Aimed at promoting the study of technical aspects of criminal law and procedure, this site considers selected cases from the top appeal courts of Australia, Canada, the UK, the USA, the European Court of Human Rights and New Zealand. From August 2004 there have been approximately 780 entries, including book reviews.
Wednesday, June 22, 2011
Bring on the holidays!
The majority disagreed with the Nova Scotia Court of Appeal majority (and apparently too with the dissenting judge in that court who seems to have accepted this point) as to whether Crown questioning of the complainant had been leading. The questioning is set out at para 80 of the NSCA majority judgment and more extensively at [118] of the dissenting judgment of Fichaud JA. At trial, after a stick drawing of a female person had been drawn by the prosecutor and the complainant had drawn a circle in the general vicinity of where the defendant had been touching her inappropriately, the questioning continued (I insert numbers for the questions):
"1. Q. Yes. What’s that part of the body on a female called?
A. Vagina.
2. Q. Vagina. And was your dad touching you on the vagina?
A. Yes.
3. Q. And when he touched you on the vagina, was it outside of your vagina or inside of your vagina?
A. Inside.
4. Q. What part of his body was he using to touch the inside of your vagina?
A. His fingers.
5. Q. Was he on the inside or the outside of your clothes when he was doing this?
A. Inside.
6. Q. So you would wake up and your dad’s hand would be down your pants, and his fingers would be in your vagina?
A. Yes."
The Supreme Court majority held [9] that this was not leading questioning. But did it suggest answers or assume a state of facts that was in dispute? Q2 leads; it should be "Where was your dad touching you?" Q3 should be "Which part of your vagina was he touching?" Q5 should be "Were you wearing anything?" then, "Where was his hand compared to your clothing?" Q6 should be "When did you notice that?"
An interesting point concerns Fichaud JA's treatment of the defence cross-examination on these matters. Fichaud JA regarded the defence tactic of getting the complainant to repeat this evidence (by questions which in cross-examination are not, of course, objectionable for being leading) as defeating any objection that could have been made at trial to the Crown's leading of the same evidence. I should say that the defence cross-examination technique was flawed: it was wrong to get the complainant to repeat her evidence in chief; counsel should merely have led the inconsistent statement and then put the proposition that both were lies. But, given that counsel chose to repeat what in the hands of a prosecutor was objectionable, did this create a sort of estoppel on appeal against objection to the prosecutor's leading? I think not, because if the questions had not been allowed in chief they would not have been repeated in cross-examination.
The Supreme Court did not address this. Nor did it explain why the questions were not leading, except to say that binary questions (giving the complainant a choice between two alternatives, as in Q3 and Q5 above) did not here suggest an answer. Well, in the context of this case those questions were peripheral: the point was the allegation that the defendant was touching her vagina. Inside or outside vagina, or inside or outside of clothing, was of secondary importance. But in any event, binary questions are not necessarily acceptable, as they serve to reinforce the preceding answer, here that the vagina was touched, and that clothing was worn.
Oddly McLaughlin CJ for the majority said, on the issue of whether the questions suggested answers or assumed facts that were in dispute, that they "did not cross this threshold". There is a threshold? They were sort of leading but not quite? Is there a category of questions that are acceptably leading in a context where leading is prohibited? The majority did not say, yes, these were leading questions, but in this case the complainant was young and the prosecutor was having difficulty getting her evidence, so the judge was right to allow these questions. If that was what the majority intended, it would be controversial. Compare the remarks of the New Zealand Court of Appeal in R v E (CA308/06) [2007] NZCA 404, [2008] 3 NZLR 145 at [25]:
" We are conscious that there are some cases and commentators which suggest that leading questions may be allowable where young children are concerned . . . Given what is now known about the importance of using open-ended questions when interviewing children, these authorities should be treated with caution. We note, in any event, that under s 89 of the Evidence Act 2006, there is no exception to the prohibition of leading questions where a child is being questioned."
Saturday, June 18, 2011
Risks, aversions, coercion, and provocation
R v Tido (Bahamas) [2011] UKPC 16 (15 June 2011) has some useful dicta on dock identification, application of the proviso where inadmissible evidence had been before the jury, and on the discretion to impose the death penalty in the worst cases of murder.
In Miguel v The State (Trinidad and Tobago) [2011] UKPC 14 (15 June 2011) there is an interesting point reiterated about the Mushtaq direction ([2005] UKHL 25, discussed here on 22 April 2005 and also, in the context of Wizzard [2007] UKPC 21 here on 6 April 2007). This is that there is a distinction between on the one hand denial that a statement was made at all, as where the defendant says the police coerced him to sign a confession they concocted, in which case the Mushtaq direction does not apply, and on the other hand acknowledgement that the confession was his but that it was coerced. In the latter case, where the question concerns the voluntariness of an acknowledged confession, Mushtaq does apply so that the jury must be directed to ignore it if they think it may have been obtained by coercion. This was the explanation of Mushtaq that had been given in Wizzard.
