When trials do not have to be “according to law”

Does a trial always have to be "according to law"? No.

Being in accordance with the law is not a sufficient condition for a lawful conviction. If an appellate court finds, in the facts of the case before it, circumstances that should amount to a new defence, and if the court then proceeds to recognise and define that new defence, we would expect the court to apply the newly recognised defence to the appeal before it and to allow the appeal against conviction. In such a case the trial was not according to law, in the sense that the defence was not applied, even though at the time of the trial the defence was not recognised and the trial was according to the law as it was then understood to be. Here, the trial although according to law, was defective.

Neither is being in accordance with the law a necessary condition for a lawful conviction. If an appellate court decides that a previously recognised defence has been incompletely defined, and that now, because of the circumstances revealed in the appeal now being considered, an additional matter is an ingredient of the defence, what should we expect the court to do? Should it apply the newly recognised ingredient to the present case and dismiss the appeal against conviction because at trial the defence had not included the new ingredient? Or should it say that the new law applies to future trials, but this one is to be judged according to the old law? Usually, where the substantive law is changed, a defendant has the benefit of whichever version is more favourable to him. So we would expect the appellate court to say that the old law applied to this trial. If the court does the opposite, and says that the new law applied to this trial even though it was then unknown, the court is saying that the trial could result in a valid conviction even though it was not in accordance with the law as it was at the time of the trial. This latter is what happened in R v Gauthier, 2013 SCC 32 (7 June 2013).

At issue in Gautier was whether there had been sufficient evidence at trial to give a defence of withdrawal from participation (what Canadians call abandonment) an air of reality sufficient to require it to be left to the jury. This turned on what the ingredients of the defence were. Fish J, dissenting, shows that the majority have added a new ingredient in relation to aiders and abettors – the taking of reasonable steps to negative the effect of participation – to those that had previously been identified, namely an intention to withdraw, communicated unequivocally to the other participants. Indeed, the majority do not conceal the development of the defence that they are now undertaking: [38], [49]-[50].

The majority applied the new ingredient of the defence to the trial it was considering, and held that there was insufficient evidence of the taking of reasonable steps to negative participation: [62]-[64].

This means that the trial was not in accordance with the law that the Supreme Court was now recognising, but which was unknown at the time of the trial, yet the trial resulted in a valid conviction.

The rule of law requires that the law be ascertainable. This should mean that a person should be tried according to the law as it was ascertainable at the time of the alleged offending. See, for example, PGA v The Queen [2012] HCA 21, discussed here on 30 May 2012 (and referring to Christian v R (The Pitcairn Islands) [2006] UKPC 47 at [24], R v Rimmington [2005] UKHL 63 especially at [33], and Rogers v Tennessee, 532 U.S. 451 (2001)).

Another aspect of Gauthier is reliance on inconsistent defences. There is no rule against this, and all defences, whether raised by the defendant or not, for which there is sufficient foundation in the evidence, should be considered: majority at [34], Fish J agreeing at [97]-[99]. A "sufficient foundation" exists if there is evidence to give the proposed defence "an air of reality", in the sense that the evidence is reasonably capable of supporting the inferences necessary for the defence to succeed: majority at [60], and Fish J at [100] ("some evidence upon which a properly instructed jury could form a reasonable doubt").

Modifying, or applying, the law

Appellate courts sometimes have to extend, modify, or reshape existing law to recognise matters of public policy. More usually, they merely apply existing law. These contrasting roles are illustrated in two recent decisions of the Supreme Court of the United Kingdom.

When a statute is silent on the matter, how is a court to decide whether evidence should be ruled inadmissible because the way it was obtained departed from prescribed procedures? One criterion can be whether the error can be corrected by further investigation. If the test that was done destroyed a sample that cannot be replaced, the result of the test should be inadmissible.

This criterion was mentioned in Public Prosecution Service v McKee (Northern Ireland) [2013] UKSC 32 (22 May 2013). The difference between an unrepeatable test and a repeatable one is discussed at [13]-[15]: a sample collected by a breathalyser device is unrepeatable unless an error is immediately apparent (the machine fails to work properly), so if it is later discovered that an unapproved device was used the result is inadmissible. But if, as in this case, an unapproved electronic device was used to read the defendant's fingerprint, the error could easily be checked at any time by the defendant providing another sample for analysis by, for example, an independent expert. Where opportunities exist for checking a result by repeated testing, an error in the initial procedure should not require the initial result to be held inadmissible.

