Monday, February 24, 2014

The Canadian slant on trial fairness and the stay of proceedings

When prosecution misconduct imperils the fairness of a trial, and no other remedy can be found to eliminate any real risk that the trial will be unfair, it is the duty of the judge to stay the proceedings.

This is a corollary of the defendant’s absolute right to a fair trial. If there is a real risk that the trial will be unfair, there is no next-step of balancing the public interest in proceeding against the defendant’s interest in trial fairness.

There are two sorts of relevant prejudice that can arise from the misconduct of officials. In Canada they are described as follows. The first, the main category, is prejudice to the defendant’s right to a fair trial. The second or residual category is prejudice to the integrity of the judicial process, and here it is necessary for the judge to consider whether allowing the proceedings to continue would lend judicial condonation to the impugned conduct.

One may wonder whether the Supreme Court of Canada thinks that the defendant’s right to a fair trial is an absolute right (and see R v NS, discussed here on 20 December 2012). In an obiter error it has said that, if it is uncertain that a stay of proceedings is warranted as a response to prejudice to trial fairness that cannot be remedied in any other way, the judge must balance the interests of the defendant against the interests of society in proceeding with the prosecution: R v Babos, 2014 SCC 16 (21 February 2014), at [32] – [33] (and subject to [40] quoted below), purporting to follow R v Regan, 2002 SCC 12 (14 February 2002) at [54], [57].

I say “error” and “purporting” because in Regan, where the Court split 5 – 4 on the facts, the majority attached the balancing exercise as a final consideration in relation to prejudice in the “residual” category, that is, the category that does not include trial unfairness. No balancing was required in relation to the main category, trial unfairness. That was a correct application of Canada (Minister of Citizenship and Immigration) v Tobiass, 1997 CanLII 322 (SCC) at [91] – [92], which plainly concerned the residual category of occasions where impropriety by officials may give rise to prejudice to the integrity of the judicial process. There was no authority for applying balancing to the main, trial fairness, category of prejudice.

This point could be overlooked, for the majority in Babos said at [40]:

“ ... When the main category [trial fairness] is invoked, it will often be clear by the time the balancing stage has been reached that trial fairness has not been prejudiced or, if it has, that another remedy short of a stay is available to address the concern.  In those cases, no balancing is required.  In rare cases, it will be evident that state conduct has permanently prevented a fair trial from taking place.  In these “clearest of cases”, the third and final balancing step will often add little to the inquiry, as society has no interest in unfair trials.”

Requiring the “clearest of cases” before dispensing with the balancing exercise is hardly a protection of the defendant against a real risk of an unfair trial. The embarrassment could be avoided if one were to pretend that a “real risk” is the same thing as “the clearest of cases”. But it isn’t. Does society have an interest in proceeding with trials that may well be unfair, and only staying those which must be unfair?

In Babos Abella J dissented on the assessment of the prejudice to the integrity of the judicial process in this case. She did not mention the trial fairness category of prejudice.

The critical misconduct in Babos was threats by a prosecutor that the defendant would face more charges if a guilty plea was not entered [10], [59] – [71]. The level of residual prejudice that these gave rise to must be assessed in the circumstances of the case. It was significant here that a threat had occurred before the defendant had obtained sufficient disclosure to make an informed decision as to plea. Even so, there were circumstances that reduced the prejudice, and on balance the majority concluded that a stay was not warranted.

Sunday, February 23, 2014

Two occasions for caution: dock identification, and witnesses who may have an improper motive

Where a witness has had an opportunity at an identification parade to identify the defendant but has failed to do so, the prosecutor should not invite the witness to identify the defendant in the dock at trial, and should be at pains to avoid a dock identification: Lawrence v The Queen (Jamaica) [2014] UKPC 2 (11 February 2014) at [11].

