Securing trial fairness

The primacy of a defendant's absolute right to a fair trial is preserved in aspects of Canadian evidence law concerning the withholding of disclosure in the interests of national security: R v Ahmad, 2011 SCC 6 (10 February 2011). This is because the court can, in the event that absence of disclosure compromises the right to a fair trial, order a stay of proceedings.

The legislative scheme under consideration in Ahmad is ss 38 to 38.16 and 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5. Section 38.14 provides:

Protection of right to a fair trial

38.14 (1) The person presiding at a criminal proceeding may make any order that he or she considers appropriate in the circumstances to protect the right of the accused to a fair trial, as long as that order complies with the terms of any order made under any of subsections 38.06(1) to (3) [permiting disclosure] in relation to that proceeding, any judgment made on appeal from, or review of, the order, or any certificate issued under section 38.13 [prohibiting disclosure].

Potential orders

(2) The orders that may be made under subsection (1) include, but are not limited to, the following orders:

(a) an order dismissing specified counts of the indictment or information, or permitting the indictment or information to proceed only in respect of a lesser or included offence;

(b) an order effecting a stay of the proceedings; and

(c) an order finding against any party on any issue relating to information the disclosure of which is prohibited.

The Court, in a unanimous judgment, held [2] in relation to a conflict between the interests of national security which require concealment of information and the interests of the defendant,

"Where the conflict is irreconcilable, an unfair trial cannot be tolerated.
Under the rule of law, the right of an accused person to make full answer and defence may not be compromised."

This requirement of trial fairness was the criterion for constitutional validity of the legislation [5]. The important consideration was the flexibility of the legislated scheme [7]:

" ... the net effect is that state secrecy will be protected where the Attorney General of Canada considers it vital to do so, but the result is that the accused will, if denied the means to make a full answer and defence, and if lesser measures will not suffice in the opinion of the presiding judge to ensure a fair trial, walk free. While we stress this critical protection of the accused's fair trial rights, we also note that, notwithstanding serious criticisms of the operation of these provisions, they permit considerable flexibility as to how to reconcile the accused's rights and the state's need to prevent disclosure."

Important here is the context in which a stay of proceedings may have to be considered. Usually the stay is described as a remedy of last resort, but here a stay of proceedings may be required even though not all the information has been disclosed to the judge who therefore could not say that it was necessarily the only appropriate remedy [34-35].

There is no obligation on the defence to assist the court (for example by undertaking not to disclose to the defendant information given by the prosecution to counsel, see [30]) to avoid the need to order a stay [78]:

"... the defence is under no obligation to cooperate with the prosecution and if the end result of non-disclosure by the Crown is that a fair trial cannot be had, then Parliament has determined that in the circumstances a stay of proceedings is the lesser evil compared with the disclosure of sensitive or potentially injurious information."

The trial judge must be able to "conclude affirmatively" [35] that the right to a fair trial has not been compromised.

For my analysis of trial fairness in various leading appellate courts, click here.

Second thoughts

A witness's privilege against self-incrimination

Cases of alleged domestic violence are among those where a complainant may wish to deny the truth of her earlier complaint or of her evidence in pre-trial proceedings. She would then be admitting wasting police time by making a false complaint, or perjury. Will she be able to claim a privilege against self-incrimination so that she is not forced to give evidence incriminating the defendant at his trial?

This depends, as the New Zealand Supreme Court held in DK Singh v R [2010] NZSC 161 (17 December 2010), on how "likely" (s 60(1)(b) of the Evidence Act 2006[NZ]) it is that provision of the information sought would be used to incriminate the witness, that is, on whether there is a "real and appreciable" – as opposed to a "merely imaginary and fanciful" risk of incrimination (Singh at [31], citing Cockburn CJ in R v Boyes (1861) 1 B & S 311 at 330, 121 ER 730 (KB) at 738). In the circumstances of Singh the Court assessed this likelihood as sufficiently low to justify denial of the privilege.

