Recklessness as to whether a complainant is consenting to sexual activity is not the same as recklessness as to why the complainant isn't consenting. The latter is not an element of the offence, whereas the former is, for offences defined in statutory provisions the same as or similar to those considered in Gillard v The Queen [2014] HCA 16 (14 May 2014).
Broadly, the legislation defined sexual offences that are committed in the absence of consent, and specified occasions where consent is deemed not to have existed, for example where consent has been caused by abuse by the defendant of authority over the complainant.
Knowledge of the complainant's non-consent is sufficient for liability, as is recklessness as to whether the complainant consents.
In this context the High Court held that recklessness means indifference to the complainant's consent (applying Banditt v The Queen [2005] HCA 80).
Here, indifference to whether the complainant consented was not to be equated to indifference as to whether an exercise of authority over the complainant may have caused a consent which the statute deemed not to be consent. Of course the existence of such authority could be evidence of the defendant's indifference as to whether the complainant consented, but that would depend on the circumstances.
Here the prosecutor, with the judge's apparent approval, had invited the jury to conclude that the defendant was reckless as to consent because he was reckless as to the cause of any apparent consent. That was incorrect reasoning and a new trial on the relevant counts was ordered.
Indifference here is not simply an emotional attitude. It is a state of mind warranting criminal liability when it causes harm. It is not merely being rash or lacking caution (see my comment on Banditt here on 24 January 2006, referring to Lord Bingham's dictum in R v G). It is a determination to have one's way regardless of the other person's wishes.
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, May 14, 2014
Saturday, May 03, 2014
Paying for doing harm
For discussion of how to determine the amount of restitution (often in criminal law called reparation) a defendant should pay a victim whose online pornographic images he possessed, see Paroline v United States USSC No 12-8561, 23 April 2014.
The majority held that defendants should only be liable for the consequences of their own conduct, not the conduct of others. Courts must use discretion and sound judgment in fashioning restitution orders.
Roberts CJ, joined by Scalia and Thomas JJ, held that restitution could not be ordered here because the legislated standard for restitution left, in this case, the amount to be determined arbitrarily. Sotomayor J also dissented, holding that the legislation applied the tortious concept of liability of an individual defendant on a jointly and severable basis for the full amount of the victim's loss, and that accordingly an order for the full amount should have been made.
Friday, April 18, 2014
Article by Lord Phillips: Closed Material
As a special
favour to yourself – a reward for a virtuous life – read the article by Lord
Phillips on the way courts accommodate the need that some evidence be kept
secret: Nicholas Phillips, “Closed Material” London Review of Books, Vol 36, No 8, 17 April 2014 (currently
available here
but don’t rely on this link surviving in perpetuity).
As the editor
notes, “Nicholas Phillips retired in 2012 after three years as the first
president of the UK Supreme Court. ‘Closed Material’ is a version of last
year’s Blackstone Lecture, delivered at Pembroke College, Oxford.”
Many of the
cases he mentions have been noted here: Chalal,
Secretary of State for the Home
Department v AF [2009] UKHL 28, and Secretary
of State for the Home Department v MB [2008] 1 AC 440 here
on 11 June 2009, AF again briefly here
on 12 June 2009; A & Ors v. Secretary
of State for the Home Department [2004] UKHL 56 here
on 17 December 2004 (a case which Lord Phillips rates “as [the House of Lords’]
most impressive decision in my lifetime”) and which moved me to quote, with
rather spooky prescience, Montaigne; W
(Algeria) & Anor v Secretary of State for the Home Department [2012]
UKSC 8, here
on 20 March 2012; Al Rawi v The Security
Service [2011] UKSC 34, here
on 14 July 2011; Roberts v Parole Board
[2005] UKHL 45, here
on 11 July 2005.
The case law
led to the Justice
and Security Act 2013 [UK], and Lord Phillips describes its passage through
both Houses of Parliament from his perspective, focusing on disputes as to the
criteria which should apply to any decision to permit the use of the closed material
procedure (see now, ss 6(5) and 8(1)(c); it seems that efforts to impose more
restrictive conditions on the use of the closed material procedure were
unsuccessful). The enacted requirement is (broadly, and with qualifications) that
“it is in the interests of the fair and effective administration of justice in
the proceedings to make a declaration” that a closed material application may
be made, and an application must be granted if the court “considers that the
disclosure of the material would be damaging to the interests of national
security”.
Lord Phillips
concludes,
“There
is a danger that familiarity with the use of such a procedure will sedate those
who use it against the abhorrence that the need to resort to such means should
provoke. I would have been happier had the bill stated that it could be used
only as a last resort.”
