murders on Saint Vincent and the Grenadines? Is the local judiciary entitled to apply local values in assessing what is "extreme and exceptional"? Is it necessary to accumulate a body of murders, so to speak, to establish standards against which the latest case can be measured? If murders in a given country are usually carried out in quite savage ways, does that establish a cultural norm?

And, how relevant is post-death mutilation or other indignity carried out by the killer? In Trimmington there was some of this, but the death was caused by throat cutting. On the good side, there was no planning or premeditation, prolonged trauma to or humiliation of the deceased. Those are things that accompany lawful executions.

Taking issue with expert testimony

Scientists can as individuals, at times, be bumbling idiots just like everyone else. At times they might be dishonest.

The following lengthy quotation touches on this.

Scalia J (delivering the opinion of the Court in Melendez-Dias v Massachusetts [2009] USSC No 07-591 (25 June 2009) (slip op pp 12 – 15), upholding the defendant's right to confront the expert and challenge his certificate of analysis:

"Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, "[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency." National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6–1 (Prepublication Copy Feb. 2009) (hereinafter National Academy Report). And "[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency." Id., at S–17. A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.

"Confrontation is one means of assuring accurate forensic analysis. While it is true, as the dissent notes, that an honest analyst will not alter his testimony when forced to confront the defendant, ..., the same cannot be said of the fraudulent analyst. See Brief for National Innocence Network as Amicus Curiae 15–17 (discussing cases of documented "drylabbing" where forensic analysts report results of tests that were never performed); National Academy Report 1–8 to 1–10 (discussing documented cases of fraud and error involving the use of forensic evidence). Like the eyewitness who has fabricated his account to the police, the analyst who provides false results may, under oath in open court, reconsider his false testimony. See Coy v. Iowa, 487 U. S. 1012, 1019 (1988). And, of course, the prospect of confrontation will deter fraudulent analysis in the first place.

"Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials. One commentator asserts that "[t]he legal community now concedes, with varying degrees of urgency, that our system produces erroneous convictions based on discredited forensics." Metzger, Cheating the Constitution, 59 Vand. L. Rev. 475, 491 (2006). One study of cases in which exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony contributed to the convictions in 60% of the cases. Garrett & Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1, 14 (2009). And the National Academy Report concluded:

"The forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to over-haul the current structure that supports the forensic science community in this country." National Academy Report P–1 (emphasis in original)....[footnote of Scalia J omitted]

"Like expert witnesses generally, an analyst's lack of proper training or deficiency in judgment may be disclosed in cross-examination.

...

" "[T]here is wide variability across forensic science disciplines with regard to techniques, methodologies, reliability, types and numbers of potential errors, research, general acceptability, and published material." National Academy Report S–5. See also id., at 5–9, 5–12, 5–17, 5–21 (discussing problems of subjectivity, bias, and unreliability of common forensic tests such as latent fingerprint analysis, pattern/impression analysis, and toolmark and firearms analysis). Contrary to respondent's and the dissent's suggestion, there is little reason to believe that confrontation will be useless in testing analysts' honesty, proficiency, and methodology—the features that are commonly the focus in the cross-examination of experts."

Adequacy of grounds

There are times when lawyers and judges have to grapple with the adequacy of grounds for the purported exercise of official powers such as arrest, search, or interception. These activities usually require "reasonable grounds" to "believe" that an offence has been committed or that evidence will be found, or that a person has committed an offence.

Some jurisdictions describe adequate grounds differently, but again the problem is to distinguish between adequate and inadequate grounds. "Probable cause" is the description of the requirement of adequate grounds for search in the USA, although in the context of searches of pupils at schools (not private schools) a lower standard, called "reasonable suspicion" is used to describe adequate grounds.

The distinction between reasonable grounds to believe (which constitutes adequate grounds) and reasonable grounds to suspect (which is usually inadequate), performs the same function as the distinction between "probable cause" (adequate grounds) and "reasonable suspicion" (usually inadequate, but adequate for government school officials to search pupils in the USA).

Whichever terms are used, it is tempting to say that the concepts are fluid and take their content from their context: Ornelas v United States, 517 U.S. 690, 696 (1996). This view was endorsed yesterday in Safford Unified School District #1 v Redding [2009] USSC No 08-479 (25 June 2009).

Lest the subject become impossibly vague – as it would if one were to accept that all the concepts are fluid - it may be useful to suggest a metaphor (admittedly a bit silly too, for serious-minded people): adequate grounds are like a vessel filled to a sufficient level: the shape of the vessel is fixed, the required level is marked on it, and it is the ability of the fluid to reach that mark that is critical.