Although Mushtaq is discussed as if voluntariness were an issue on which the jury had to be unanimous, it seems obvious that unanimity is not required because each juror may find his own route to a decision on guilt, and it is only on the verdict that the members must be unanimous. So if a juror relies on the confession, that juror must be satisfied (beyond reasonable doubt - the standard applying to voluntariness here) that it was made voluntarily.
In Miguel the Board, once again, found a way to avoid upholding the death penalty. This time the reasoning focused on the interpretation of constitutional legislation.
The third decision of the Privy Council addresses provocation and fresh evidence that could be relevant to that defence: Lewis v The State (Trinidad and Tobago) [2011] UKPC 15 (15 June 2011). Provocation has been replaced in England and Wales by the partial defence of loss of control: ss 54-56 of the Coroners and Justice Act 2009[UK], and Lord Brown for the Board commented [28]:
An illustration of a controversial reliance on provocation is Weatherston v R [2011] NZCA 276 (17 June 2011), a case which was a major motivation for the repeal of this partial defence in New Zealand. Our national sense of horror is such that we have yet to replace it with anything like loss of control. The difference between Lewis and Weatherston is small (I mean here that in each the defendant claimed to have lost self-control as a result of his sensitivity to the consequences of a terminated sexual relationship), and it is likely that if the judge in Weatherston had refused to leave provocation with the jury the Court of Appeal would have upheld that decision, and, in that event, our crisis over the existence of this partial defence may well not have occurred.
Although the best barristers say very little, I, by way of contrast, can add a bit about provocation. Earlier I mentioned Attorney-General for Jersey v Holley [2005] UKPC 23 (see the entry for 5 July 2005), and it is worth calling to mind the two-stage inquiry by which courts address issues of provocation. First, what level of provocation can the defendant properly claim to have experienced? This requires considering how a reasonable person with the defendant's characteristics would have felt the provocative words or conduct. It is a mix of objective and subjective considerations. No doubt one could fairly say it requires a considerable exercise of imagination to assess. Second, given the level of provocation assessed in that way, does it exceed the level that a reasonable person ought to be able to tolerate without losing self-control? This is an objective question. These questions can be modified when the issue is whether provocation is a live issue in the case: is there evidence of acts or words that could reasonably be taken as requiring an exercise of self-control by the defendant, and, if so, could it reasonably be concluded that the exercise of self-control so required was beyond the ability of a reasonable person to exercise? This latter question determines whether a loss of self-control could have been through provocation as opposed to being the result of malice.
How do the new "loss of control" provisions applicable to England and Wales, referred to above, deal with these issues? On the first question, the s 55 definition of "qualifying trigger" sets the objective standards for the nature of the provocative act or words (serious violence, extremely grave circumstances, justifiable sense of being seriously wronged), and the subjective requirements are in s 54 (loss of self-control caused by a qualifying trigger). The second question, whether a reasonable person would have lost self-control if subjected to the level of provocation experienced by the defendant, appears in s 54(1)(c), which sets the standard as that of a person of the defendant's age and sex and who has "a normal degree of tolerance and self-restraint". Overall, and I only generalise because there will be a lot of interpretative issues, this legislation has the important effect of ensuring that only seriously provocative acts or words can be the basis for this qualified defence.
Wednesday, June 15, 2011
The unsaid unchartable universe
It is necessary to avoid creating an "unchartable universe of appellate review", as Abella J so picturesquely put it in R v O'Brien 2011 SCC 29 (9 June 2011), writing for herself, McLaughlin CJ, Deschamps, Rothstein, and Cromwell JJ.
So, if a judge says he relies "entirely" on particular evidence, this is not to be taken to mean he was unconsciously influenced by other, inadmissible, evidence. It means the opposite: he deliberately ignored what was inadmissible.
Thursday, June 02, 2011
Raising the bar
For a collection of articles illustrating brilliant scholarship in our areas of interest, see the Journal of Commonwealth Criminal Law, available at the website of the Association of Commonwealth Criminal Lawyers.
Tuesday, May 31, 2011
New complications for old
In Mahomed the Supreme Court split 3-2 over what items of evidence were included as propensity evidence. The majority focused narrowly on one incident, and the minority said it was artificial to take an "atomistic" approach [73] and instead the overall pattern of events had to be looked at. The same split occurred on whether the propensity evidence was admissible: the majority said the one incident was only admissible on one of the four counts, whereas the minority said the overall pattern of events was admissible on all counts.
Further, the judges split into the same groups on whether it was appropriate to consider in detail the kinds of directions that juries should be given. The majority chose not to go into this, whereas the minority analysed the use and risks of propensity evidence, when a direction should be given and what it should say.
Conveniently, the consistency of the split between the members of the Court made it only necessary to deliver two judgments. The majority judgment of Elias CJ, Blanchard and Tipping JJ was delivered by Tipping J, and for the minority William Young J delivered the judgment of himself and McGrath J.