The Court added that the privilege belongs to the witness, and it is not open to the appellant to make the claim on her behalf if she had waived it, applying R v Kingslake (1870) 11 Cox CC 499 (QB) and noting the consistency with s 60(4)(b) of the Evidence Act 2006.

Hostility and prior consistent statements

In the trial in this case the Crown had obtained a ruling that the witness was hostile, so that by cross-examination it was revealed that she had previously stated that the alleged offences had occurred. The defence then sought to have some of her prior consistent (that is, consistent with her denials of the offending) statements admitted under s 35 of the Evidence Act. But on the facts here the Court assessed those statements as not having sufficient probative value to make them "necessary to respond" to the Crown's challenge to the witness's accuracy or veracity, and held that their selective nature would make admitting them unfair to the prosecution and would require a time-wasting diversion (s 8 Evidence Act).

Trial unfairness

The appellant's fundamental argument was that the trial had been unfair. This is dealt with at the end of the judgment [59-61]. This argument was put on the grounds (as I would paraphrase on the basis of my analysis of trial fairness) that the jury would not have assessed the evidence impartially because the witness's credibility had been improperly undermined. It seems from the judgment that the unfairness argument was based on the jury not having been given a direction that they might consider that her clumsy attempts to deny that the offending had occurred were due to her fear of being prosecuted for perjury. That is, there was a real risk that the jury's assessment of the value of her evidence was not an impartial assessment because all relevant considerations may not have been taken into account.

The Court concluded that the jury had been given sufficient information to be able properly to assess the witness's credibility. A fear of prosecution would not have affected the way she gave evidence.

Res judicata or double jeopardy?

The different foundations of the special pleas (autrefois convict/acquit) and issue estoppel are called to mind by Coke-Wallis, R (on the application of) v Institute of Chartered Accountants in England and Wales [2011] UKSC 2 (19 January 2011). Lord Collins noted at [59] that the principles of the special pleas do not apply in civil cases, and that Lord Bridge had been wrong in Harry Lee Wee v Law Society of Singapore [1985] 1 WLR 362, 368 (PC) to suggest that they do.

Re-litigation of issues may be permitted, subject to the court's duty to prevent an abuse of its process. Re-litigation in civil cases is controlled by the doctrine of res judicata, which has generated the rules concerning cause of action estoppel and issue estoppel. In criminal cases the prevention of double jeopardy is the conceptual source of the special pleas.

In civil cases, cause of action estoppel prevents different evidence being used to prove a suit that had previously failed, as occurred in Coke-Wallis. If the earlier proceedings had been criminal, different considerations would apply to the admissibility of determinations of issues in the subsequent civil case: see Z v Dental Complaints Assessment Committee [2008] NZSC 55 (25 July 2008), noted in the entry for 25 July 2008. Acquittal in criminal proceedings does not prevent the same issues being decided in a subsequent civil case. This reflects the generality of the criminal verdict. The higher standard of criminal proof makes appropriate the use of evidence of a previous conviction in a subsequent civil case, which is likely to be permitted if relevant although there may be exceptions (as is recognised for example in s 47 of the Evidence Act 2006[NZ]). And, still focusing on where the second case is civil, evidence of a judgment or of a finding of fact in an earlier civil case is likely to be admissible (and not disputable) within the principles of res judicata but not otherwise.

A particularly clear outline of the position where the second case is criminal is given in R v Carroll [2002] HCA 55; 213 CLR 635; 194 ALR 1; 77 ALJR 157 (5 December 2002). In criminal law a more flexible approach may be permitted to prevent abuse of process. On double jeopardy, Gleeson CJ and Hayne J observed at 23-24:

"[23] It is ... important to recall that the four considerations which we have mentioned (the imbalance of power between prosecution and accused, seriousness for an accused of conviction, prosecution as an instrument of tyranny and the importance of finality) are not the only considerations which find reflection in the criminal law system. At the very root of the criminal law system lies the recognition by society that some conduct is to be classified as criminal and that those who are held responsible for such conduct are to be prosecuted and, in appropriate cases, punished for it. It follows that those who are guilty of a crime for which they are to be held responsible should, in the absence of reason to the contrary, be prosecuted to conviction and suffer just punishment.