Thursday, April 17, 2014
Fairness and contempt proceedings
Procedural
fairness in contempt proceedings is the topic of general interest in Dhooharika v The Director of Public
Prosecutions (Mauritius) [2014] UKPC 11 (16
April 2014). Of subsidiary interest is the analysis of the common law offence
of scandalising the court.
The
appellant, a newspaper editor, had published comments that were subsequently
held by the Supreme Court of Mauritius to have undermined public confidence in
the independence of the judiciary and the administration of justice.
This offence
of contempt requires that, as an actus
reus, the act or writing published must carry a real risk that public
confidence in the administration of justice will be undermined, and the mens rea is intentionally, or
subjectively recklessly, undermining public confidence in the administration of
justice [42], [48] – [49].
As to
fairness [50]:
“
... The Board understands that it may be necessary for the DPP in an
appropriate case to take summary action and that a classic form of trial may
not always be necessary, but the Board is of the clear view that the alleged
contemnor is always entitled to a fair trial and that, depending upon the
circumstances, he will almost certainly be entitled to call oral evidence on
his behalf, including his own evidence. In the instant case the Board has
formed the view that the appellant was, as a matter of practical fact, deprived
of his right to give evidence on his own behalf.”
Since the
trial was unfair the conviction could not stand [54], but independently of the
fairness difficulty, the published comments were not proved to have been made
in bad faith [57] (meaning that mens rea was not proved).
The conviction
was quashed, but the Judicial Committee observed that the procedure at
sentencing had been unfair [60]:
“[The
Board] ... would have allowed the appeal against sentence on the simple ground
that the appellant should have been afforded an opportunity to make submissions
in mitigation before a conclusion as to the correct sentence was reached. The
transcript shows that the court proceeded to sentence immediately after
delivering its judgment on the merits. There were a number of points which
could have been advanced on his behalf in support of the conclusion that a
custodial sentence was not necessary. The experience of this case shows that
the prosecuting authorities should be careful to remind the trial court of the
need to hear and consider submissions that go to possible mitigation of the
sentence before sentence is pronounced.”
The Board
surveys the history of contempt by scandalising the court [21] – [26], and
considers its continuing existence, particularly in Mauritius but also elsewhere
in the Commonwealth [29] – [41] (especially at [38] and Annex 1 to the judgment).
And (this is
me now, not the UKPC) aspects of the law of contempt remain uncertain. Perhaps
because flexibility in procedure may be essential if contempt has to be dealt
with urgently, statutory procedures leave some areas untouched. Are there
occasions when a charging document should be filed and the usual criminal procedures
utilised, even though dealing with the alleged contempt may fall only within
the court’s inherent power (see O’Brien v
R [2014] UKSC 23 (2 April 2014), noted here
on 4 April 2014)? How can a charging document be filed if there is no enactment
against which the contempt is alleged? If there is no charging document, how
should the court record its orders? If civil procedures are adopted to initiate
proceedings, to what extend do they colour subsequent steps?
Some points
can be stated with confidence because they have been established by case law. As
Finn, Mathias and Mansfield say in Criminal
Procedure in New Zealand (Thomson Reuters, Westlaw NZ online) at [1.3.3]:
“Both
common law and enacted contempt require the criminal standard of proof [footnote: Newman (t/a Mantella Publishing) v Modern Bookbinders Ltd [2000] 1
WLR 2559, [2000] 2 All ER 814 (CA)] and the alleged
contemnor has the rights of a person charged. [footnote: Siemer v Solicitor-General [2010] NZSC
54, [2010] 3 NZLR 767 at [53]–[56] per Blanchard, Wilson and Anderson JJ] Neither form of
contempt carries a right to elect jury trial and all offences of contempt are subject
to maximum penalties which are less than the level at which jury trial could be
elected. [footnote: Siemer v
Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [60], [62]–[65] and
[67] per Blanchard, Wilson and Anderson JJ, decided under the former law which
gave the right to elect jury trial whenever (with a few exceptions, such as
those which were mentioned in the Summary Offences Act 1981, s 43, with due
respect to Tutu v R [2012] NZCA 294
at [19]) the maximum penalty was imprisonment for more than three months. Now
all contempts are category 2 offences.] The judge must identify the act or acts
giving rise to the alleged contempt with sufficient particularity to ensure the
defendant understands what is alleged, and must give the defendant the
opportunity to take legal advice.”
Friday, April 04, 2014
Points to file away ...
To do an act “with” the defendant
Policy was an
important consideration in interpreting the phrase “to do an indecent act with
or upon” the defendant in s 2(1B)
of the Crimes Act 1961 [NZ], where the defendant, an adult, induced young
people to masturbate in his presence but without any physical contact or overt
participation by him: Y (SC40/2013) v R
[2014] NZSC 34 (3
April 2014). The policy point is apparent at [16].
