Highest procedural protection, but not by jury trial

Since proceedings for contempt of court must be summary, in the sense that jury trials are not appropriate for contempt, they cannot be punished at a level that would carry the right to jury trial: Siemer v Solicitor-General [2010] NZSC 54 (17 May 2010) per Blanchard, Wilson and Anderson JJ.

The minority (Elias CJ and McGrath J) agreed that summary procedure for attempt was necessary, but that punishment could be imposed at a level that would otherwise require a jury trial because that was a justified limitation on the right to trial by jury.

Therefore Mr Siemer won this appeal, in the sense that the punishment for his contempt could not exceed 3 months' imprisonment – the level at which in New Zealand the right to jury trial arises (with some minor exceptions) pursuant to s 24(e) New Zealand Bill of Rights Act 1990.

The reasoning in the majority judgment contains an interesting turn-around, without being objectionable. Starting from the proposition that whenever a person can be punished by imprisonment he is entitled to the highest procedural protection known to the law (citing Wilson J as she then was in R v Wigglesworth [1987] 2 SCR 541), and that this applies whether or not the liability arises from criminal or civil proceedings, the majority added that s 5 of the Bill of Rights does not permit an exception to the right to trial by jury if the penalty for a contempt should be more than three months' imprisonment. So far, so good: one would think the majority reasoning was heading to a conclusion that jury trial was available. But no. There had never been a jury trial in proceedings for contempt in New Zealand, and the Court of Appeal had held that contempt proceedings are not indictable: Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 at 235, as had the House of Lords: Re Lonrho Plc [1990] 2 AC 154. Since jury trial is inappropriate for contempt, the maximum penalty cannot exceed the summary level.

Obviously, repetition of the contempt could attract a further sentence. This was a case of contempt committed by a blogger, and the majority noted that it seems that on the internet a new contempt is committed every time access is permitted to the relevant item: Loutchansky v Times Newspapers Ltd (No 2) [2001] EWCA Civ 1085 at 51 – 76; Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at 42 - 44, 128 and 191 – 196. The majority noted that some long periods of imprisonment have occurred for on-going contempts in the United States (para 58, footnote 65), but "It is very unlikely, indeed impossible, that a New Zealand court would follow that extreme example...".

Here the sentence was tailored to give the contemnor the opportunity of immediate release upon his cessation of the contempt and upon his undertaking not to repeat it, and indeed the commencement of the sentence was delayed to give him that opportunity. It seems that Mr Siemer believes that he removed the offending items from his site some time ago.

Relativity and mitigating factors

Lawyers' reasoning is not always easy for non-lawyers to grasp. It is obvious to criminal lawyers that if at sentencing a mitigating factor is absent, the offender is not being punished additionally because of that absence.

Today the High Court of Australia addressed this sort of logic in Republic of Croatia v Snedden [2010] HCA 14. Mr Snedden had resisted extradition to Croatia by claiming as an extradition objection that if tried in Croatia he would be subject to additional punishment because of his political beliefs. Service in the Croatian army, he claimed, was treated as a mitigating factor in relation to the relevant offences, and since he had served in the Serbian army he would be subject to additional punishment.

Heydon J pointed out that there was no factual substratum for Mr Snedden's claim. There was an absence of proof of the practice of Croatian courts in the relevant respect (83). So it was unnecessary to consider the issues that would arise if there was such proof.

The other members of the Court did address those issues. French CJ highlighted the absence of a causal connection between the absence of the mitigating factor and the claimed relevance of Mr Snedden's political beliefs to the punishment he could face (24). Just because the Croatian court would not be able to mitigate penalty on the basis of service in the Croatian army, did not mean that the court would be considering what Mr Snedden's political beliefs might have been.

French CJ did not dissent from the general proposition in the joint judgment (Gummow, Hayne, Crennan, Kiefel and Bell JJ at 79) that absence of a mitigating factor does not mean that an offender is being punished for its absence:

"79 A rational sentencing system will accommodate mitigating factors arising from the circumstances of the offender and the offence. In that context, ineligibility for a mitigating factor at the sentencing stage of a trial cannot be said to be punishment. Conceptually, the absence of a mitigating factor does not constitute or attract punishment. In particular, the absence of a mitigating factor is not an aggravating factor. Thus, while a plea of guilty is a mitigating factor, a plea of not guilty is not an aggravating factor."