As the majority found there had been a miscarriage of justice arising from the way the judge had instructed the jury (he had followed a Court of Appeal ruling in this case – R v Mahomed [2009] NZCA 477 - which had held that the evidence was admissible on all counts), it had to consider whether to apply the proviso. As it happened, doing this by applying R v Matenga [2009] NZSC 18 (an approach I have criticised here, for example on 20 July 2009 and 1 January 2010) involved no greater discussion of the prosecution case that would the more conventional method for deciding conviction appeals which asks whether there was a real possibility that the error at trial affected the verdict (see Fraser v HM Advocate [2011] UKSC 24, discussed here on 26 May 2011).
The Mahomed minority's analysis of types of propensity evidence, identifying categories and sub-categories, and allowing that some instances may require swapping between categories depending on the strength of the evidence, leaves one wondering if the subject is set to become, once more, over-academicised. Complications arising from "coincidence" reasoning (eg at [51]) tend to confuse rhetoric with substance. When a prosecutor argues that either the defendant is guilty or that he is the victim of an amazing coincidence through being falsely accused by independent complainants, that rhetoric is really a reflection of the denominator of the Bayesian likelihood ratio: the low probability of getting the accusations on the assumption that the defendant is innocent.
The prosecutor's argument is sound, but it does not generate a new category of propensity evidence (see [85(a)], and [87] where Hudson v R [2011] NZSC 51 is said in footnote 50 not to be an appropriate case for coincidence reasoning). But coincidence is just another word for "low probability" and as para [59] of Hudson points out coincidence reasoning there was unnecessary as it would have duplicated ("elaborated") what the judge had told the jury. The prosecution would have said there that as the defendant had a motive, commission of the offence by someone else would by an unlikely coincidence. It comes down to the low probability of getting the evidence of motive on the assumption of innocence, and the high probability of getting it on the assumption of guilt.
There was unanimity on the relationship between the balancing exercises in s 8 and s 43 which both address probative value and prejudicial effect. In the context of propensity evidence, s 43 is the sole balancing exercise: majority at [5], minority at [66-67]. The minority do, however, accept a theoretical case of equal balance, but I think that is a misconception. The balancing metaphor in both sections does not work like a weighing of commodities. What needs to be avoided is a real risk of unfairness to the defendant, and probative evidence can "outweigh" that risk if admission of the evidence does not give rise to that risk. The Court of Appeal recognised this in Vuletich v R [2010] NZCA 102 per Glazebrook J at [27] and Randerson J at [96], rejecting a suggestion that had been made in Stewart (Peter) v R [2008] NZCA 429 by Baragwanath J to the effect that highly probative evidence could only be inadmissible if it gave rise to a level of illegitimate prejudice that was even greater. It would have been useful for the Supreme Court to have addressed this fundamental issue in Mohamed.
Thursday, May 26, 2011
Non-disclosure and trial fairness
In this case information had not been disclosed to the defence, and had it been disclosed the conduct of the case for each side would have been different. Therefore, non-disclosure here went to the question of trial fairness [32].
The question of trial fairness is not answered by considering what verdict the appellate judges would have reached at a hypothetical trial [38]:
The case illustrates how an appellate court should apply this test. At trial the prosecution had alleged that the defendant's guilt of his wife's murder was demonstrated by her rings that could only have been found where they were if he had removed them from her corpse. The non-disclosed evidence was that the rings had been at that location before she died.
Non-disclosure significantly affected the course of the trial. This was not a case of freshly discovered evidence, although I think the difference should be immaterial because the ultimate question is whether there is a real possibility that the omission affected the verdict.
I have suggested that all conviction appeals raise issues of trial fairness. This is because a fair trial is one where the law is properly applied to facts that are determined impartially. "Impartially" is used in a wide sense to include actual and apparent bias as well as inaccuracy. Even appeals challenging jurisdiction raise fairness in this sense, as without jurisdiction the law is not properly applied. Fresh evidence appeals also concern fairness, as the newly discovered evidence may demonstrate a real possibility that the verdict was wrong. There can be unfairness even if the verdict was not affected, where the law was not properly applied, but this was not that sort of appeal.
I have recently (7 April 2011) mentioned misuse of hypotheticals by appellate courts, and have also criticised the usurpation of the jury role by appeal judges, for example here (9 July 2009) and here (25 June 2007), and here (16 January 2006).
Wednesday, May 25, 2011
Writing for judges
Do not even consider living a day longer without reading these interviews with the Justices of the United States Supreme Court: The Scribes Journal of Legal Writing (2010) vol 13, available here.
Because brevity wins, I leave it at that, except to mention this teaser by Roberts CJ:
"What the academy is doing, as far as I can tell, is largely of no use or interest to people who actually practice law."
Thursday, May 19, 2011
Avoiding the paperwork
The fundamental requirement is that there should be reasonable grounds for a search. The police need not apply for a search warrant, even if they have grounds to obtain one. The opinion of the Court, delivered by Alito J and joined by Roberts CJ, Scalia, Thomas, Kennedy, Breyer, Sotomayor and Kagan JJ (Ginsburg J delivered a dissenting opinion), mentioned five reasons for not requiring a warrant. They are set out at p 12 of the slip opinion. I summarise:
- The police may wish to speak to the occupier to see if it is worth getting a warrant.