The Board summarised its dicta in previous cases on dock identification and the warnings that must be given by a trial judge when they are permitted, applying in particular Holland v HM Advocate [2005] UKPC D1, mentioned here on 26 February 2008 in relation to Pipersburgh v R (Belize) [2008] UKPC 11, and again here on 26 April 2006 in relation to Edwards v R (Jamaica) [2006] UKPC 23.

There is also in Lawrence a summary of the law on when the judge should warn the jury that a witness’s evidence may be tainted by an improper motive. These warnings need to be tailored to the circumstances of the case and the overriding rule is that the defence must be put fairly and adequately [15] – [18].

Saturday, February 22, 2014

Provocation and law

For an interesting authoritative – subject to statutory variation - survey of the law of provocation, see Daniel v The State (Trinidad and Tobago) [2014] UKPC 3 (13 February 2014).

The partial defence of provocation has been repealed in some jurisdictions, including mine, making it difficult for me to get up enthusiasm for a detailed discussion. This mental sluggishness might also be found in students who no longer encounter what was an intellectually stimulating part of the criminal law course. Still, law wasn’t invented to amuse lawyers, was it?

What would be interesting to discover, in places where there is no longer a partial defence of provocation, is whether juries are nevertheless instinctively applying something similar – perhaps a commonsense feeling for justice? – and returning verdicts of guilty of manslaughter instead of murder in cases where the result would have been the same if the law of provocation had applied.

There is, in Daniel, the generally important point that [13], [56] the judge must leave defences to the jury if they are available on the evidence, even if the defendant has not relied on them. See also Holt, discussed here on 21 February 2014.

Harmony was found [33] with the Supreme Court of Canada’s conclusion on self-induced provocation in Cairney v The Queen [2013] SCC 55, mentioned briefly here on 1 November 2013.

Is a partial defence of provocation inconsistent with the so-called felony murder rule whereby a killing in the course of the commission of certain offences is automatically murder regardless of the defendant’s intention? The answer [46] is yes, the felony murder rule (again, in jurisdictions where it or its equivalent applies) makes the defendant’s state of mind irrelevant and there is no room for the defendant to say he acted under provocation.

The Board in Daniel swept away [57] the Camplin rule which had required provocation to be left to a jury if there was evidence of loss of self-control regardless of whether any reasonable jury could possibly find that a reasonable person with the defendant’s characteristics would have responded as the defendant did. In enacting the legislation under which Camplin was decided, “it was not the intention of Parliament to legitimise a perverse verdict.”

This sort of perversity – acquitting where there is insufficient evidence to support a defence – is different from the sort of perversity where the jury recognises a defence which the law has purported to remove. In the latter, the jury is applying social norms that it considers to be morally right. These norms it regards as morally binding and therefore justly applied, although one may doubt whether that is an application of law (see generally, John Gardner, Law as a Leap of Faith, 2012 OUP, reviewed here on 6 July 2013). Arguably it is, because it is permitted by the law; through the concept of reasonableness natural laws are incorporated into positive law.

Friday, February 21, 2014

And what are our fees from crime?

What does a judge need to consider at trial if a defendant’s evidence is not accepted?

“The case in which a defendant advances a defence which may well be disbelieved imposes a particularly acute duty on the trial judge. It is essential that he consider carefully what the position will be if the defendant's account is indeed rejected. Sometimes the result will be that the only proper verdict will be guilty, and indeed sometimes this may be expressly conceded on the defendant's behalf. But very often it will be necessary for the jury to be required to apply its mind to the remaining steps to conviction, and it is especially important that it be reminded that it must do so because defence counsel will normally not have addressed other possible obstacles to conviction which are inconsistent with the case being advanced by the defendant in evidence. A simple instance is the defendant accused of murder who advances an alibi which is seriously damaged in cross examination of the several witnesses, but whose actions, assuming that he was indeed the culprit, may not amount to murder, for example because there is a genuine decision to be made about intent. There are many other examples.”