"[24] Reference to the general propositions we have mentioned is important not because the answer to the issues now being considered can be found by deductive reasoning which takes any or all of them as a premise but because they are values to which the criminal law can be seen to give effect. They are values that may pull in different directions. There are, therefore, cases in which a balance must be struck between them. To take only one obvious example, it is accepted that in order to acquit the innocent, some who are guilty will go unpunished. But conversely, to punish the guilty, some who are innocent will suffer the very real detriments of being charged and tried for an offence they did not commit. It follows that to argue from any one of the considerations we have identified to some rule of universal application is to invite error."

Where the first case was criminal and there was an acquittal, it may be impossible to say that a given fact was determined to any standard. This makes the application of estoppels inappropriate (Carroll at [35]). Instead, it is recognised that there is a discretion which underlies the special pleas: Connelly v Director of Public Prosecutions [1964] AC 1254 per Lord Pearce at 1364:

"A man ought not to be tried for a second offence which is manifestly inconsistent on the facts with either a previous conviction or a previous acquittal. And it is clear that the formal pleas which a defendant can claim as of right will not cover all such cases. Instead of attempting to enlarge the pleas beyond their proper scope, it is better that the courts should apply to such cases an avowed judicial discretion based on the broader principles which underlie the pleas." (emphasis in original)

This discretion is the inherent power of the court to prevent an abuse of its process (Carroll at [39]). So, although a plea of autrefois acquit may not technically be available on a particular issue, considerations of double jeopardy may indicate that the laying of the second charge was an abuse of process. Outside of the technical application of autrefois acquit, it may be possible to reveal double jeopardy by comparing the issues in the first trial with those raised in the second. Carroll is an illustration: at the first trial the charge was murder, the only issue was identity, and the accused gave evidence. He was acquitted but subsequently charged with perjury on the basis of his denial of being the killer. The elements of perjury differ from the elements of murder, so autrefois acquit did not assist the defendant, but the High Court unanimously held that the perjury prosecution was an abuse of process and it was stayed.

While issue estoppel has no place in criminal law in Australia (Rogers v R [1994] HCA 42; (1994) 181 CLR 251), the UK (R v Humphrys [1977] AC1) and New Zealand (R v Davis [1982] 1 NZLR 584 (CA)), this is not so in Canada: R v Mahalingan [2008] SCC 63 (14 November 2008), discussed here on 15 November 2008. In that case the issue was whether evidence that the defendant had attempted to interfere with a witness, a charge on which he had been acquitted, was admissible at his trial for aggravated assault. It should be obvious that, unlike in Carroll, proof of the second charge did not entail contradicting the acquittal, but the majority of the Supreme Court of Canada held that issue estoppel applied because it included findings of reasonable doubt on an issue. It seems clear that the Canadian approach, committed as it is to the use of the res judicata-based estoppels, is having its limitations reduced by a fiction that a finding of a reasonable doubt is a determination of an issue.

Trial fairness and conviction appeals

Stimulating holiday reading! My new paper on what a "fair trial" means and on reform of the criteria for allowing appeals against conviction! Sit up straight and click on the link under draft papers on this page. Also available at NZLawyer (4 February 2011), but the former - my pdf file - is easier to read because it has footnotes, whereas the latter incorporates the footnotes into the main text.

Judging or calculating?

Some general thoughts on sentencing guideline judgments are prompted by the High Court of Australia's decision this week in Hili v R; Jones v R [2010] HCA 45 (8 December 2010):

• The point of first reference for sentencing must be the relevant legislation. A court cannot issue guidelines that are inconsistent with statutory provisions.
  