Well, one might wonder what has happened to the burden of proof here. The policy behind this shift is indicated at [17], and it seems that if the fingerprint was inadmissible here the implications for other cases would have been unacceptable, with limitations on the ability of the police to prove crimes and on the opportunities for defendants to exculpate themselves.

But still. Was the executive wasting its time when it made an Order for the prescribing of procedures for electronic reading of fingerprints? Has the prosecutor in effect asked the Supreme Court to repeal the procedures that were eventually prescribed? Could the Northern Ireland police in the relevant period (1 March 2007 to 12 January 2010) have used any fingerprint reading device they wished to? Apparently yes, for there was no approved device for the first two years of that period [3]. Obviously there was great pressure on the Court to find a solution and avoid the need for retrospective legislation.

Another recent decision of the Supreme Court of the United Kingdom finds the Court exercising its less adventurous function, that of applying established law, on two matters: when, for the purpose of measuring delay, is a person charged with an offence, and when does apparent bias exist arising from judicial comments adverse to the defendant: O'Neill v Her Majesty's Advocate (No 2) (Scotland) [2013] UKSC 36 (13 June 2013).

The law on when, for this purpose, a person is charged was established in Ambrose v Harris, Procurator Fiscal, Oban (Scotland) [2011] UKSC 43 (6 October 2011), discussed here on 7 October 2011. On the facts of O'Neill the defendants were well aware, at the time they now contended was when they were charged, that the police did not intend to charge them. They were like the defendant in Cadder v HM Advocate [2010] UKSC 43, discussed here, but without reference to the facts, on 27 October 2010, and absence of access to legal advice at that time was irrelevant because the defendant's knew their rights and exercised them [35]. So the first interviews, years before the later ones which was when the defendants were charged, was not the one from which time ran for the purpose of determining whether there was unreasonable delay in bringing them to trial.

As to apparent bias, in O'Neill there were two trials: the first involving alleged sexual abuse and the second, the following week, murder. After the jury at the first trial convicted them the judge said to the defendants: "...it is clear that you are both evil, determined, manipulative and predatory paedophiles of the worst sort." The same judge presided at the second trial. The Supreme Court referred to the established law on apparent bias [47], [49], including Helow v Secretary of State for the Home Department [2008] UKHL 62 (22 October 2008), discussed here on 23 October 2008, and held that here the judge had done no more than it was his duty to do [53]-[55]. The comments were not gratuitous and were within the scope of the proper performance of the judge's duties, as a risk assessment was required and the defendants were entitled to some indication of what sentence they might expect. Importantly, no-one involved in the trials raised at the relevant times any objection to the judge's conduct:

"[56] ... the fair-minded and informed observer would take account of the fact that it did not seem to occur to those with the most obvious interest to do so, or their advisors, that the judge had trespassed beyond the proper performance of his duties when he commented on the appellants' character."

New book: Criminal Procedure in New Zealand

Those of you who need to pay attention to the criminal law of our small but picturesque country should be interested in a new textbook, shortly to be published by Brookers – Thomson Reuters:
Criminal Procedure in New Zealand

By Professor Jeremy Finn, Don Mathias, and Ron Mansfield.
It was written in anticipation of the commencement of the Criminal Procedure Act 2011 on 1 July 2013.

Getting good policy past the Fourth Amendment

Maryland v King
USSC No 12-207, 3 June 2013 illustrates how interpretations of the Constitution of the United States of America can distort perceptions of what is reasonable search. The Supreme Court split 5-4 over whether a statute was in breach of the Fourth Amendment's prohibition of unreasonable search insofar as it permitted the taking of a buccal swab from a person arrested for a serious offence, for DNA analysis and comparison with samples from the scenes of unsolved crimes.

The opinion of the Court was that this was reasonable and not a breach of the Fourth Amendment.

The dissenters, whose opinion was delivered by Scalia J, reasoned that the Fourth Amendment has always prohibited search without probable cause, and as the legislation in question permitted the search without even suspicion of the commission of an offence other than that for which the person had been arrested, it purported to authorise search without probable cause. The only relevant reason the challenged aspect of the statute allowed the taking of this sample was for comparison with DNA from unsolved crimes.

The majority held that a person who has been arrested may be searched, and that such a search is not based on probable cause but rather on reasonableness. Here the taking of the sample was reasonable because it involved minimal intrusion and the use of the DNA was a proper law enforcement interest. What the statute authorised here was not relevantly different from obtaining the fingerprints of an arrested person.