- The police may want to ask the occupier for consent because that would be easier.
- They may want more evidence before submitting a marginal application for a warrant.
- They may want evidence to justify a broader warrant than they currently have grounds for.
- They may not want to disclose that they have grounds for a warrant because that might alert other suspects.
Nor is it appropriate to pretend that the police may always behave as if they were private citizens as far as door-knocking is concerned, as the majority do at p 16. Private citizens are not state agents collecting evidence to prosecute suspected offenders. It is disingenuous for the Court to hold that occupiers may "stand on their constitutional rights" and not answer the door or allow police entry, but if they "elect to attempt to destroy evidence [they] have only themselves to blame for the warrantless exigent-circumstances search that may ensue."
One would think that, on this approach, a refusal by an occupier to allow police entry would be understood by the police to be an attempt to preserve an opportunity to destroy evidence, and would therefore be justification for a warrantless entry and search.
The opportunities for abuse of powers in this context are such that, for people who regard the Fourth Amendment as a proper restraint on executive power, Ginsburg J's dissent may be considered the sole voice of reason in this case.
But the case is not about random door-knocking by the police. The police believed that the smell of cannabis was coming from a specific apartment.
The ratio of this case is that in deciding whether a warrantless search was reasonable the court will need to consider all the circumstances, and unreasonable police conduct does not give rise to reasonable grounds. This is unobjectionable as a legal rule. If it had been unreasonable for the police to knock on the door in this case, the police would not have been able to rely on subsequent inferences they drew as to risk of destruction of evidence (the exigency). There was no evidence here (pp 17-18) that the police had acted unreasonably prior to entry, so (p 19) the exigency justified the warrantless entry. This was on the Court's assumption, for the purposes of argument (p 17), that there was in fact an exigency here. This assumption was only necessary if, without the exigency, there would have been inadequate grounds for entry. So the police here had reasonable grounds for knocking on the door but, at that point, not for entry, but when (if) the exigency occurred they had (would have had) reasonable grounds for entry. The case was remanded to the Kentucky Supreme Court for further proceedings not inconsistent with the Court's opinion.
A strange thing about this case is why exigent circumstances were relevant. If the police smell cannabis ("marijuana") smoke and establish that it is coming from private property, they would have reasonable grounds to believe that an offence was being committed and so could search without warrant: for example, R v Gurnick [1999] NZCA 19, (1999) 16 CRNZ 513 (CA). But the position is different in the US, where there is a stronger preference for grounds to be assessed by a neutral official: Johnson v United States, 333 U.S. 10 (1948). In that case the smell of opium from a hotel room, without the risk of a suspect fleeing, or of destruction of evidence, was not grounds for a warrantless search.
Counter-intuitive evidence: should neutrality be sought?
Delay in complaining, or the continuation of a relationship between the complainant and the defendant, might be thought to undermine the credibility of the complainant. They may indeed undermine credibility on the facts of a particular case, but it would be wrong for the jury to apply a rule of thumb when assessing the evidence.
In M (CA23/2009) v R [2011] NZCA 191 (18 May 2011) the New Zealand Court of Appeal considered ways of countering the wrong intuitions that jurors may have about the significance of such circumstances to credibility. It referred in particular to decisions of the Supreme Court of Canada, R v DD 2000 SCC 43, [2000] 2 SCR 275, and the Court of Appeal of England and Wales, R v Miller [2010] EWCA Crim 1578. Expert witnesses may give evidence on the counter-intuitive significance of such circumstances, the judge may direct the jury on the dangers of making assumptions, or counsel may agree on a statement to the jury on the point.
Those techniques of countering wrong intuitions are aimed, said the Court in M(CA23/2009) at [25], adopting a comment by the New Zealand Law Commission, at restoring a complainant's credibility from a debit balance because of jury misapprehension, back to a zero or neutral balance. It needs to be added that the defendant should also be allowed to use these techniques to prevent wrong intuitions being used against him.
We might wonder whether the aim of setting the credibility balance back to neutral is necessarily correct. Some kinds of behaviour may well indicate reliability in general. Not everything is neutral. Delay may be neutral, but a quick complaint may in the generality of cases indicate reliability. The continuation of an apparently good relationship between the complainant and the defendant may be neutral, but a sudden breakdown of a relationship may in general indicate that the complaint is true. Or in turn those intuitions may prove to be false. What do the scientific studies show?
There is no reference in M(CA23/2009) to statistical data on the significance of types of behaviour to the truth or falsity of complaints. But at least we can say that logically it is necessary to compare the occurrence of the behaviour in the cases of true complaints, to its occurrence in the cases of false complaints.
The jury must not be left in the impossible position of having to use their collective common sense while at the same time treating as neutral behaviour that may well be useful in assessing credibility. How can a jury decide the significance of such behaviour in the particular case without putting it in a more general context?