• If a guideline indicates a "norm" for the starting point for sentence determination, can that go beyond being merely descriptive of what earlier cases have decided? What authority does the court have to set "norms" for the future?
  

• Without statutory authority to lay down norms for the future, or to describe even in the most general terms the circumstances in which those norms can be departed from, what binding force can these future "norms" have?
  

• Plainly, the purpose of sentencing guidelines is to promote consistency between cases. But cases are never exactly the same, and a sentencing judge should exercise judgment about what is appropriate for an individual offender. The task of counsel for each side is to bring to the court's attention cases that it asks to be used as precedents, and this is an exercise in describing what has happened in the past. That is the way the law usually works.
  

• Consistency between cases requires consideration of the reasons why previous sentences were imposed. This is not revealed by an exercise in tabulation of seriousness of offence and level of sentence, because that misses the vital ingredient of individual circumstance and other matters required by statute to be taken into account.
  

• So, first look at the legislation, then look at what has been done in other cases – especially to identify unifying principles – remembering that what has been done in the past does not necessarily set the limits on what can now be appropriate.
  

• Whether a sentence under appeal was manifestly inadequate or excessive does not depend on an intuitive reaction based on earlier decisions, but rather is a question that has to be answered in the light of all the matters relevant to fixing sentence, including the circumstances of the offending and the circumstances of the offender, and the sentences imposed in the most comparable cases.
  

• It is possible (as Heydon J said in his concurring but partly differently reasoned judgment, although the point must be uncontroversial) that there may be more than one "correct" sentence in a given case. A sentencing judge must be guided by his or her perception of what is appropriate.
  

Those points encourage us to doubt the status of so-called guideline judgments. Examples in New Zealand: establishing sentencing bands for drug offending based on the quantity of drug involved: R v Fatu [2006] 2 NZLR 72, R v Terewi [1999] 3 NZLR 62; categories for burglary based on the kind of offender: Senior v Police (2000) 18 CRNZ 340; bands of sentences for violent offending based on listed aggravating features: R v Taueki [2005] 3 NZLR 372; and – illustrating a level of analysis that has become, I respectfully suggest, grotesque – bands of sexual offending based on the physical details and grouped into "rape bands" and unlawful sexual connection or "USC bands" (!): R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750. These cases are prescriptive and may well be found to contravene the principles in the Sentencing Act 2002. Their underlying assumption is that judges are unable to exercise discretion judicially. These cases are, perhaps some might argue, an overly eager attempt by the appellate court to placate pressure groups whose only thoughts about sentencing are retributive. They are, of course, honest endeavours to promote uniformity in sentencing, but, especially when read in the light of the Supreme Court's rejection of a formulaic assessment of the amount of discount appropriate for pleas of guilty, they may have gone wrong in neglecting the legislated approach; see Hessell v R [2010] NZSC 135 (discussed here 16 November 2010).

Respectfully yours ...

For my submissions to the Justice and Electoral Committee on the Criminal Procedure (Reform and Modernisation) Bill 243-1 (2010), updated as at 17 February 2011, click here.

Relevance and unreasonable rage

There may be occasions where a judge may rule that evidence initially thought to be relevant to an issue must be ignored. The Supreme Court of Canada has touched on this in the context of provocation: R v Tran [2010] SCC 58 (26 November 2010):

"[41] ... the evidence must be reasonably capable of supporting the inferences necessary to make out the defence before there is an air of reality to the defence (Fontaine 2004 SCC 27 (CanLII), 2004 SCC 27, [2004] 1 S.C.R. 702 at para. 56; R. v. Reddick, 1991 CanLII 106 (S.C.C.), [1991] 1 S.C.R. 1086, at p. 1088, citing Pappajohn v. The Queen, 1980 CanLII 13 (S.C.C.), [1980] 2 S.C.R. 120, at p. 133). ... ."