For example, "probable cause" is described this way:

"Probable cause exists where 'the facts and circumstances within [an officer's] knowledge and of which [he] had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed," Brinegar v. United States, 338 U. S. 160, 175–176 (1949) (quoting Carroll v. United States, 267 U. S. 132, 162 (1925)), and that evidence bearing on that offense will be found in the place to be searched." [Safford, Souter J, slip op pp 3-4]

The first part of this describes the fluid ("the facts ... information"), and the second the vessel ("warrant ... committed"). The man of reasonable caution is, of course, the judge (pretending to imagine what some other reasonable person would decide – the objective person – but really deciding what he thinks is reasonable). Reasonableness comes into it twice: in relation to the fluid ("reasonably trustworthy information") and in relation to the vessel ("sufficient to warrant a man of reasonable caution ...").

More on the vessel: the enforcement officer must have information that provides "a fair probability" or a "substantial chance" that evidence will be discovered: Safford, Souter J pp 4-5, citing Illinois v Gates, 462 U.S. 213, 230 (1983). These terms reflect, in this metaphor, the level to which the vessel must be filled.

I think the metaphor helps by preventing the confusion that would arise if "a fair probability" and "a substantial chance" were to be applied to the quality of the information, which must be "reasonably trustworthy". It is only when satisfied of the reasonable trustworthiness of the information that one proceeds to ask what it suggests. Check the quality of the fluid, then what it does in the vessel. This approach has general application, translatable to the terminology of other legal systems.

Safford Unified School District #1 v Redding is a civil case, dealing with privacy rights, and would not normally come under consideration here. I have previously mentioned searches of school pupils in Canada: see notes for 28 April 2008, and Safford is interesting for its increase in quality of information needed to authorise a strip search of a pupil, compared with the lesser quality sufficient for search of bag or pockets. Thomas J, dissenting on the reasonableness of the strip search here, would have upheld it on the basis that departure from "bedrock" Fourth Amendment law was not appropriate.

Anyone who has been following developments in standard of proof jurisprudence (see “Balance of probabilities” in Index) will have noted differences of approach: the standard can shift or the quality of the evidence can change, according to what has to be decided. This is analogous to the position just mentioned: for strip searches of pupils, on the majority approach in Safford, does the standard change or does the quality of the information change? Souter J, for the Court, regarded the standard as fixed, requiring for strip searches a higher quality of information to meet it. Some courts would say that if information is sufficient to reach a given standard of persuasion, it is always sufficient to reach that standard, regardless of the seriousness of the issue; if context requires caution it is the standard that should be increased.

Double jeopardy and no-verdicts

Does a jury's failure to reach a verdict have any double jeopardy consequences? No: Yeager v United States [2009] USSC No 08-67 (18 June 2009).

Failure to reach a verdict is a non-event. Strange to say, the New Zealand Court of Appeal dealt with the same point in R v Shaw [2009] NZCA 232 (5 June 2009).

In Shaw there was one count, arson, but two ways in which the accused might have been liable: as a secondary party (arising from events some weeks before the fire) or as an offender at the scene; I refer to this latter as principal liability for simplicity - at the scene he could have been a secondary party, but the point of discussion here is the difference between liability at the scene and liability arising on a previous occasion. At the first trial, the jury convicted, and in answer to the Judge's (unusual) inquiry the foreman said this was on the basis of secondary liability. No information was sought or given about the jury's views on liability as a principal (they might have been unanimous or they might have been unable to agree, or they might not have decided the issue). The conviction was overturned on appeal because the accused had not been given sufficient notice of the Crown's intention to allege secondary liability. At retrial the judge directed the jury that they could convict even if they disagreed on the basis for liability. The jury convicted the accused and the judge did not inquire about the basis for that. One of the grounds of appeal was double jeopardy: the first jury should be taken to have decided that the accused did not commit the arson as a principal, so that could not be a basis for liability in the second trial. The majority on this point (Ellen France and Heath JJ) held that double jeopardy was not engaged: it would be wrong to infer that the jury had decided the issue of principal liability, let alone that they had rejected it. Principal liability was not addressed in the reason for verdict at the first trial. Nevertheless, a retrial was directed on the issue of secondary liability only: this was because Heath J was prepared to break the deadlock in this 3-judge bench by agreeing with the dissenter Fogarty J that, on broader abuse of process considerations, a real risk of double jeopardy was sufficient to prevent the prosecution from relying on liability as a principal, especially as it had always had the opportunity to allege the forms of liability as alternative counts in its indictment.