There was no evidence here that absence of the mitigating factor would be treated as a punishment.

By way of comment, one might say it is all relative. If there were two accused persons being sentenced, only one of whom could rely on the mitigating factor (for example a plea of guilty), then from the point of view of the accused who pleaded not guilty, he is receiving a heavier punishment than the other, and the only reason – from his own point of view – is that he pleaded not guilty. He does not see the big picture. It is only when the frame of reference is changed to that of a third person (a spectator or the judge) that the wider theory of sentencing is apparent.

Courts insist on the "big picture" frame of reference because there are sound policy reasons for recognising mitigating factors. That is sensible and inevitable. Getting clients to understand the justice of the reasoning is an entirely different problem.

Finding mistrial and ordering retrial after acquittal

In R v Gwaze [2010] NZSC 52 (17 May 2010) a retrial was ordered because some defence evidence had been admitted wrongly and there had been no proper opportunity at trial for the Crown to respond to it.

There is nothing particularly odd about that. Unusual, yes, because this was an appeal against an acquittal, and this seems to be the first time in New Zealand that a retrial has been ordered on this sort of appeal. Occasionally there are appeals on questions of law reserved during trials (s 380 Crimes Act 1961) – but success on these is not inevitably followed by retrial.

A number of interesting points were considered in this judgment of the Court delivered by the Chief Justice:

Double jeopardy

The rules concerning double jeopardy (s 26(2) New Zealand Bill of Rights Act 1990) do not apply in this context because there is a high hurdle (s 382(2)(b) Crimes Act 1961) for the prosecution to overcome before a retrial will be ordered and there is no need for the extra protection that the rules against double jeopardy afford (para 67).

Mistrial

A mistrial (s 382(2)(b) Crimes Act 1961) occurs where an error at trial is reasonably capable of affecting the verdict, in the sense that it is highly material to the verdict so that the integrity of the verdict was undermined by it (57, 61), applying R v Matenga [2009] NZSC 18 (blogged here 9 July 2009 and 20 July 2009).

Question of law

A ruling as to the admissibility of evidence is a ruling on a question of law (52). This should be obvious, because admissibility is governed by statute (with minor exceptions) and the application of statute is a matter of law. To get to that conclusion, however, an unnecessary change in terminology was made: the decision to admit or exclude evidence is no longer to be called a discretion: it is an exercise of judgment (49, 51). The description in R v Leonard [2008] 2 NZLR 218, (2007) 23 CRNZ 624 (CA) para 22 of the balancing exercise in determining the admissibility of improperly obtained evidence as a "discretion" will have to be read in this new light.

In this case (and I do not discuss the facts as a retrial was ordered) the contested evidence should have been ruled inadmissible because it was unreliable hearsay (44), it was opinion that was not substantially helpful (46), and its prejudicial effect outweighed its (zero) probative value (48).

The Court held that the evidence was irrelevant (37-40). Strictly, there was no need for the Court to give other reasons for its being inadmissible, as s 7(2) Evidence Act 2006 excludes it. Even so, the evidence was irrelevant because it was not sufficiently connected to the facts in the trial. It was a preliminary assessment, recognising a possibility that a connection might emerge, but also recognising that there may be no connection, and that further inquiry was needed.

Clean scene or snitch glitch?

My criticism of the New Zealand Supreme Court's majority decision in Morgan v R can now be assessed in the light of a correct approach by the Supreme Court of Canada to the use of a jailhouse informer's evidence in R v Hurley [2010] SCC 18 (14 May 2010).

In Hurley the cell mate claimed that the accused had confessed to him that he had cleaned the crime scene in an effort to remove evidence of his participation; in particular, he had attempted to remove all traces of his DNA.