Tran is an example of the evidence being insufficient to establish a necessary element (here, of a defence), but I discuss it because it obliquely invites consideration of the admissibility/insufficiency boundary.

The "air of reality" requirement is really a relevance requirement.

To be relevant, evidence must be reasonably capable of supporting the fact it seeks to prove: Bain v R [2009] NZSC 16 per Elias CJ and Blanchard J at [43] (adopting R v Thomas [1970] VR 674 at p 679), per Wilson J at [91], agreeing, and adding that the threshold is "very low").

Judges may - unless there has been a pre-trial hearing - have to rule on admissibility when a party seeks to adduce the evidence, and that may be when there is only a narrow context. But on the "air of reality" test, the judge can take a wider perspective and place the challenged evidence in the context of all the other evidence in the case.

The danger is that, in a jury trial, the judge will usurp the jury's function by removing an issue (often, but not necessarily, a defence) from their consideration. The law of provocation, surveyed in Tran, brings out this difficulty, which reflects the sometimes controversial difference between questions of law and questions of fact.

The trial was by judge alone, and the judge held that the prosecution had failed to exclude the partial defence of provocation. The Court of Appeal of Alberta held that the offender should have been convicted of murder, not manslaughter. The Supreme Court dismissed the offender's appeal. Broadly, the offender could not have been acting under provocation because his estranged wife's adultery was known to him before he entered her home and it could not have been an "insult" (s 232 Criminal Code) that caused him to lose his self-control.

So the trial judge must have thought it was reasonably possible that the offender had lost his self-control (a question of fact), while the appellate courts did not (because of a requirement of law: the facts did not establish an "insult" although if they had, that would have been a question of fact under s 232). There is an objective element to the loss of self control:

"[29] ... while one spouse undoubtedly has a legal right to leave his or her partner, in some circumstances the means by which that spouse communicates this decision may amount in fact to an "insult", within the ordinary meaning of the word. However, to be recognized at law, the insult must be of sufficient gravity to cause a loss of self-control, as objectively determined. The fact that the victim has the "legal right", in the broad sense of the term, to leave the relationship is an important consideration in the assessment of this objective standard."

Tran was not so much an "air of reality" case, as a case of loss of self control being outside the scope of the partial defence of provocation because it was unreasonable. But to avoid the hideous spectacle of an appellate court acting like a jury, it is more diplomatic to pretend that the evidence was irrelevant.

Power to disclose

Does voluntary disclosure to the police by an electricity supply company of the defendant's power usage breach a right to privacy?

The Supreme Court of Canada has held, 7-2, that no such breach occurred in R v Gomboc [2010] SCC 55. The defendant was charged with cultivation of cannabis and his electricity usage was one aspect of the case against him. Four of the majority judges (Deschamps, Charron, Rothstein and Cromwell JJ) held that information about electricity use in a private dwelling was not about "intimate or core personal activities" of the occupants and did not carry a reasonable expectation of privacy. Core biographical data was not revealed. A relevant circumstance was that customers could expressly request that the supply company keep confidential the details about electricity usage, but here the defendant had not done that. This latter point was stressed by the concurring majority judges, Binnie, LeBel and Abella JJ.

Dissenting, McLaughlin CJ and Fish J held that there was a reasonable expectation of privacy in the circumstances of this case. This was because of the degree of intrusiveness was high: the accurate measuring of electricity usage supported inferences of criminal activity that was private information of use to the police. This form of search should only be permitted if the police could alternatively have obtained a search warrant. Customers could not be expected to be aware of the complex regulations which permitted the supply company to pass on information to the police, and the regulatory scheme was not intended to authorise the company to act as an agent for the police by spying on its customers.

Offenders often bypass their electricity meters, and are consequently charged with theft of electricity in addition to cultivation of cannabis. Police use of power consumption information in support of applications for search warrants may already be regarded as a good investigative technique; in R v Thompson [2001] 1 NZLR 129, (2000) 18 CRNZ 401 (CA) it does not appear to have occurred to anyone that this might have been objectionable.