Holt v Her Majesty’s Attorney General on behalf of the Queen (Isle of Man) [2014] UKPC 4 (19 February 2014) at [24]. Compare Huynh v The Queen [2013] HCA 6 discussed here on 15 March 2013 for situations where getting to the real issues in a complex case is appropriate. And on considering defences not expressly relied on, see R v Pickton 2010 SCC 32, discussed here on 6 August 2010.

Holt will be of interest to all lawyers who receive funds or property from clients. A cynic might say that the creation of money laundering and proceeds of crime offences gives the Crown an unfair advantage in the scramble for revenue. But we who take a more balanced view would agree that it would not be possible to prevent offenders from benefiting from their offences if lawyers were exempt from proceeds of crime laws.

In Holt the key issue was whether the defendant, a lawyer, had known or suspected that funds were the proceeds of crime. This requirement of knowing or suspecting is commonly found in proceeds of crime legislation.

“[25] ... It would not be necessary for the appellant to know that the law labelled what occurred a crime, still less which crime, if she knew or suspected facts which amounted to a crime of some kind. But it was necessary for the prosecution to prove that she had applied her mind to the circumstances in which the money had been produced. Actual knowledge or suspicion that there was criminal conduct of some kind involved is an essential element of the offence. It was not enough to show that she ought to have realised that some crime, such as theft or obtaining by deception, might well have been involved. Knowledge or suspicion that to receive the money ... would be irregular, in the sense of a breach of trust, is not automatically the same as knowledge or suspicion that a crime is involved.”

And in the circumstances here, even agreeing in cross-examination that she knew the money couldn’t have “honestly” been obtained by the client, did not necessarily amount to admitting knowledge of more than an irregularity that was less than a crime. The issue of knowledge or suspicion that the money was proceeds of crime had not been left to the jury in this trial, the defence having been absence of knowledge of the source of the money rather than its quality as proceeds of crime.

“[26] It is no answer to this defect [omission of a direction on the need to prove knowledge or suspicion that the money was proceeds of crime] that the appellant was not advancing this defence, either in her evidence or in counsel's speech on her behalf. It is precisely because she was advancing a different, and as the jury found untruthful, version of events, that neither she nor counsel did so. It is precisely in these circumstances that the duty falls upon the judge to address the elements of the offence if, as can be seen to be at least possible, the jury rejects her evidence.”

In the circumstances it was not inevitable that the jury would have found the defendant guilty if it had been properly directed, and an acquittal on the main charge could have led to acquittals on other charges. There had also been some unfortunate remarks from the judge (who on the Isle of Man is called the Deemster) which could have given the jury the impression that the judge thought the defendant was guilty. All convictions were quashed, and the question of retrial ([32] “the public interest is most unlikely to call for a re-trial”) reserved for submissions to be made to the Board.

Friday, February 14, 2014

The view from above

Just as cirrocumulus stratiformis clouds are broadly similar to cirrus spissatus undulatus clouds, and most of us don’t really pay much heed to the difference between them, so too is Milne v The Queen [2014] HCA 4 (14 February 2014) broadly similar to Richardson v DPP [2014] UKSC 8, discussed here on 7 February 2014.

Both cases take a purposive interpretation of specific legislation. In Milne an exchange of property with intent to conceal the profit to avoid paying tax did not make the property an “instrument of crime” for the purposes of s 400.3(1) of the Criminal Code (Cth). The property disposed of was not thereafter “used” in the commission of a relevant offence.

Not too far removed from a hypothetical considered in Richardson: the shop’s lawful activity of selling soap would not have been made unlawful if a sales assistant were being paid below the minimum wage.

But we lawyers, whose heads are definitely not in the cirrus, can see the difference as well as the similarity.

Thursday, February 13, 2014

One angry juror

The integrity of the trial process was called into question in Smith v Western Australia [2014] HCA 3 (12 February 2014). After a jury had returned guilty verdicts and had been discharged, a note was found in the jury room. It was addressed to the judge and said:

“I have been physically coerced by a fellow juror to change my plea to be aligned with the majority vote. This has made my ability to perform my duty as a juror on this panel [sic].”