Sunday, May 15, 2011
Compensation for wrongful convictions
Two poles are identifiable: one is that people who are actually innocent should receive compensation after erroneous conviction, and the other is that no one who is actually guilty should receive compensation after erroneous conviction. By "erroneous" conviction I mean not in accordance with the law.
The problem is to navigate between these poles when interpreting the criteria for compensation. In this case it was the interpretation of s 133 of the Criminal Justice Act 1988[UK] that governed the issue, in particular the phrase "a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice". The Court split 5-4 on what this should mean.
The dissenters were particularly revolted by the thought that a person who was in fact guilty might receive compensation after erroneous conviction. Lord Brown (with whom Lord Rodger agreed without delivering a separate judgment) said at [281]:
Lady Hale succinctly addressed Lord Brown's "palpable sense of outrage" [116]:
Under this test there will be occasions where people who are in fact guilty are entitled to compensation. Such cases may occur where, as Lord Brown mentioned at [280] a person against whom there is inadmissible intercept evidence that unequivocally demonstrates his guilt, could not on admissible evidence be convicted.
The answer to that difficulty is that compensation in such cases should be derisory only. An award of contemptuously small compensation would show society that the person was in fact guilty, and it would deter such people from seeking compensation.
It should be stressed that this case does not establish a meaning for "miscarriage of justice" beyond its specific statutory context. As Lord Phillips observed at [9], this phrase is capable of having a number of different meanings.
Although there are 284 paragraphs in the case, it is easy to read because the judgments are divided into consistent headings, and the dissenters are left to the end under their own heading. Other topics dealt with are the meaning in this context of the phrase "a new or newly discovered fact" and the relationship between the presumption of innocence and a claim for compensation.
In New Zealand this sort of compensation is governed by Cabinet Guidelines introduced in 1998. Claimants have to be alive at the time of the application, have served all or part of a term of imprisonment, had their convictions quashed on appeal without an order for retrial (or have received a free pardon), and must be able to prove on the balance of probabilities that they are innocent of the crime for which they were convicted. This is a more restrictive entitlement than in the UK. There is, however, a "residual discretion" that allows the Crown to consider claims falling outside the guidelines in "extraordinary circumstances" where it is in the interests of justice to do so. So, where a person is acquitted following a retrial he is outside the guidelines, so he must show "extraordinary circumstances" to demonstrate that it is in the interests of justice to award him compensation. This may well mean that if such a person is able to show to a standard higher than the balance of probabilities that he is in fact innocent, it would be in the interests of justice to award him compensation. The guidelines are not, therefore, unduly concerned with failure to compensate people who are really innocent, and they are arguably over-concerned with avoiding compensating people who are really guilty. Some flexibility in the quanta of awards could be a way of making the scheme more just.
The New Zealand Law Commission had recommended the requirement of proof of innocence and para 127 of its 1998 Report No 49 "Compensating the Wrongly Convicted" received citation in Adams, R (on the application of) v Secretary of State for Justice: [47] Lord Phillips, [173, 175] Lord Kerr. The Commission proceeded on the basis that actual innocence is the justification for compensation, but the majority of the United Kingdom Supreme Court held that excluding from entitlement people who no longer seemed to be guilty but whose innocence could not be established was a heavy price to pay for ensuring that no guilty person ever gets compensation (Lord Phillips at [50]).
The NZLC Report starts with a controversial assertion, saying in para 1 "The essence of a free society is the freedom of a law-abiding citizen to act without interference by the state." That begs the very question the state has been unable to answer lawfully. In view of the Report's conclusions, it is a tyrant's assertion, requiring the citizen to prove he is law-abiding. Instead, the essence of a free society is the freedom of all people, whether law-abiding or not, to act without unlawful interference by the state. The rule of law requires the state to prove that interference with the citizen's liberty is justified. The United Kingdom Supreme Court's majority approach survives the moral analysis advocated by Dworkin (see my review of "Justice for Hedgehogs" 25 April 2011), whereas the New Zealand one does not.
Wednesday, May 11, 2011
To put or not to put?
Again, in the most general of terms, where it is an offence to do X but there is a statutory defence of absence of intention to do Y, and where the defendant has denied doing X, evidence about X might also be relevant to Y.
So, where a sharebroker facilitates the transfer of legal ownership of shares, when in fact the beneficial ownership does not change, he is deemed to have committed the offence of creating a false appearance of active trading in those shares, but he has a defence if he proves he did not have the purpose of creating that appearance (see para [5-8] of Braysich for the relevant legislation). The circumstances in which he transferred the shares may be relevant to whether he had the proscribed purpose. When he denies knowing that the beneficial ownership did not change, evidence of his good character will be relevant to that, and it will also be relevant to whether he had the proscribed purpose.