Relevance, probative value, and Bayesian reasoning

Peter Tillers has drawn everyone's attention to an interesting discussion of relevance, "Bayesian Wars Redivivus – An Exchange" in International Commentary on Evidence, Vol 8, Issue 1, Article 1 (2010).

Relevance

Definitions of relevance can appear to be inappropriately restrictive. In New Zealand we have an example in s 7 of the Evidence Act 2006 (compare rule 403 of the Federal Rules of Evidence 2010). Critically, subsection (3) defines relevant evidence:

"Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding."

Inevitably, however, there are many facts in a case that are not in dispute but that are relied on to give context to the relevant facts. These contextual matters are often called narrative. Strictly speaking, they do not in themselves tend to prove anything, but they help to explain why other evidence does have the necessary tendency. A generous reading of s 7(3) is needed: it could encompass narrative evidence if "evidence" is understood as including the evidence that explains the "tendency to prove or disprove".

Neutralising the opponent's evidence

Sometimes, each party may rely on the same narrative evidence but will invite a different inference from it. A defence stratagem is to neutralise prosecution evidence by showing that it is consistent with innocence, and this applies to narrative evidence too.

This leads to a paradox: if a narrative fact is not in dispute, but is equally consistent with guilt as with innocence, it is needed by both parties even though its tendency to prove a matter in issue is neutral; it is relevant in ways that cancel each other out. Does neutralisation destroy relevance?

This paradox disappears if s 7(3) means that equal and opposite tendencies are still tendencies, because each must be considered separately.

A problem for Bayesian logic?

The tendency requirement for relevance says nothing about the strength of that tendency. The strength of the tendency of relevant evidence to prove a matter in issue is called the probative value of that evidence. In Bayesian logic probative value is expressed as a likelihood ratio. Essentially this is a way of asking (for prosecution evidence) how much more consistent is the evidence with guilt than it is with innocence.

In some ways it is unfortunate that the adjective Bayesian has attached to this thought process, because it is an ordinary and natural way of addressing the question of the strength of the probative value of evidence. There is not even anything necessarily mathematical about it, as strengths and likelihoods can be assessed without numbers.

Much of the argument in the paper cited above is concerned with how a likelihood ratio is to deal with common reliance on the evidence without rendering it irrelevant. I think there is some crossing of the wires here: probative value is treated in this discussion as if it was relevance. This error is introduced by Ronald Allen at p 10 of the exchange. Roger Park tries to correct it at p 11, but David Kaye thinks it makes a different point (p 11). Ronald Allen emphasises his assertion of a problem that a likelihood ratio of one makes for relevance at p 12, David Kaye discusses the probative values in reply (p 12), and Ronald Allen's rejoinder (p 13) corrects the tendency to think that changing probative value changes relevance, while seeming to suggest that it was David Kaye who said that if both sides rely on the evidence it is not relevant at all, when really it was Ronald Allen himself who suggested that this is implicit in Bayesian reasoning. Ronald Allen thinks it is difficult to determine relevancy until all the evidence has been heard (p 13) – but I think that is because he confuses relevancy with probative value. Samuel Gross seems to agree that relevance cannot be assessed without the other evidence (p 15). Bruce Hay usefully distinguishes between the function of the judge and that of the jury (p 19). Peter Tillers chips in with a defence of the proper use of Bayes' Theorem (pp 20-21). David Kaye mentions what I have here called narrative evidence, at p 24. Ronald Allen comes down hard against Bayesianism (p 25) although he acknowledges it has some use (p 26). David Kaye brings narrative evidence into a Bayesian approach (p 29), and then Peter Tillers brings the discussion to cows (p 30) and common sense (the "stories" approach to probative value).