One of the requirements of the warning that must be given to the jury in such cases (this in Canada is called the Vetrovec warning, after R v Vetrovec [1982] 1 SCR 811) applies where reasons to doubt the reliability of a witness may not be self-evident to the jury:

"something in the nature of confirmatory evidence should be found before the finder of fact relies upon the evidence of a witness whose testimony occupies a central position in the purported demonstration of guilt and yet may be suspect by reason of the witness being an accomplice or complainant or of disreputable character..." (Vetrovec, per Dickson J, para 42).

See also my discussion of R v Khela [2009] SCC 4.

In the circumstances in Hurley, supporting evidence for the cell mate could only be evidence that the crime scene had been cleaned. There was no issue that the accused had been at the scene, but he gave an innocent explanation for that, so presence of some of his DNA would not be conclusive. This is encapsulated in para 7 of Hurley (Mr Niemi is the cell mate):

"The evidence about the attempts to clean the room was unquestionably significant to the Crown's case. In his closing address, Crown counsel submitted to the jury that, on the evidence before the court, it was "clear that there was an attempt to clean the room" ... . The evidence of attempts to clean the room could be taken as independent evidence tending to support Mr. Niemi's evidence about his conversation with Mr. Hurley. In turn, Mr. Niemi's evidence supported the Crown's case that Mr. Hurley had not only been there, but also that he was the killer. Thus anything that tended to rebut the room cleaning theory tended to weaken the independent evidence that could be seen as supporting Mr. Niemi's version of the conversation with Mr. Hurley and, consequently, weakened the Crown's circumstantial case."

There was fresh evidence concerning the finding of Mr Hurley's DNA at the crime scene – this evidence was not available to the Court of Appeal – and the Supreme Court ordered a new trial. This evidence made it unnecessary for the Court to address the seriousness of criticism of the trial judge's Vetrovec warning, which was that the jury had not been told sufficiently why they might have reservations about the credibility of the cell mate's evidence of the accused's confession.

Hurley brings into focus the need for precision as to what evidence is capable of supporting, or undermining, the reliability of the contested evidence. Whereas in Morgan the New Zealand court majority judgment was imprecise on this (and precision would have revealed that there was no such supporting evidence), in Hurley the Canadian court highlights the supposedly supportive evidence and concludes that a second jury might not think it was as strong, in the light of the fresh evidence, as it had seemed.

Confidentiality and clear decision modelling

Anyone interested in claims to privilege by the media, especially claims in resistance to the execution of search warrants, will need to read R v National Post
[2010] SCC 16 (7 May 2010).

I mention it here only in passing, for it would otherwise require lengthy exposition. The point that will attract the attention of readers familiar with R v Grant and the questionable application of that decision in R v Harrison (see my blogs for 18.7.09, and 19.7.09) is the two-dimensional nature of the conceptual model used in National Post, in contrast to the three dimensional model suggested in Grant.

Grant concerned the admissibility of improperly obtained evidence, and there is an obvious analogy between that and the issue in National Post. The link is whether seizure of the contested evidence would be improper and the consequences if it was.

National Post adopts the Wigmore criteria for deciding whether a claim to privilege should be permitted:

"[53] The "Wigmore criteria" consist of four elements which may be expressed for present purposes as follows. First, the communication must originate in a confidence that the identity of the informant will not be disclosed. Second, the confidence must be essential to the relationship in which the communication arises. Third, the relationship must be one which should be "sedulously fostered" in the public good ("Sedulous[ly]" being defined in the New Shorter Oxford English Dictionary on Historical Principles (6th ed. 2007), vol. 2, at p. 2755, as "diligent[ly] . . . deliberately and consciously."). Finally, if all of these requirements are met, the court must consider whether in the instant case the public interest served by protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth. See Wigmore on Evidence (McNaughton Rev. 1961), vol. 8, at § 2285; Sopinka, Lederman and Bryant: The Law of Evidence in Canada (3rd ed. 2009), at paras. 14.19 et seq.; D. M. Paciocco and L. Stuesser, The Law of Evidence (3rd ed. 2002), at pp. 163-67. Further, as Lamer C.J. commented in Gruenke:    

"This is not to say that the Wigmore criteria are now "carved in stone", but rather that these considerations provide a general framework within which policy considerations and the requirements of fact-finding can be weighed and balanced on the basis of their relative importance in the particular case before the court. [p. 290]""

The fourth step is the weighing exercise that here is two-dimensional: the two public interests are weighed against each other.