In Yeager the charges were, broadly, counts of fraudulently misleading the public about the virtues of an investment, insider trading by selling stock without disclosing to the public relevant information, and money laundering by dealing with the proceeds of the stock sales. The accused was acquitted on the fraud counts but the jury failed to reach agreement on the insider trading and money laundering counts. He was re-charged with some of the insider trading and money laundering counts. The Supreme Court had granted certiorari on the assumption that the Fifth Circuit had correctly ruled that the acquittals on the fraud counts meant that the jury had decided the accused did not have the information necessary for conviction on the insider trading charges. In fact the Fifth Circuit had reasoned that the failure to reach verdicts meant that the jury had not decided that the accused had the insider information, so the Supreme Court left open the opportunity for the Fifth Circuit to revisit its factual analysis of what, on the evidence, the acquittals necessarily meant: had the jury necessarily decided that the accused did not have the information that he was alleged to have had and which it was necessary to prove he had if he were to be convicted on the insider trading and money laundering counts?

The double jeopardy focus was thus on the meaning of the acquittals, not on the meaning of the failures to reach verdicts. "No verdict" has no meaning. Stevens J, delivering the opinion of the Court, put it like this: "the consideration of hung counts has no place in the issue-preclusion analysis."

Yeager decides that acquittals can have double jeopardy implications for counts on which no verdict has been reached (even by the same jury). Scalia J dissented on the basis - I summarise - that as the proceedings on the hung counts were not concluded they were the same proceedings as had involved the acquittals, so the acquittals were not prior in the double jeopardy sense. Alito J, also dissenting, noted that in this situation "the conclusion that the not-guilty verdicts preclude retrial on the hung counts necessarily means that the jury did not act rationally." That is because the jury must have been in doubt about a fact essential for conviction on the hung count (for double jeopardy to apply), and should have acquitted on both. He stressed that a strict analysis is necessary, as Ashe v. Swenson, 397 U. S. 436 (1970)

"made it clear that an acquittal on one charge precludes a subsequent trial on a different charge only if "a rational jury" could not have acquitted on the first charge without finding in the defendant's favor on a factual issue that the prosecution would have to prove in order to convict in the later trial. Id., at 444. This is a demanding standard."

Stevens J did not disagree on this:

"The reasoning in Ashe is ... controlling because, for double jeopardy purposes, the jury's inability to reach a verdict on the insider trading counts was a nonevent and the acquittals on the fraud counts are entitled to the same effect as Ashe's acquittal."

Inferences, reasonable doubt, and double hearsay in Canada

R v Griffin [2009] SCC 28 (18 June 2009) illustrates the Canadian approach to the criminal standard of proof in relation to circumstantial evidence. There is nothing special about circumstantial evidence in this regard (33):

"We have long departed from any legal requirement for a "special instruction" on circumstantial evidence, even where the issue is one of identification: R. v. Cooper, 1977 CanLII 11 (S.C.C.), [1978] 1 S.C.R. 860. The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. Imparting the necessary message to the jury may be achieved in different ways: R. v. Fleet 1997 CanLII 867 (ON C.A.), (1997), 120 C.C.C. (3d) 457 (Ont. C.A.), at para. 20. See also R. v. Guiboche, 2004 MBCA 16 (CanLII), 2004 MBCA 16, 183 C.C.C. (3d) 361, at paras. 108-10; R. v. Tombran 2000 CanLII 2688 (ON C.A.), (2000), 142 C.C.C. (3d) 380 (Ont. C.A.), at para. 29."

As with any sort of evidence, judges can go wrong in their instructions on standard of proof when they refer to alternative inferences. That was the ground of appeal on this point, but in context the majority held that there was no misdirection. Here, the Judge's references to "equally rational" and "as reasonable" inferences were, held the majority, references to the qualities of any inference, guilty or otherwise (35).

What do they mean by "beyond reasonable doubt" in Canada? Should a juror be able to explain to other jurors why he has a reasonable doubt? Would a "feeling" or an "intuition" be sufficient?

"43. As the majority of the Court of Appeal rightly acknowledged (at para. 65), this Court in R. v. Lifchus, 1997 CanLII 319 (S.C.C.), [1997] 3 S.C.R. 320, "did not entirely reject a definition of reasonable doubt that would include a reference to reasons". In settling the preferred approach to a jury charge on reasonable doubt in Lifchus, Cory J. noted the appellate controversy on whether a jury should be instructed that a reasonable doubt is a doubt "for which one can give a reason" (para. 28). After considering the potential risks and difficulties that accompany such an instruction, he concluded at para. 30: 

'It follows that it is certainly not essential to instruct jurors that a reasonable doubt is a doubt for which a reason can be supplied. To do so may unnecessarily complicate the task of the jury. It will suffice to instruct the jury that a reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence.' "