The Court qualified the rule that a jury’s deliberations are private and evidence of them will not be received:

“[45]  If public confidence in the system of criminal justice is to be deserved, criminal misconduct calculated to prevent free and frank deliberation by a jury must not be kept secret lest it become endemic. In such cases, the application by the courts of the exclusionary rule to preserve finality would be contrary to the first duty of the courts to preserve the integrity of the system of criminal justice which they administer.”

There is a threshold to be crossed before the issue is opened:

“[50] A court should be careful not to jump to the conclusion that the line has been crossed between robust debate and unlawful coercion; but where there is an allegation by a juror capable of belief that an incident has occurred which could be regarded as unlawful intimidation, a court of appeal is warranted in entertaining that allegation as part of its consideration of whether a miscarriage of justice has occurred.”

Here there was no challenge to the correctness of the verdicts – in the sense that the appellant accepted that they were reasonably open to the jury on the evidence, but it was argued – and accepted by the Court – that this case involved evidence, that was capable of belief, that raised reasonable ground for suspicion that one juror had exercised unlawful intimidation over another, and “on the face of things, there has been a serious breach of the presuppositions of the trial” [54].

For those of us who have to understand the workings of s 232 of the Criminal Procedure Act 2011 [NZ] it is useful to see how it would fit to these circumstances. Section 232(4) includes in the definition of a miscarriage of justice an “irregularity, or occurrence in or in relation to or affecting the trial” that has a specified consequence. The note in Smith is evidence of such an event. It is not contended that the outcome of the trial was affected - one of the ways in which an irregularity can amount to a miscarriage of justice: s 232(4)(a) – so the argument is directed at satisfaction of the alternative consequence of the irregularity: it made the trial unfair: s 232(4)(b). The common law establishes that an unfair trial is one where the law was not properly applied to facts that were determined impartially, and here it is the impartiality of the determination of the facts that is relevant.

Smith illustrates how a verdict may be correct - in the sense that it was open to the jury to convict the defendant - but it may still have been arrived at in a way tainted by impartiality. A biased decision can be correct, but nevertheless be arrived at unfairly.

And here is a tutorial question: if a majority verdict could have been returned in this case, would it matter that the one dissenting juror may have been unlawfully threatened but still had refused to join the majority? And alternatively, if a majority verdict could have been returned, would it matter that the threatened juror had joined in the verdict which ultimately was unanimous?

Wednesday, February 12, 2014

Stop the tendering for sentence!

Overruling an established sentencing practice, the High Court of Australia held that, at sentencing, the prosecutor should not make submissions on the appropriate range of sentences available to the court: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 (12 February 2014).

The majority (French CJ, Hayne, Kiefel and Bell JJ) held that it is wrong in principle for the prosecution to do so. An error in sentencing can be identified without the need to ascertain an appropriate range [27] – [28], and it is not the role of the prosecutor to act as a surrogate judge and offer a dispassionate assessment of such a supposed range [29]. A statement of an appropriate range depends on assumptions which are likely to be unascertainable by the sentencing judge and therefore of little use [37].

Instead, the role of the prosecutor can be discerned from the correct procedure:

“[38] If a sentencing judge is properly informed about the parties' submissions about what facts should be found, the relevant sentencing principles and comparable sentences, the judge will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer its view about available range ... .”
[39] ... the role and duty of the prosecution remains the duty ... to draw to the attention of the judge what are submitted to be the facts that should be found, the relevant principles that should be applied and what has been done in other (more or less) comparable cases. It is neither the role nor the duty of the prosecution to proffer some statement of the specific result which counsel then appearing for the prosecution (or the Director of Public Prosecutions or the Office of Public Prosecutions) considers should be reached or a statement of the bounds within which that result should fall.”

Consistency in the application of relevant principles is needed, not numerical equivalence with sentences imposed in other cases [40] – [41], citing Hili v The Queen [2010] HCA 45, discussed here on 10 December 2010 (and note the criticism of the approach in R v AM, mentioned in that discussion, a case now available online so there is the link).