"[58] The fourth Wigmore criterion does most of the work. Having established the value to the public of the relationship in question, the court must weigh against its protection any countervailing public interest such as the investigation of a particular crime (or national security, or public safety or some other public good)."

...

"[61] The weighing up will include (but of course is not restricted to) the nature and seriousness of the offence under investigation, and the probative value of the evidence sought to be obtained, measured against the public interest in respecting the journalist's promise of confidentiality. ...".

Notable here, where we are thinking of an analogy with the balancing involved in deciding the admissibility of improperly obtained evidence, is the linking of seriousness of the offence and the probative value of the evidence. Those are matters that could properly be imagined as belonging on a y-axis. Against them is the public interest against admission, and in the context of improperly obtained evidence this would be measured on an x-axis. These two axes would indicate two boundaries of a field of balance points, and the field would be divided, in a way reflecting policy, into areas of admission and exclusion.

This is a conceptually clear model, and avoidance of any suggestion of three-armed balances is welcome. The Grant model presented the difficulty of regarding as a third arm of the balance the impact of the impropriety on the accused; instead of seeing this as a third arm, it would be better to combine it with the "seriousness of the impropriety" arm, or to separate it out as a prerequisite to getting to the balancing stage in a way akin to the role of the first three of the Wigmore factors.

Beware! Teachers may even now be preparing their "compare and contrast" exam questions.

Stairway to heaven?

Disagreement over whether sufficient reasons had been given for a judge-alone decision occurred in the Supreme Court of Canada in R v Szczerbaniwicz [2010] SCC 15 (6 May 2010). The Court had given guidance on sufficient explanation for judge-alone decisions in R v REM (blogged here 3.10.08).

To prevent his wife from damaging his Masters diploma which had been hanging on the wall of a stairway, the appellant (let's call him D) pushed her. She fell on the stairs and received bruising.

D relied on the justified use of force in defence of his property: s 39(1) Criminal Code:

"39. (1) Every one who is in peaceable possession of personal property under a claim of right, and every one acting under his authority, is protected from criminal responsibility for defending that possession, even against a person entitled by law to possession of it, if he uses no more force than is necessary."

This was held to import a requirement of reasonableness (majority per Abella J para 17; minority per Binnie J para 29, 33). The prosecution must prove D did not use reasonable force and that he did not believe on reasonable grounds that he was using reasonable force.

The minority (Binnie and Fish JJ) did not suggest that the verdict had been wrong, but held that sufficient reasons for it had not been given. Of concern was absence of explanation for how the pushing or shoving was itself an excessive amount of force, either objectively or subjectively (para 26, quoting the dissenting judge in the court below). Yes, the wife fell on the stairs and received bruising, but it is wrong to reason backwards by saying that because the injuries were serious the force used was excessive (para 39). Also, it was wrong to rely on D's apparent admission that he had overreacted, because he may have lost his self-control but still used reasonable force (para 40). D can't be expected to "weigh to a nicety" the amount of force needed in a quick response situation (para 35). The fact findings were unclear as to where the diploma was when D pushed his wife, so one could not say "why" the judge concluded the force used was unreasonable (para 43).

It helps in this sort of case to return to basics and separate the actus reus and the mens rea components of the offence in the light of the claimed defence. The actus reus is the use of unreasonable force. The only evidence of unreasonableness was the injuries. They resulted from the victim's loss of balance on the stairway, so the actus reus question is whether the force used, being sufficient to cause loss of balance, was reasonable. Only if the actus reus component is satisfied do we need to consider the mens rea component. The mens rea component is either knowing that the force used was unreasonable, or unreasonably thinking it was reasonable. Those issues would require fact findings on, for actus reus, the nature of the stairway (steepness, length, availability of handrails) and the likelihood of the victim losing her balance (which way was she facing and leaning compared to the direction of the push, what was she doing at the moment she was pushed, did she have any warning, should she have foreseen the danger?), and for mens rea, what risk to his property did D reasonably apprehend – where was the diploma and what was about to happen to it, what alternative course should he reasonably have been aware of – would she have stopped if warned, what risk of injury to his wife should he reasonably have foreseen – what force did D intend to use and what was his purpose in using it?