Obvious though this may be in retrospect, the Court split 3-2 on whether the defence case was sufficient to raise the defence of absence of the proscribed purpose. Heydon J agreed with Bell J and added [54] that all the defendant had done at trial was to point to evidence which, although not inconsistent with the absence of purpose did not actually support absence of purpose. Bell J [116] considered that there was no evidence of any purpose other than the impugned purpose. Although the defendant had acted for fees for valued clients, that could not, without more, establish that it was probable that he did not have that purpose. The majority, French CJ, Crennan and Kiefel JJ, held that on the view most favourable to the defendant the jury could well have asked whether it was really likely that an honest man who is acting on instructions from reputable people, who he has no reason to believe have a dishonest purpose, would himself have that dishonest purpose when he is aware of the business rules and the law [47], and that therefore the defence should have been put to the jury.
There was no disagreement about what the law is on whether a defence should be put to the jury. The relevant question in this case was [36]:
Why the big difference between the majority and the minority? I suspect the minority have taken the stance that unless an individual item of evidence gives rise to a probability of innocence greater than 0.5, it does not support the defence. This approach allows the minority to say that evidence that is merely consistent with absence of purpose does not support absence of purpose. The correct way to look at this, as Bayesian logicians tell us, is to ask what is the probability of getting the evidence, assuming the defendant is innocent, compared to the probability of getting it, assuming that he is guilty. Comparison of those probabilities, assessed intuitively, would indicate that each of the items of evidence relied on by the defendant was more likely to exist if he was innocent than if he was guilty, so they individually and in combination support the defence.
Friday, May 06, 2011
Offensive or disorderly behaviour
So that's the behaviour and the person it must affect. I don't agree with the Court's media release which states that Elias CJ dissented, perhaps with Anderson J, on the description of the impugned behaviour. One must not read a case as if it were a statute, and here the required minimum for liability is the ratio. Differences in diction should not distract from the core of agreement. Tipping J expresses his disagreement with Elias CJ at [69], stressing at [70] that conduct is not offensive just because someone who is unduly sensitive to it reacts in a way that threatens public order. But Elias CJ would not have used the standard of the reaction of anyone, instead at [40] she requires tolerance of expressive behaviour by people using public places, and holds that a disproportionate reaction would make a conviction substantively unreasonable. In short, although Elias CJ is concerned to avoid subjective things like mere annoyance without disorder counting as offensive behaviour [30-31], her definition of public disorder, quoted above, includes "the creation of alarm or unease at a level that inhibits recourse to the place" which, if you accept than an annoyed person may well wish not to have been there to see the offensive behaviour, is not significantly different from applying the standard of the tolerance of the reasonable person who is conscious of the defendant's rights. If there is a difference between the judges, it is superficial and hardly warrants being called a dissent.
The next matter is how to apply the criteria for the behaviour and the person it must affect to the facts of the case.
In Brooker v Police [2007] NZSC 30 (discussed here on 4 May 2007) there was a difference between the judges on whether a rights limitation or a rights balancing approach to this was appropriate, and the same difference is echoed by two of the judges in Morse. Elias CJ at [13-16] considered that the criminal law and limitations on rights must be capable of ascertainment in advance, and that balancing would be contrary to the need to give the legislation a meaning consistent with rights if it can (citing s 6 New Zealand Bill of Rights Act 1990), and that the first responsibility of the courts is interpretive. Her point is that the legislature carried out the only necessary balancing when it formulated the offence to require an impact on public order. McGrath J, on the other hand, held that balancing is appropriate when applying the criteria to the facts, so it must be carried out in the circumstances of each case [106-107]. A different metaphor, the reaching of a threshold of interference with the rights of members of the public, was used, expressly or impliedly, by Blanchard J at [64],Tipping J at [71], Anderson J at [127]. Elias CJ also favoured an objective standard for whether the defendant's conduct was disruptive of public order [39]. This is a direct application of the threshold requirement to the facts without engaging in an exercise of rights limitation or balancing.
The rights limiting model uses s 5 of the Bill of Rights to find the point at which a limitation on rights is justified, although it can be a matter of dispute as to whose right, the defendant or the victim, should be subject to justified limitation. The balancing model involves judicial weighing of the values that underlie the competing rights. McGrath and Thomas JJ did this in Brooker, but in Morse McGrath J combined balancing with the question of justified limitation under s 5. The threshold model is the preferred method for applying the criteria to the facts, in which the standard is what should be tolerated by the reasonable person who respects the defendant's competing right.
The case itself had been treated erroneously by the lower courts because they had overlooked the requirement that to be offensive or disorderly in this legislative context the defendant's behaviour needed to have a bearing on public order. Had that not been overlooked, the defended hearing would most likely have taken a different course. In view of the history of the case, and the fact that the offence was punishable only by a fine, the Court quashed the conviction and did not order a rehearing.
Morse does not address the mental elements of the offence, and we are not told whether the judges would have decided that the relevant conduct (the defendant, in protest at this country's military involvements, burnt a New Zealand flag within view of people who were participating in a war remembrance service to mark ANZAC day) was offensive or disorderly. There seems to be no doubt that it was capable in this sense, but there was insufficient evidence about whether it actually had the necessary impact on public order (Elias CJ at [57], Blanchard J at [59], Tipping J at [73], McGrath J at [119] and Anderson J at [129-130]).