The majority reasoning in Barbero includes the proposition that a statement of the appropriate bounds for a sentence is a statement of opinion, not of law; this is not convincing, and it did not persuade Gageler J who agreed in the result of these appeals but dissented in the reasoning. Undoubtedly true, however, is the majority’s assertion that plea negotiations are irrelevant to sentencing: it is for the prosecutor to decide on the charge, for the defendant to decide how to plead, and for the judge to decide on the sentence [46] – [47].


In addition to stopping the rather unpleasant bidding-for-sentence that can occur at sentencing hearings, where the judge will seem to be either favouring the prosecutor or ducking the issue by taking a middle line between the competing offers, this case implicitly raises questions about the appropriateness of guideline judgments.

Friday, February 07, 2014

Using hypotheticals


Even if your own legislature hasn’t replicated s 68 of the Criminal Justice and Public Order Act 1994 [UK], an offence of aggravated trespass, it is worth reading the judgment in Richardson v DPP [2014] UKSC 8 (5 February 2014).

That is so because the reasoning illustrates how hypotheticals are used in judicial interpretation of criminal legislation. Correct identification of the focus of the provision [12], reflecting the legislative intent [13], highlights the central concept (here, “activity” and then whether it is “lawful activity”), and its limits are analysed by reference to hypothethicals (here, to exclude incidental or collateral or remote matters).

So, in this particular legislative and factual context, the activity was the selling of soap, and this was a lawful activity for the relevant shop, which would not have been made an unlawful activity if - all these are hypotheticals - an employee had been paid below the minimum wage [12], or if taxes had deliberately not been paid [19], or if the shop had been involved in money laundering in the way suggested by the appellant [18], or even if the selling activity had taken advantage of a war crime committed by another person (taking advantage of a crime is not the same as encouraging or assisting its commission [17]). Wrong labelling of goods sold could make the selling unlawful, but here there was no offence of selling goods wrongly labelled, and anyhow regulations required that there be proof that a purchaser would not have bought the goods if he had known of the error. These are all context-dependent and not general propositions.

Friday, January 31, 2014

Erroneous concessions

It would be manifestly unfair for a defendant to be held to a concession that was made because of a mistake of law: R v Mackle (Northern Ireland) [2014] UKSC 5 (29 January 2014) at [53].

The basis for a concession – is new evidence needed on appeal?

Where a defendant has conceded an element of liability (here that he “benefited” by avoiding a liability to pay duty and VAT on imported goods), but in law that concession was wrongly made (because he was not legally liable to make those payments), there is no need on appeal for evidence that the defendant was wrongly advised if the only evidence relied on by the prosecutor is insufficient to prove the obtaining of that, or any other, benefit [45].

Determining jurisdiction

Where a concession is made it may, in a particular legislative context, nevertheless be for the court to be satisfied that the point is established [51]. A concession about facts can provide evidence on which the court determines that it has jurisdiction to make an order, but a concession about a legal requirement is not determinative of jurisdiction.

The context here is the Proceeds of Crime Act 2002 [UK] (the POCA):

“[50] It is to be remembered that under POCA the court must itself decide whether the convicted person has benefited from his particular criminal conduct. The power to make a confiscation order arises only where the court has made that determination. A defendant's consent cannot confer jurisdiction to make a confiscation order. This is particularly so where the facts on which such a consent is based cannot as a matter of law support the conclusion that the defendant has benefited. On the other hand, if it is clear from the terms on which a defendant consents to a confiscation order, that he has accepted facts which would justify the making of an order, a judge, provided he is satisfied that there has been an unambiguous acceptance of those facts from which the defendant should not be permitted to resile, will be entitled to rely on the consent. This is so not because the defendant has consented to the order. It is because his acceptance of facts itself constitutes evidence on which the judge is entitled to rely. Provided the acceptance of the facts is unequivocal, and particularly where it is given after legal advice which proves to be sound, the judge need not mount a further investigation. It should be emphasised, however, that this is because the judge can in those circumstances himself be satisfied on the evidence that the basis for making a confiscation order has been made out.”