The majority found the trial judge's decision to be "eminently justified" (para 23), stressing the finding that D had lost his temper.

This is one of those cases where the correct verdict may well have been arrived at, and the SCC majority's judgment would, on its face, appear routine, but where closer analysis by the dissenters leaves us in some doubt as to the rigor with which R v REM has been applied.

Liability in international criminal law – exclusion from refugee status

International criminal law may contain wider complicity provisions than exist in domestic law. Different standards for decision making can also exist. These points are illustrated by JS(Sri Lanka) v Secretary of State for the Home Department [2010] UKSC 15 (17 March 2010).

"serious reasons for considering", Lord Brown, with whom the other Justices agreed, held (para 39)"

"...obviously imports a higher test ... than would, say, an expression like "reasonable grounds for suspecting". "Considering" approximates rather to "believing" than to "suspecting". I am inclined to agree with what Sedley LJ said in Yasser Al-Sirri v Secretary of State for the Home Department [2009] EWCA Civ 222, para 33: "[the phrase used] sets a standard above mere suspicion. Beyond this, it is a mistake to try to paraphrase the straightforward language of the Convention: it has to be treated as meaning what it says."

The Convention under consideration here, the Refugee Convention, excludes from refugee status any one in respect of whom (Art 1F(a)):

"there are serious reasons for considering that (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes".

The focus here is on the acts of the applicant for refugee status. The Court stressed that mere membership of an organisation that commits war crimes is not enough to establish serious reasons for considering that he has committed such crimes.

The wide definition of complicity in international law must be applied, and here Articles 12(3) and 25(3) of the Rome Statute of the International Criminal Court were relevant. In summary (38), extended complicity here includes

" ... wider concepts of common design, such as the accomplishment of an organisation's purpose by whatever means are necessary including the commission of war crimes. Put simply, I would hold an accused disqualified under article 1F if there are serious reasons for considering him voluntarily to have contributed in a significant way to the organisation's ability to pursue its purpose of committing war crimes, aware that his assistance will in fact further that purpose."

The Court held that it is wrong to try to place the relevant organisation at some point on a continuum ranging from the (in my terms) relatively benign to the relatively malevolent, as was done in Gurung v Secretary of State for the Home Department [2003] Imm AR 115. There are (32) too many variable factors in war crimes cases, and the proposed continuum included irrelevant considerations:

" ... Whether the organisation in question is promoting government which would be "authoritarian in character" or is intent on establishing "a parliamentary, democratic mode of government" is quite simply nothing to the point in deciding whether or not somebody is guilty of war crimes. War crimes are war crimes however benevolent and estimable may be the long-term aims of those concerned. And actions which would not otherwise constitute war crimes do not become so merely because they are taken pursuant to policies abhorrent to western liberal democracies."

Instead, the focus is on what the individual applicant for refugee status actually did and actually believed.

This leads me to the question (in criminal law, including the law of evidence) of when conceptual modelling may appropriately involve the use of a continuum in analysis. One can imagine that a Canadian court might have been tempted to apply a "decision tree" type of approach to classifying terrorist organisations, by analogy to its approach in the unrelated field of improperly obtained evidence in R v Grant, discussed here on 18 July 2009 (twice) and on 19 July 2009. That case came down to what I think is one-dimensional (linear) continuum analysis. Continua in two dimensions can assist in admissibility decisions where the degree of official impropriety must be balanced against the public interest in admitting improperly obtained evidence. In rare cases the actus reus may be held to exist after a balancing of rights, for example disorderly behaviour: Brooker v R, discussed here on 4 May 2007. But in cases like JS(Sri Lanka) the focus on the applicant's acts and beliefs makes weighing inappropriate. Either there is an actus reus and mens rea, or there is not. They are either established to the necessary standard or they are not. There are no variables to measure and weigh against each other.