It is difficult to see how obtaining a buccal swab from an arrested person and using it for DNA analysis and comparison with DNA from unsolved crime scenes could be objectionable. There are competing interests: the arrested person's privacy, and society's need to promote law enforcement.

The privacy interest here could be analysed into two parts. First, the intrusion involved in providing the sample. This is relatively trivial and has little weight. Second – potentially far more important – the risk that a false positive match will be reported in circumstances where the analysis cannot be repeated because the sample from the crime scene is no longer available for further analysis, combined with the circumstance of the person not being able to rebut the false match with robust evidence of alibi. The coincidence of those two circumstances would be highly improbable, and this second part of the privacy interest should also be given little weight.

Society's interest in law enforcement reflects equality under the law. It is unfair that some offenders should go undetected while others have to face justice. In return for obeying the law we are entitled to insist that everyone else obeys the law. It is true that convictions of the innocent threaten equal justice, so the law must ensure they are kept to a minimum and when they occur redress is made. But overall it seems uncontroversial that society's interests outweigh the privacy interests of the arrested person in this situation.

Identification of the better policy is not difficult; the problem for the Court was to make that policy compatible with the Fourth Amendment.

The trend of legislation concerning the taking of body samples for DNA analysis is to diminish privacy rights. For example – and no doubt your own legislature has done this – in New Zealand the Criminal Investigations (Bodily Samples) Act 1995 has, over the years, been amended to increase the range of offences, arrest for which can trigger the taking of a sample. Amendments have also permitted the making of compulsion orders by officials of lesser rank than had originally been required. The general reduction of recognition of individual privacy rights has also occurred in relation to search and surveillance, with the threshold for most searches being reduced and there also being some reduction in the rank of the official who may authorise the activity. We are also authorising our security agency to gather intelligence (spy) on more people within our country than previously.

To clothe these thoughts in respectable garb, one reaches for a book and, seemingly by chance, comes upon Jacob Bronowski's The Ascent of Man (1973). In Chapter 13 he said this:

"It is a tightrope that man walks, between his desire to fulfil his wishes, and his acknowledgement of social responsibility. ... We devise ethical strategies or systems of values to ensure that what is attractive in the short term is weighed in the balance of the ultimate, long-term satisfactions."

It seems that society accepts that individual privacy must increasingly yield to the needs of law enforcement. That is the climate of our times, and reasonable people do not place their own privacy interests above more pressing societal concerns. There must, however, in the context of DNA sampling, be adequate safeguards against erroneous convictions.

There are concerns with legislation that follows this pattern. What if the person was arrested wrongly, or was subsequently acquitted, but his DNA was found to match a sample from an unsolved crime? An innocent person would then have been subjected to the risk of incrimination that should more properly be borne by the convicted. And, more generally, why is this sort of legislation directed at finding matches only with unsolved crimes; shouldn't it also be developed to serve as a check against wrongful convictions of other persons? Can't a DNA sample be used to exonerate as well as to incriminate?

Pragmatism and lawfulness

State of NSW v Kable [2013] HCA 26 (5 June 2013) is a reminder of the law's foundation in pragmatism. To make the legal system serve its purpose of providing orderly resolution of conflicts, it is necessary that the orders of a court be treated as effective unless and until they are overturned on appeal. There would be chaos otherwise [39]-[40].

So an order of a court for detention of Mr Kable was effective even though the legislation on which it was based was subsequently held unconstitutional. The order had not been set aside during the period of his detention, and his detention was pursuant to lawful authority of the order. He had not been unlawfully imprisoned. The officials who enforced the court order were right to do so.

Leaving that decision to one side for the moment, we can reflect on other instances where the law has to be pragmatic. A judge, or any other official who makes legally binding rulings, may appear to be doing so in a routine way, until someone points out that he was improperly appointed. He did not lawfully hold the office he appeared to hold. What then of all the decisions he had made?

But an official's appointment need not appear to be routine. A usurper may seize power, as in a military coup, sack the judges and "appoint" new ones. Life must go on. Ordinary legal problems must be resolved, ordinary laws need to remain enforceable. The uncontroversial orders of the obviously unlawfully appointed judges need to be obeyed, simply to avoid a worse breakdown of the social order.