This was a hollow victory for the appellant, as Morse takes rights disputes out of this part of the law and returns the discussion to the familiar territory of reasonableness.
Wednesday, May 04, 2011
Sorry, I can’t think of a heading for this one ...
For other approaches to how an appellate court should decide whether a verdict was unreasonable, see my discussion of Owen v R [2007] NZSC 102, noted here on 11 December 2007. In New Zealand we have an odd situation: if an appeal is brought on the grounds that the verdict was unreasonable, the appellate court will not reach its own decision on guilt or innocence, whereas if the appeal is brought on a ground which attracts the operation of the proviso, the appellate court will decide the question of guilt or innocence for itself. This is because of a relatively recent change in the interpretation of the legislation in which our Supreme Court blipped over to follow the High Court of Australia's decision in Weiss.
Monday, April 25, 2011
Book Review: Justice for Hedgehogs by Ronald Dworkin
His treatment of parliamentary sovereignty points the way for twenty-first century policy in the light of law as an interpretive concept. This contrasts to Lord Neuberger MR's recent conservative treatment of sovereignty which may leave us wondering why history stopped after the civil war, the Glorious Revolution of 1688, the Bill of Rights 1689, and the Act of Settlement 1701. Has nothing happened since? Wasn't there a Holocaust? Do people not need protection against abuses by majorities? What if Parliament abolished judicial review or the ordinary role of the courts? Neuberger refuses to test the need for change against hard cases, saying that such arguments are unreal, [1] they involve "postulating a wholly different Parliament from that which we have ever known" and – I sarcastically interpose - everyone in Northern Ireland would cheer to that, but he adds "and, if that arose, there would presumably be a very different judiciary from that which we have ever known." Amazingly, he continues "Further, a Parliament which was prepared to prevent citizens having access to the courts would presumably be unconcerned about the rule of law, in which case questions of constitutional sovereignty would be of no real significance in practice." Well, no, not if the judges sat on their hands. The issue would have to be fought out in the streets.
For those who dislike the idea of revolution as the only answer to a moral crisis of that magnitude, Dworkin's argument is compelling. His thinking has developed since (brace yourself, I'm going to use the cliché seminal) his seminal "Taking Rights Seriously" (1977). He now sees law as a branch of politics, rather than as a system separate from but interacting with morality. The change is because Dworkin has recognised the circularity of treating law and morality as separate but interrelated systems. How would they interrelate? If that is a legal question, the answer depends on an assumption about the role of morality in reading legal material; the alternative is to assume it is a moral question. This logical difficulty, says Dworkin, is what led to the "concept of law" jurisprudence, which treated the relationship between law and morality as neither a legal nor a moral question, but as a "conceptual" one. Here the problem is that people don't agree on which propositions of law are true. That, however, is unavoidable, and Dworkin looks to an integrated network of political value to construct a conception of law. Ethics produces personal morality which produces, as a subdivision, political morality which produces, as a subdivision, law. There may be, therefore, some valid laws that are too unjust to enforce.
But I have focused here on his final chapter, while on the way Dworkin has discussed a huge range of fascinating ethical and moral questions. His aim is to demonstrate how we can coherently think about questions of values. The integration of our understanding of interpretive concepts produces a unity of values. Interpretive concepts are those about which we share a general understanding, but we may disagree about their application in particular cases. Justice, right or wrong, helping, harming, keeping promises, obligations arising from relationships, equality, liberty, democracy, and law are all interpretive. The truth of an interpretation is determined by its consistency with the two principles of dignity. The first principle of dignity is that the success of one's own life has objective importance, and, as a corollary, all lives are equally important. The second principle of dignity is that we each have personal responsibility for our own life; we must each make our own decisions and so lead authentic lives. Self-respect comes from taking our own life seriously and in that sense living well: we must strive to make our own life a successful performance by creating value in it. The two principles of dignity interact to guide ethics (how to live well) and morality (how to treat others), which in turn are mutually reinforcing: living well requires treating others well, and respect for others enhances self-respect.
That is an outline of the skeleton of Dworkin's conception of the unity of value. There have been times when, as a lawyer, I have wished that the people who write complicated statutes would reveal the whiteboard diagram which they devised to guide their drafting. So too with this book. It has to be worked at rather than skim-read. Notes have to be scribbled in margins and end pages filled with references. Yes, the first chapter serves as a travel guide to the journey ahead, but there are times when Part One (Chapters 2 to 5) slows down while Dworkin deals with anticipated challenges from academic philosophers, requiring detailed conceptual distinctions on issues that most of us, since we have bought the book, will be prepared to take on trust just for the sake of getting to his point. But it would be wrong to be discouraged by the initial labours, as once we have appreciated the book as a whole we can go back to the details. Some readers might think a glossary would have been useful, but the index is a well designed work-around.
For an indication of what you will find in Justice for Hedgehogs, here is Dworkin's essay from a recent issue of the New York Review of Books (10 February, 2011).