Fundamentals of secondary liability and wilful blindness

A useful reminder of the meanings of aiding, abetting, and wilful blindness has been given by the Supreme Court of Canada in R v Briscoe [2010] SCC 13 (8 April 2010). Charron J, for the Court, noted that the actus reus of aiding is assisting or helping the principal offender, and abetting is encouraging, instigating, promoting or procuring the commission of the offence (para 14).

The definition of secondary liability in s 21(1)(b) and (c) of the Criminal Code will be familiar everywhere:

"21. (1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it."

The mens rea element has two components: purpose or intention of assisting (which does not require a desire that the offence should be committed), and knowledge of the principal offender's intention to commit the offence (para 16, 17).

In some jurisdictions inciting, counselling, and procuring are included with aiding and abetting, but in Canada counselling is dealt with in s 22 of the Code and is defined there to include procuring, soliciting or inciting.

Wilful blindness is a substitute for actual knowledge. It is not the same as recklessness. It is a subjective state of mind: seeing the need for further inquiries but deliberately choosing not to make them. Wilful blindness could more aptly be called "deliberate ignorance" (para 20, 21, 24).

The Court in Briscoe approved Glanville Williams's description, in Criminal Law: The General Part (2nd ed, 1961) at p 159, of wilful blindness being equivalent to knowledge. This could be a little confusing, because if it is equivalent to knowledge, and if recklessness is the unreasonable taking of a known risk, then wilful blindness should constitute the knowledge required for recklessness. We are left clear on what wilful blindness is, but confused about why its distinction from recklessness is important. Williams was, as the passsage quoted at para 23 of Briscoe makes clear, concerned to distinguish wilful blindness from civil negligence (in relation to the failure to perceive what a reasonable person would have perceived). A negligent failure to be suspicious could not amount to wilful blindness, but - I suggest - recklessness involves an actual suspicion and could be wilful blindness. Acting in the face of a suspicion is not far removed from acting while not wanting to know if the suspicion is true.

These considerations prompt us to ask whether the mens rea for a secondary party should necessarily be stricter than that for a principal offender. However, no new law was established in Briscoe. The alleged secondary party had to know that the principal had the necessary state of mind to be guilty of the offence, and here the trial judge should have considered whether Mr Briscoe had been wilfully blind so as to have this knowledge imputed to him. The appeal was dismissed, so that the Court of Appeal's order for a retrial stood.

Notional even-handedness?

Who can more easily adduce hearsay evidence – the prosecution or the defence? Or are they equal?

In Morgan v R (criticised here recently) the majority of the Supreme Court held that the Crown could adduce evidence that the accused when in a cell had confessed to his cell-mate who was now a hostile witness. This hostility was the route through which the evidence came in, but in reality the position was the same as if a reliable witness had been called to say that the cell-mate had previously said that the accused had confessed. This is, in effect, like the use of a "notional witness" who gives hearsay evidence.

One would think, by analogy, that the defence could call a reliable witness to say that another person – not the present accused - had confessed. But in R v Key [2010] NZCA 115 (31 March 2010) the Court of Appeal refused to allow the defence to ask a police officer whether he had made a note of his conversation with the mother of a witness, who said that the witness had confessed to her. The witness in evidence had denied making such a confession to his mother, and the mother was not available to testify. The reason the evidence from the police officer was not admissible was because there was insufficient assurance of reliability as is required by s 18(1)(a) Evidence Act 2006.

It seems odd that there was insufficient assurance of reliability where (1) a mother told the police what her son had said; (2) where the son had spoken against self-interest; (3) where a police officer investigating the case noted the conversation. Where were the sources of error in these against-interest communications? Furthermore, in contrast to Morgan, in Key the confession contained information that only a guilty person would know and that was corroborated by other witnesses.

I was not involved in either case, and it may be that on careful scrutiny of the evidence Key can be justified. But these are the sorts of cases that make observers most anxious about the even-handedness of the application of the law.

Slaves to the system?

For refusal of counsel's application for leave to withdraw from acting, see R v Cunningham [2010] SCC 10 (26 March 2006).