One way to determine the de jure validity of the acts of de facto officials is to ask whether the person was in fact competent to exercise the jurisdiction in question, and whether the act of the official ought to be recognised. Are there circumstances of reputation and acquiescence, sufficient to colour the appointment and the acts with validity? See, for example In re Aldridge (1893) 15 NZLR 361 (CA) where a person had been appointed to a non-existent judicial office and his appointment had been held by the Privy Council to have been invalid: Buckley v Edwards [1892] AC 387. The authorities concerning officials who appeared to have been validly appointed, but weren't, are reviewed in State v Carroll 38 Conn. 449 (1871). As to officials who have obviously been unlawfully appointed, and where colour of right does not apply, see Honoré, "Allegiance and the Usurper" [1967] Cambridge LJ 214, and for the law's need to take into account revolutions or coups d'etat, Madzimbamuto v Lardner-Burke [1969] 1 AC 645 (PC). See also Jarrett, "De Facto Public Officers: The Validity of Their Acts and Their Rights to Compensation" 9 Southern California Law Review 189 (1936), and Brookfield, "The Courts, Kelsen, and the Rhodesian Revolution" (1969) 19 University of Toronto Law Journal 326.

Old stuff, discussion of which has no doubt been the foundation of many academic careers. I only mention it here because I am being nostalgic. Basically it is all about when and how the law should catch up with reality. The answer is not necessarily confined to whether the official was validly appointed or whether the law was valid.

So too in Kable, the question was more complex than mere validity of the law: [22]. The position, long established in Australia, is that "the orders of a federal court which is established as a superior court of record are valid until set aside, even if the orders are made in excess of jurisdiction (whether on constitutional grounds or for reasons of some statutory limitation on jurisdiction)" [32]. The effect given to the order that was made without jurisdiction comes from the status of the court, not from the invalid legislation, and the effect of the order continues until it is set aside on appeal [36]. Here, the order detaining Mr Kable had been set aside by the High Court in 1996, but that was after he had been released from custody.

This was an unsuccessful action for damages for false imprisonment. Mr Kable's position may be likened to that of a person who has served a sentence of imprisonment but whose conviction was subsequently quashed. The remedy, if there is one (and states make their own – pragmatic - arrangements to deal with these situations), is not an action for damages in tort for false imprisonment, for the imprisonment was lawful.

Giving reasons for dismissing appeals

The constitutional importance of reasons being given by an appellate court when it dismisses an appeal is emphasised in Laing v The Queen (Bermuda) [2013] UKPC 14 (14 May 2013):

"[14] ... All three members of the Board are well aware, from their own experience, of the pressures that are endemic to the criminal appeal courts. But the interests of justice must come first. Once again it must be stressed that an appellant has a constitutional right to be given the reasons for the court's decision if his appeal is dismissed. The more serious the offence of which he has been convicted and the more severe the sentence that has resulted from it, the more important it is that this right should be given effect. This should be done by giving written reasons for the decision or, where they have been given orally, for them to be recorded so that they can be transcribed into written form as soon as possible. Only then can one be certain that the constitutional right has been satisfied.

"[15] It will always be a matter at the court's discretion how much need be said, and whether it should deal with every point that has been raised in the course of the argument. But the guiding principle is one of fairness. The appellant is entitled to be assured that his case has been properly considered and to know why his appeal did not succeed ... ."

But here there was no reason to think that the conviction might be unsafe, and it could not be quashed simply because the appellate court had not provided its reasons for dismissing the appeal. A similar position had occurred in Maharaj v The State (Trinidad and Tobago) [2008] UKPC 28 (8 May 2008).

A failed attempt at retrospective criminalisation

Where an "offence is committed by an omission to perform an act that by law there is a duty to perform" (s 4.3(b) of the Criminal Code (Cth), in the form it was at the time relevant to Director of Public Prosecutions (Cth) v Keating [2013] HCA 20 (8 May 2013)), the duty must exist at the time of the commission of an alleged offence. So much is clear from the use of the present tense, as the High Court of Australia unanimously held in Keating at [49].

The offences alleged in Keating, essentially failure to inform the Social Security department of changes in circumstances that may have been relevant to entitlement to receipt of benefit payments, were against s 135.2(1) of the Code. The requirement there, of engaging in prohibited conduct, was that there must be a duty not to omit to disclose the relevant information. A duty of disclosure was introduced (as a result of DPP (Cth) v Poniatowska, noted here on 27 October 2011) by legislation having retrospective effect, but the existence of retrospective effect did not of itself mean that it engaged with the provisions creating the relevant offence: Keating at [47].