This wonderful book will delight anyone who wants a systematic approach to deciding what is right. It would be a dull person indeed who did not feel the resonance of Dworkin's conclusion:
"Without dignity our lives are only blinks of duration. But if we manage to lead a good life well, we create something more. We write a subscript to our mortality. We make our lives tiny diamonds in the cosmic sands."
[Update] For a critique of Dworkin’s early work on rights and principles, see Roger Scruton, Fools, Frauds and Firebrands – Thinkers of the New Left (2015), Chapter 3. Of Dworkin’s style of argument, he says:
“ … While purporting to give a general theory of law, Dworkin’s real interest is one of advocacy, on behalf of a political position towards which, in the conservative view of things, the law is at most neutral, and in some respects deeply opposed.”
“… he assumed that it was never he but always his opponent who bore the onus of proof. For Dworkin, as for the writers for the New York Review of Books generally, the left-liberal position was so obviously right that it was for the conservative to refute it.”
“… For a conservative it is a matter of common sense that constant liberalization, constant remaking of law in the image of the elite lifestyles of New York, may eventually threaten the community with harm.”
In contrast to Dworkin’s principles, Scruton places the common law:
“…the knowledge that we need in the unforeseeable circumstances of human life … is bequeathed to us by customs, institutions and habits of thought that have shaped themselves over generations, through the trials and errors of people many of whom have perished in the course of acquiring it. Such is the knowledge contained in the common law, which is a social bequest that could never be adequately replaced by a doctrine, a plan or a constitution, however entrenched that constitution may be in a vision of individual rights. … The common law is concerned to do justice in the individual case, not to pursue some far-reaching reform of the manners, morals and customs of the community as a whole.”
Whereas Dworkin sees law as emerging from a political morality that is part of personal morality which in turn is a product of ethics, Scruton’s view is more recognisable:
“…the common law of the English-speaking people … [has] been in existence for a thousand years, with precedents from the twelfth century still authoritative in our twenty-first-century courts. It has developed according to an internal logic of its own, maintaining continuity in the midst of change and welding English society together through all national and international emergencies. It has shown itself to be the motor of history and the initiator of economic change ….”
The opposing camps – conservatives and new leftists (to follow the terminology of Scruton’s title) – have set up conceptual frameworks for working out their positions on issues. Are the positions fixed for all time? I doubt that conservatives now oppose women having the vote. If agreement can come with time, are values relative to social conditions? Not all conservatives would, I surmise, now side with Devlin against Hart on the issue of the lawfulness of homosexual practices, although many might. Some conservatives may accept laws for abortion procedures, just as some new leftists may be against them. The methods for working out positions on contentious issues do not dictate answers. Dworkin may only support legalisation of homosexual practices because of the weights he gives to the values he recognises, and Scruton may take the opposite view because of his individualised weightings. A person may be conservative in some ways and new leftist in others. Answers to social issues are individualised, even where people approach them in the same way. A vote count, or a dictator, may determine the course society will take.
Can a government be forced to avoid making immoral laws? Who is to say what is moral?
One way of settling this is by warfare. In the immediate aftermath of the Second World War the trials at Nuremburg imposed penalties on leaders who had acted according to the laws of the defeated government.
As a preferred alternative to warfare, is there a way, internal to the legal system under which it exists, of constraining the acts of a government?
To some extent, if there is a written constitution, government powers can be constrained, but only if the courts have the power to declare infringing legislation and governmental actions invalid.
Dworkin’s task was to find a way of extending the courts’ powers to hold immoral laws and governmental actions invalid.
The obstacle he faced, voiced by so-called conservatives, is the interpretation of history that recognises parliament as sovereign. This means that enacted laws are valid. There is no reasoning with such a position, because it takes sovereignty to be axiomatic.
Equally stubborn is Dworkin’s stance: laws are only valid if they are both properly enacted and morally right.
The difficulty with axioms is in proving that they are correct. You don’t have to be Gödel to realise that some things just can’t be proved using the methods of argument accepted within a system. Hence, warfare.
Dworkin can only attempt to persuade us that he is right. Many of his examples used to illustrate the unattractiveness of his opponents’ positions are appeals to emotion. But, the conservatives may say, just because an outcome is unattractive doesn’t mean it is illegal.
At its highest, Dworkin’s argument is that law and morality are not separate things. They are interpretive concepts.
Why, then, are people ordinarily punished for disobeying laws that they think are wrong? When does the majority view, expressed through the government, of what is a just law, become subject to the views of a small group, such as judges?
International laws try to provide an answer, through conventions and declarations. If governments accept these by ratification, they acknowledge that the final interpretation of their laws may be decided by international courts. But governments may refuse to ratify these conventions and declarations, or may “exit” from their jurisdiction.
The effort to get governments to do what they don’t want to do really comes down to political pressure, economic sanctions, and if all else fails, the horrifying disaster of warfare.
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[1] Looking back on this from the future, it can be accepted that refusing to address difficult hypotheticals is not a wise tactic. The Supreme Court in Miller v Prime Minister [2019] UKSC 41 at [43] said that it was no answer to the points before it that the court should decline to consider extreme hypothetical examples.