Liability and benefit

In proceedings for the confiscation of the benefits of crime, it must be shown what benefit the defendant obtained, that is, how much he gained from the offending. The requirements for liability are not the same as the requirements for establishing a benefit from criminal activity [66], [68]. Examples are the handling of prohibited goods, or participation in a conspiracy, which do not alone establish that a person has benefited from criminal activity [68].

This case applies R v May [2008] UKHL 28, R v Green [2008] UKHL 30, and Crown Prosecution Service v Jennings [2008] UKHL 29 (all 14 May 2008), discussed here on 16 May 2008.

Concessions and confessions

You could – just for the sake of remaining alert - compare the consequences of a mistake of law resulting in a concession, with the consequences of a mistake of law resulting in a confession, discussed here on 7 December 2013. Whereas the error-induced concession made by each appellant in Mackle was of no legal effect, the error-induced confession in the (currently) suppressed judgment of the NZCA did have evidential effect. The difference reflects the law/fact distinction. Also, there are two types of fairness at play: the fairness of the trial (a first requirement being that the law is accurately applied) and public policy fairness (the balancing of interests carried out in determining admissibility).

And, to be even more alert, you might wonder - following the train of thought in the first sentence of this comment - whether the law/fact distinction is sufficiently robust to allow one to say that it would not be manifestly unfair to hold the defendant to a confession that was only made because of a mistake of law.

Monday, January 20, 2014

Stop the discussion!

The dissent in R v MacDonald, 2014 SCC 3 (17 January 2014) is so cogently reasoned that one wonders why the majority didn’t refer to it or try to rebut it.


Although I call the judgment of Rothstein, Moldaver and Wagner JJ a dissent, it is really a concurrence in the result and a dissent on an important point of law.


This is one of the annoying things that sometimes crop up in multi-judgment cases: they can look half-baked, as if someone said, “Time’s up, stop writing!” before the majority judges had a chance to say why they disagreed with the minority.


I have always thought that R v Mann, 2004 SCC 52, [2004] 3 SCR 59 required reasonable grounds to suspect the existence of facts that made necessary an unwarranted search of a person who had not been arrested. See the heading to my comment on that case on 26 August 2004.


The minority in MacDonald thought that too, as had other Canadian courts in decisions mentioned in their judgment.


Importantly, the minority focus [68]-[69] on the phrase in Mann “...reasonable grounds to believe that his or her safety or that of others is at risk ...” and at [70] conclude:


“The language of Mann thus appears to stack a probability on top of a possibility — a chance upon a chance.  In other words, Mann says a safety search is justified if it is probable that something might happen, not that it is probable that something will happen.  As this Court only recently explained, the former is the language of “reasonable suspicion” (R. v. MacKenzie, 2013 SCC 50 (CanLII), 2013 SCC 50, at para. 74).  The latter is the language of “reasonable and probable grounds”.”


I mentioned MacKenzie here on 3 October 2013.


Further, the facts of MacDonald plainly show that the officer here did entertain a suspicion, not a belief [85], and that this was objectively a reasonable suspicion but it would not have amounted to a reasonable belief [83].


Judicial decisions are not always the best way to develop the law, as the minority note [90]:


“In the end, this case illustrates the danger of leaving police powers to be developed in a piecemeal fashion by the courts.  Today, our colleagues impose a standard requiring that an officer have reasonable grounds to believe an individual is armed and dangerous before a “safety search” is authorized, effectively overturning the search power recognized in Mann and a decade of subsequent jurisprudence in the process.”


When I noted Mann, nearly 10 years ago, our legislation required reasonable grounds to believe in the context of a warrantless search for an offensive weapon, but now this has changed to reasonable grounds to suspect: s 27 Search and Surveillance Act 2012. The Act, although in some respects controversial, is at least rational.