"[48] It is not to the point to observe that ignorance of the law affords no excuse or that the prosecution is not required to prove an intention to breach a legal duty. The submission ignores that the failure to do a thing is not an offence in the absence of a legal duty to do the thing [footnote 35: "Code, s 4.3(b)"]]. As explained in Poniatowska, s 4.3 of the Code is a reflection of an idea that is fundamental to criminal responsibility: that the criminal law should be certain and its reach ascertainable by those who are subject to it [footnote 36: "[Poniatowska] [2011] HCA 43; (2011) 244 CLR 408 at 424 [44] per French CJ, Gummow, Kiefel and Bell JJ; and see Glanville Williams, Criminal Law: The General Part, 2nd ed (1961) at 579-580; Ashworth, "Public Duties and Criminal Omissions: Some Unresolved Questions", [2011] Journal of Commonwealth Criminal Law 1"]. This idea underpins the strength of the presumption against retrospectivity in the interpretation of statutes that impose criminal liability. Mr Bennion explains the principle in this way [footnote 37; "Bennion on Statutory Interpretation, 5th ed (2008) at 807 (footnotes omitted)"]:

"A person cannot rely on ignorance of the law and is required to obey the law. It follows that he or she should be able to trust the law and that it should be predictable. A law that is altered retrospectively cannot be predicted. If the alteration is substantive it is therefore likely to be unjust. It is presumed that Parliament does not intend to act unjustly."

So in Keating the new legislation, aimed at overcoming the difficulty identified in Poniatowska, was inadequately drafted to overcome the presumption against unjust legislative intent. It did not render s 4.3(b) of the Code nugatory. It did not make a person criminally liable for past failure to perform what was not then an obligation.

Judicial redefinition of veracity evidence

In our Evidence Act 2006, the veracity rules concern particular kinds of character evidence. They may be used by a defendant to show a propensity to tell the truth, or by a prosecutor to show a propensity to tell lies. Either way, evidence of veracity is only admissible in limited, specified, circumstances.

Confronting a witness with a prior inconsistent statement is not of itself a challenge to the witness's veracity, because veracity refers to a general tendency, not to a particular instance.

Evidence that is admissible independently of the veracity rules is not therefore subject to the constraints of those rules. The veracity rules can permit the adducing of evidence that would not otherwise be admissible.

There are limits on the use of leading questions in examination and in re-examination of a witness. In re-examination a witness may be asked to clarify an ambiguity or an apparent contradiction in evidence given in cross-examination. The witness might also, in re-examination, be presented with a prior inconsistent statement – inconsistent with what the witness said in cross-examination - and asked to explain the inconsistency. This is not, of itself, necessarily cross-examination, although whether it is, and therefore whether it is only permissible if the witness is hostile, is a matter to be determined as an exercise of judgment in the particular case.

A defendant who uses a complainant's prior inconsistent statement is not using it as evidence of a lie, but rather as evidence of the truth (R v Davidson [2008] NZCA 410). But even if the prior inconsistent statement was being used as evidence of a lie, it would not for that reason alone be evidence of (lack of) veracity: it is particular, not evidence of a general disposition. The prior inconsistent statement is admissible as soon as the inconsistency emerges, and the veracity rules are irrelevant.

And obviously, a defendant is not shielded, by the limits on the use of evidence of veracity, from his own prior inconsistent statements (R v Tepu [2008] NZCA 460, [2009] 3 NZLR 216). The veracity rules are again irrelevant, the prior inconsistent statements being particular in nature, not evidence of a general propensity to lie.

These points are made in Hannigan v R [2013] NZSC 41 (26 April 2013). They certainly seem obvious, although the Court split 4-1. The Chief Justice dissented on the grounds that the rule prohibiting cross-examination by a party of its own witness (s 94) should have been applied. This conclusion follows from a different judicial assessment of the quality of the questioning than was made by the majority.

The case was decided on that difference, but the obiter nature of the judicial observations on the veracity rules should not detract from their authoritative status. They give guidance that is obviously of assistance, and (I sarcastically add) at the current rate at which the Court refuses leave to appeal – because counsel don't identify appropriate grounds – we would otherwise have to wait hundreds of years for another opportunity for the Court to clarify the veracity rules.

Anyway, before Hannigan the law on the admissibility of evidence of veracity was uncertain, and the appellant's case was indeed arguable. The dissent illustrates this.

Elias CJ considered the relationship between s 37(4) and s 94. She held that in this case the questions in re-examination were leading and cross-examination [33], [36], and that therefore hostility had to be established. She accordingly disagreed with the majority on the nature of the questions in this case [40]-[41]. She also held that a finding of hostility is always required before a party can cross-examine its own witness, irrespective of whether a prior statement is independently admissible [43]. Significantly, Elias CJ pointed out [46] that the majority approach to the definition of veracity evidence in s 37(5) ignored the particular aspect of the definition: a disposition to refrain from lying, whether generally or "in the proceeding". She took a wide view of when a witness might be held to be hostile [52], and concluded that in this case the judge could, after proper inquiry, have concluded that the witness was hostile [57].