The reality is that juries are commonly told that they may decide to give particular evidence little or no weight (probative value) notwithstanding that it is (necessarily) relevant evidence. Evidence can be relevant although it has only a slight tendency to prove the matter contended for, and it will be admissible unless excluded by some other rule, and its probative value – assessed in the context of all the relevant evidence in the case – may be similarly slight yet its impact on the result of the case will depend on the priors (that is, how close the other evidence brings proof of the prosecution case to the required standard).

Bayesian reasoning can be useful on the issue of admissibility where it can be shown that the likelihood ratio is close to one (the evidence is nearly as consistent with innocence as it is with guilt) if other circumstances in the case make the evidence in question liable to exclusion because of its illegitimately prejudicial effect (see s 8 of the Evidence Act 2006; rule 403 of the Federal Rules). Evidence that is merely narrative should not have the necessary prejudicial effect to require exclusion, but it is commonplace to encounter exclusion of other relevant evidence because of its prejudicial effect.

Stories or statistics?

Usually people decide what to believe on the basis of what seems, without the need for further inquiry, to be consistent with common sense. They are using experience as the basis for judgment. They would have to concede that other people's experience can be useful in helping them make that judgment, and that that experience may come from statistical studies. The usefulness of scientific studies, the results of which are presented statistically, cannot be denied. They can distinguish factual from fictional stories. The significance of probabilities for logical reasoning must be recognised, and the inescapable influence of conditional probabilities on the correct determination of judicial proceedings must be utilised by fact-finders.

Accounting for guilty pleas – justice, not economics

Whereas South Australia v Totani (last note) illustrated the error of a legislature in depriving a court of its judicial function, Hessell v R [2010] NZSC 135 illustrates a departure by a court (here, the lower appellate court) from its judicial function.

This is only hinted at obliquely. The Court was highlighting the inappropriateness of a formulaic approach to the level of sentence discount to be awarded for entry of a plea of guilty. The Court of Appeal in this case had issued a guideline judgment on discounts for guilty pleas, setting out a sliding scale according to the stage of the proceedings at which the plea was entered. The Supreme Court overruled that:

"[67] The law reform agencies in the United Kingdom and New Zealand saw valid reasons to move to a more prescriptive and structured approach to giving credit for guilty pleas in sentencing. The Court of Appeal was persuaded by their reasoning. But in giving effect to their proposals, the Court of Appeal has underestimated the complexity of the issue including the potential of the changes to impact on the protected rights of persons charged with criminal offending. It is also inappropriate for a court to make changes in sentencing policy that would restrict the capacity of judges to determine sentences that are considered to fit all the circumstances of the case. Where the development of sentencing policy is motivated by a utilitarian calculus it may not be appropriate for judicial decision. Judges should show restraint in moving beyond the area mandated by existing legislation when exercising their sentencing powers. The ultimate difficulty we have with the Court of Appeal's approach is that it is not mandated by the Sentencing Act." [emphasis added]

The Supreme Court's approach recognises the need to avoid coerced guilty pleas, and to protect the defendant's right to dispute the facts and to challenge the admissibility of evidence.

Sentencing involves the consideration of a range of circumstances, one of which may be a guilty plea, and the significance of such a plea has to be assessed in all the relevant circumstances of the case. However, the Court added that discounts for guilty pleas should not exceed 25%, as remorse is a separate consideration for which more credit may be due.

The Australian approach (R v Wong [2001] HCA 64, (2001) 207 CLR 584 at [76] per Gaudron, Gummow and Hayne JJ; R v Markarian [2005] HCA 25, (2005) 228 CLR 357 at [37] per Gleeson CJ, Gummow, Hayne and Callinan JJ) was preferred to that in the United Kingdom, although New Zealand uses more of an "instinctive synthesis" of gravity and culpability than does Australia: Hessell at 55.

Fundamentally, the Court of Appeal had addressed the question from a point of view that was distorted by non-judicial concern with administrative efficiency.