Here,

"45. The jury's question was a clear indication that it still required assistance on the definition of reasonable doubt and the application of this concept to the evidence. This Court has repeatedly stressed the importance of providing clear, precise answers to questions from a jury: R. v. Naglik, 1993 CanLII 64 (S.C.C.), [1993] 3 S.C.R. 122, at p. 139; R. v. S. (W.D.), 1994 CanLII 76 (S.C.C.), [1994] 3 S.C.R. 521, at pp. 528-31; R. v. Brydon, 1995 CanLII 48 (S.C.C.), [1995] 4 S.C.R. 253, at paras. 16 and 19; and R. v. Seymour, 1996 CanLII 201 (S.C.C.), [1996] 2 S.C.R. 252, at para. 30. Given the specificity of the query, it was reasonable for the trial judge to decide that more was required than a simple reiteration of the instructions contained in the main charge. In particular, the trial judge recognized that it was important to tell the jury that their verdict must be based, not on feelings or intuitions but rather, as set out in Lifchus above, "on reason and common sense" which, in turn, "must be logically based upon the evidence or lack of evidence" before the court (emphasis added). The trial judge explained what that meant by setting out generic examples of how a juror's analysis on reasonable doubt might proceed."

The majority thought there was no error in the Judge's direction:

"47 ... the instruction contains no error. As Côté J.A. put it [dissenting in the Court of Appeal for Quebec in the present case], "the standard requires a serious examination of the evidence upon which the verdict is to be based" (para. 139) and that was the essence of the message conveyed to the jury. ...."

There was also a hearsay ground of appeal in this case: the deceased victim had said something indicating fear of the accused. This was, in the circumstances of the case, admissible as hearsay, but only to prove the victim's state of mind. This artificial distinction has apparently been abandoned in New Zealand: hearsay seems to be admissible on any issue to which it is relevant. Not only could it go to proving the victim's fear of the accused, but it could be evidence of the accused's attitude to the victim. This is the "double hearsay" aspect of the evidence: the first hearsay aspect is a witness saying what the deceased said, and the second is the deceased's assertion of the accused's attitude to him. Care is needed before accepting the truth of double hearsay, because it is not possible to check whether the deceased might have been confused, but if the circumstances relating to the hearsay statement provide reasonable assurance that it is reliable, it should be admissible (s 18 Evidence Act 2006).

As with the other ground, the Supreme Court of Canada split 5 – 2 on this ground of appeal.

Timing and recent invention

A routine case (although the culmination of lengthy proceedings) from the Supreme Court of Canada on the admissibility of a witness's previous consistent statements is R v Ellard [2009] SCC 27 (12 June 2009).

Here, recent invention of testimony was alleged to have occurred as a result of rumours that were circulating. However, here those reasons for fabrication occurred before the relevant consistent statements were made. The statements therefore did not rebut a suggestion that the witness's evidence was influenced by rumours. They were not admissible.

If they had been admissible, a warning would have been required against their being used as evidence of the truth of their contents. Such a warning would not now be required in New Zealand, as the statements would, pursuant to s 35 Evidence Act 2006, go to proof of their contents: R v Barlien (noted here 8 July 2008 and 19 July 2008).

At what price?

Market value includes black market value for the purposes of ascertaining the amount of a forfeiture order under the Proceeds of Crime Act 2002[UK]: R v Islam [2009] UKHL 30 (10 June 2009).

The Law Lords split 3 – 2 over this, and overruled R v Hussain [2006] EWCA Crim 621.

There is a difference between calculating the amount of benefit derived from criminal activity and calculating the amount available to meet a confiscation order. Black market values can be used in the former, but not the latter.

Criminal activity may be interrupted by the offender's arrest, as it was in this case, before the proceeds were converted into money or lawfully held property. Here the respondent had imported heroin into the UK and was arrested in possession of it. What was the value of his benefit from the offending?

Pursuant to Hussain, which the Court of Appeal reluctantly followed in this case, it was nil, as the heroin had no lawful market value. Obviously on these facts there was no injustice arising from that conclusion, as the heroin was forfeited to the Crown. The magnitude of the offending, for sentencing purposes, could be measured by the illegal value of the drug, but would a confiscation order have any use?

Confiscation orders are adjusted so as not to exceed the value of property available for their discharge, so the potential injustice is mitigated. But that is a separate consideration from the calculation of the amount of benefit from the offending (44).

So, the value of the drugs on the black market was relevant to calculating the amount of the offender's benefit from the criminal activity.

What might the position be under our new Criminal Proceeds (Recovery) Act 2009[NZ]? (Commencement eagerly awaited: see note for 2 May 2009.) Has an offender like Mr Islam "derived" a "benefit" from the offending (s 7)? No definition of "derived"; it could be argued he was hoping to derive the benefit, but at the time of his arrest he hadn't quite achieved that [but see para 44 of Islam]. On the other hand, he had drugs that were very valuable on the black market. The drugs are "tainted property" (s 5(1) and s 50) and are liable to be forfeited under an assets forfeiture order. Then their value is deducted from the value of the benefit from the criminal activity (s 54(1)(b)) – which on these simple facts would be the same amount – to leave the maximum recoverable amount under a profit forfeiture order. This structure is consistent with the black market values being used in the calculations.