Recently I heard someone say that dissenting judgments tend to become the law in a few decades. No they don't. Dissents very rarely become the law, and it is only because of this rarity that they are noticed when they do, and their tendency to become law is exaggerated. It is not unusual for judges to disagree about the law and about its application to the circumstances of the case they have to decide.

But the effect of Hannigan is to iron out a crinkle in the definition of veracity evidence that occurs in s 37(5). The definition as enacted is too broad insofar as it includes a disposition to lie "in the proceeding". The majority have interpreted s 37(5) by ignoring that inclusion, and have thereby restored the original intention behind the legislation: to restrict evidence of collateral issues. As the majority note at [137], the Law Commission in "The 2013 Review of the Evidence Act 2006" NZLC R 127 (February 2013) has recommended a change to the definition of veracity evidence along similar lines (see 6.56 – 6.69 of the Report). The majority in Hannigan has in effect changed the definition in response to the difficulties that the Law Commission has summarised. [Update: Section 37(5) has been amended from 8 January 2017 by deletion of the reference to "in the proceeding".]

While looking at the Law Commission's report I should say something about its treatment of concerns that have been expressed about s 30 of the Evidence Act 2006. I agree with the Commission's recommendation that the section, which addresses when improperly obtained evidence may be excluded, does not need changing except in a minor way that the courts have anticipated. Decisions under s 30 have troubled academic commentators, who focus on the very few cases that are apparently wrong, rather than on how the section works satisfactorily in the overwhelming majority of cases. I often encounter younger colleagues who, just out of law school, regard s 30 as a "whatever-the-judge-wants-to-do" sort of provision. I hope that attitude does not reflect a failure of teaching. It is much more interesting to work out how judicial decisions under s 30 may be predicted, than to offer unconstructive and uninstructive criticisms.

Search and the implied licence to enter private property

In criminal law the facts can be simple but the law complex. This is why criminal lawyers appear to some observers to be vastly more intelligent than their colleagues who practise in civil law.

The implied licence to enter private property can give rise to differences of judicial opinion on whether a police officer carried out a search and if so whether it was done lawfully.

In Florida v Jardines, USSC No 11-564 the Court split 5-4 on the lawfulness of a search where an officer had taken a drug dog on a lead to the front door of a house intending to knock and speak to the occupier. The officer was acting on information that drug offending was occurring on the property. The dog indicated the smell of drugs and the officer left the property with the dog and obtained a warrant to search the address. When the warrant was executed evidence of cannabis offending was found.

The opinion of the Court, delivered by Scalia J, was that the officer with the dog had carried out a search in breach of the implied licence to enter and knock. The main grounds for this decision were trespass, but in a concurring opinion Kagan J, joined by Ginsburg and Sotomayor JJ, the alternative ground of breach of privacy was advanced as an easier answer. The dissent was delivered by Alito J, joined by Roberts CJ, Kennedy and Breyer JJ.

The facts invite consideration of a variety of issues:

• What was the significance of the presence of the dog?
  
• Do the police have common law powers that ordinary members of the public do not?
  
• Should lawfulness here be determined by considerations of trespass or of privacy?
  

Alito J denied that the implied licence that qualifies trespass had ever been held to have prevented an officer bringing a dog onto the property. Obviously that point is not particularly significant because the law hasn't yet anticipated every possible occurrence. Absence of authority for a proposition is not authority against the proposition, although it can suggest that the conduct has previously been thought reasonable.

Alito J pointed out that the law has never attempted to distinguish categories of visitors as being welcome and therefore within the implied licence or unwelcome and therefore outside the licence. Any visitor with a lawful purpose may enter at a reasonable time of day and walk on the path that typically approaches the front door and, without lingering, knock on the door in an attempt to speak to an occupant. The police may do this too, and they do not search by simply approaching the door to knock and talk, even where the intention is to talk with a view to obtaining evidence against an occupier.

And if, continued Alito J, the officer in approaching the door with that intention, happened to smell evidence of drug offending, that information is not obtained outside the scope of the implied licence. So too for things seen and heard from a lawful vantage point. The officer is permitted to smell, hear and see what any person might detect on a lawful approach to the front door (citing State v Cada, 129 Idaho 224, at 232, 923 P. 2d 469 at 477).

Given that the officer could use his own nose, continued Alito J, what was wrong with him using the dog? There was no authority prohibiting the officer from having the dog with him, and indeed there has been no case in 800 years in which a tracking dog has been held to create a trespass. So, concluded the dissent, trespass is not a proper basis for holding the present conduct unlawful.

Nor, continued Alito J, could the occupiers have any reasonable expectation of privacy in relation to odours emanating from unlawful activities and reaching places where members of the public may lawfully stand. This is not the same as the use of new technology to enhance the sensing of information. It would hamper legitimate law enforcement activity if the dog's nose were to be equated with new technology.

However the dissent must now be regarded as incorrect in the jurisdictions in which Jardines applies. This is not to say that elsewhere the dissent's view of the law should not be accepted. Although the Court was concerned with constitutional interpretation, the origins of the law against unreasonable search and seizure are in the common law of England. While originating in the customs of England, the common law can develop differently according to social needs in different places. And a change in the common law brought about by decisions of the European Court of Human Rights in relation to judicial decisions made in Britain (for example as occurred in Malone v United Kingdom [1984] ECHR 10, overturning Malone v Metropolitan Police Commissioner [1979] Ch 344) does not necessarily affect the common law of another country. So although Jardines is not a "common law" decision in the narrow sense that the term "common law" is used in the United States, it is of interest wherever the meaning of search and the scope of police powers in relation to private property have to be decided.

The opinion of the Court in Jardines therefore is not binding but is "of interest" to courts outside the jurisdiction in which it applies. Scalia J, after deciding that the investigation took place in a constitutionally protected area, turned to consider whether the intrusion was authorised. Inevitably the relevant common law decision, known to the Founders and repeating an ancient custom of the realm, is Entick v Carrington, 2 Wils. K.B. 275, 95 ER 807 (K.B. 1765). As every lawyer knows, or once knew, this case reminds us that "our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave."

This rule, underlying the Fourth Amendment, raised the question whether a licence to enter could be implied in the circumstances of this case. Scalia J held that introducing a trained police dog to explore the area around the home was not customarily recognised as being within an implied licence to enter. The scope of the licence to enter and knock on the front door was limited both to a particular area and to a particular purpose. There was no invitation to the officer to enter and conduct a search. It was not the dog that was the problem, so much as the purpose of the entry. The common law would not licence a person who, remaining on the path to the door, used binoculars to peer through a window.

The Fourth Amendment has a property-based interpretation, supplemented in appropriate cases with a privacy based interpretation. Where a case can be decided on property-based grounds there is no need to add an inquiry about whether the defendant had a reasonable expectation of privacy. Here, reasoned Scalia J, the use of the dog and questions about privacy interests in respect of odours emanating from illegal activities on the property, were privacy issues and did not need to be considered because the case turned on property interests. The point was that the officer entered to conduct a search and that was outside the implied licence. Since there had been an unauthorised search, the Court upheld the Supreme Court of Florida's decision that the trial judge had correctly excluded the evidence obtained through entry with the dog and execution of the improperly obtained search warrant.

It is not inevitable that issues concerning searches have to be analysed in terms of first property rights, then if necessary, privacy rights. The reverse can also work, as is illustrated by the concurring opinion in Jardines, and, for an example from further afield, in Hamed v R [2011] NZSC 101, at [163]. Hamed also contains some controversial remarks from the Chief Justice about whether the police have common law powers that ordinary people do not have (she held that they don't), and although the other members of the Court did not directly address that point the Court of Appeal has subsequently decided – although in my view by a bit of a stretch - that Hamed is consistent with the view that the police do have additional common law powers: Lorigan v R [2012] NZCA 264. The consequences of illegality may also differ between jurisdictions, and may be determined by legislation. The interpretation in Hamed of the relevant statute was discussed here on 19 September 2011. Some attempt has been made in New Zealand to codify the law of search: Search and Surveillance Act 2012. In circumstances like those in Jardines the relevant section would be s 20, but this does not specify the bounds of an implied licence. The consequences of a breach of an implied licence are left to be determined in the same way as before the Act (which is due to come fully into force by 1 April 2014, if not earlier by Order in Council). The position is summarised in Adams on Criminal Law – Rights and Powers, para SS20.05:

Where the constable's reasonable suspicion as to the commission of an offence has been derived from the unlawful actions of the police, the exercise of the warrantless search power may be unreasonable in terms of s 21 of the New Zealand Bill of Rights Act 1990: see, for example, R v Hjelmstrom (2003) 20 CRNZ 208 (CA) (consent to presence on property obtained through misleading the occupant). See also Lord v Police (1998) 5 HRNZ 92 (HC). However, even where the police presence at a place is without lawful authority, drugs seized in the course of the exercise of the search power on reasonable grounds may be admissible under s 30 of the Evidence Act 2006: see, for example, Eruera v R [2012] NZCA 288 (cannabis seizure in course of executing invalid search warrant for stolen property). For an example of evidential material discovered in the course of an unlawful search being held to be inadmissible, see R v Yeh [2007] NZCA 580.

This new legislation gives no guidance to the police about what they may do when they enter private property subject to an implied licence.

Your own jurisdiction may well have the same uncertainties as mine. To what extent do common law powers exist in the context of legislation? Do the police have greater common law powers than ordinary members of the public regarding entry onto private property? What are the terms of any implied licence to enter that apply to police officers? Does the characterisation of an entry as a search depend on privacy or on property rights? What sort of detection devices may be used in relation to private property pursuant to the common law?

People unfamiliar with the law's delays might be surprised that these questions can remain after 800 years. Good legal advice would be to set aside a further 800 years for the answers to emerge.

Informed advice on consequences of plea: changing perceptions of fairness

Sometimes when judges make new rules they apply retrospectively to cases that have already been decided. Obviously this could cause chaos, so there are limitations that confine the situations in which this retrospectivity can apply. In the United States, as we saw here on 21 February 2008, the rule in Teague v Lane, 489 U.S. 228 (1989) recognises two exceptions to the general rule that decisions do not apply retrospectively: where laws proscribing conduct have been declared unconstitutional, and where new rules concern the fairness of trials. Teague has been applied recently in Chaidez v United States
USSC No 11-820, 20 February 2013.

In Chaidez the appellant sought application to her case of a rule that had been declared by the Supreme Court after the proceedings in her trial had been finalised. The rule is that counsel must advise a non-citizen client of the immigration status implications of a plea of guilty: Padilla v Kentucky, 559 U.S. 356 (2010). Ms Chaidez had not been advised that her permanent residency would be revoked and that she faced mandatory removal as a result of her guilty pleas and convictions for mail fraud charges that were classified as aggravated felonies.

The Court held that the Padilla rule did not apply retrospectively.

This rather surprising result arose from what the majority regarded as the first issue which was whether advice about deportation came within the Sixth Amendment right to counsel. Does the right to counsel include the right to advice about a collateral matter – the consequences of a conviction on immigration status? Before Padilla the states had almost unanimously held that it does not. Padilla created a new rule for most jurisdictions. This new rule did not apply to Ms Chaidez's case because (the opinion of the Court is not clear on this but one can infer the reason) it did not, in terms of Teague, concern the fairness of the criminal proceedings against her.

Sotomayor J, joined by Ginsburg J, dissented. They reasoned that Padilla did not create a new rule but it merely applied the established rule that legal representation must be to a standard consistent with prevailing professional norms (Strickland v Washington, 466 U.S. 668 (1984)). Those norms had developed to require advice about the immigration implications of a guilty plea. Padilla did not apply a direct-or-collateral consequence approach to the Sixth Amendment, and Ms Chaidez's legal representation had fallen short of the required standard.

Outside the United States a retrospectivity issue of the kind that arose in Chaidez would probably be resolved by asking whether the defendant should have been advised of the consequences of conviction, including deportation. The rules of professional conduct should indicate the extent of a lawyer's obligation to advise a client of the consequences of a decision. For example, the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 [NZ], rule 13.13.1:

"When taking instructions from a client, including instructions on a plea and whether or not to give evidence, a defence lawyer must ensure that his or her client is fully informed on all relevant implications of his or her decision and the defence lawyer must then act in accordance with the client's instructions."

A retrospectivity issue would arise if standards had changed so that although advice on immigration status might not reasonably have been required to have been given at the time the client entered a guilty plea, it would be required now. This is an artificial issue here, as it has long been recognised that such advice must be given. But if there had been a change in this, so that "all relevant implications" now include the effect of a conviction on immigration status, would all defendants who had previously entered guilty pleas without that advice now be able to have their convictions quashed and their pleas re-taken?

While it is true that standards of fairness change over time, defendants who are still around to complain of treatment that by current standards was unfair are likely to have a remedy. See Krishna v The State (Trinidad and Tobago) [2011] UKPC 18, discussed here on 12 July 2011.