Equally
interesting is the submission made for the appellant that the interpretation
imposing liability on the defendant would amount to retrospective
criminalisation, in view of decisions that appeared to suggest he would not be
liable. At [27] the Court noted that the earlier decisions did not deal with
situations where young people had performed the indecent acts, so this was not
retrospective criminalisation.
Civil but contemptuous
The
distinction between civil and criminal contempt of court was the basis for
holding that extradition on a criminal matter did not operate to bar
proceedings for an earlier civil contempt, in O’Brien v R [2014] UKSC 23 (2
April 2014). The distinction between civil and criminal contempt is mentioned
at [37] – [40], [42]. It is the nature of the defendant’s conduct that
determines the category of the contempt.
Friday, March 28, 2014
They say we can't, but we say we can! Fairness trumps logic in the Privy Council.
Every judge
dislikes constraints on jurisdiction that impede justice. One can be confident
about that.
In our legal
system – and perhaps in yours too – the greatest jurisdiction is given to the
senior trial court, the High Court, while the appeal courts, the Court of
Appeal and the Supreme Court, have jurisdiction that is limited by statute.
You might
think that it would be sensible to give the final appeal court the greatest
jurisdiction. But no, that is not the way that the legislature has decided to
distribute jurisdiction. Admittedly, an appeal court should not need original
jurisdiction, so that difference is understandable. But once an appeal court
has a case before it, it should be able to do anything that another court could
lawfully do.
Yesterday the
Privy Council riled against a jurisdictional constraint and turned its face, by
a majority, against a logically irrefutable limitation on its jurisdiction to
order commutation of a death sentence to life imprisonment: Ramdeen v The State (Trinidad and Tobago)
[2014] UKPC 7 (27
March 2014).
Justice
overrode logic. The appeal was against conviction, and after lengthy delays
during the course of judicial process [conviction 29 July 2008, appeals
dismissed in T&T 26 February 2010, leave to appeal to the Board granted 18
March 2013, this appeal heard 23 January 2014], it was dismissed by this Board.
Should the death sentence stand, notwithstanding that it had not been appealed?
The prosecutor indicated no enthusiasm for its imposition.
Lord Toulson,
with Lord Kerr [49], [58], [59] and, separately, Lord Neuberger [68], agreeing,
held that the Board was seised of the criminal proceedings as a whole once it
granted leave to appeal against conviction, and that as it was satisfied that
carrying out the sentence would be unlawful in view of the inhumanity caused by
the delay, it had the power to order commutation instead of requiring further
proceedings to be brought on that issue. Fairness and convenience both pointed
to this conclusion [69].
Saturday, March 22, 2014
Can technology make extradition for trial unnecessary?
If you need
clarification of disclosure obligations in the context of extradition
proceedings involving the “record of case” procedure, Dotcom v United States of America [2014] NZSC 24 (21 March 2014)
should be of assistance.
The decision
of the Court is in the joint judgment of McGrath and Blanchard JJ (delivered by
McGrath J), the concurring judgment of William Young J, and the partially
concurring judgment of Glazebrook J. See [153], [172], [177], [191], [194];
[213] – [217], [221] – [223], [228].
Where
legislation permits a slightly more relaxed approach to treaty obligations, so
that there is more room for fairness, the dissent of Elias CJ, and the partial
dissent of Glazebrook J deserve consideration.
The central
concept is the “duty of candour”, pursuant to which a requesting state must
disclose to the defendant any information that [152] “destroys or very seriously undermines the evidence” on which the
requesting state relies (adopting Lord Bingham in Knowles v Government of
the United States of America [2006] UKPC 38, [2007] 1 WLR 47 at [35]).
Enforcing this duty of candour, in the absence of judicial powers to
make orders, requires the court to rely on the candour of a party that may well
not want to be candid. Of course the judges didn’t put it like that [177]:
“We accept that there will be exceptional cases
where an extradition judge might want further information to be sought from the
requesting state. Such concerns will usually be resolved through dialogue
between the Court and counsel. In cases where that does not meet the perceived
need, we also accept the view expressed in [Norris v Government of the
United States [2008] UKHL 16, [2008] AC 920 at [107]] by Lord Bingham
that where the relevant extradition treaty provides for
government-to-government requests to be made for additional information or
evidence, as art 12 of the Treaty does, that formal procedure may be availed
of. The Court should inform counsel for the requesting party that the Court wishes
to receive further information from the requesting state. Counsel must then bring
the matter to the attention of the appropriate New Zealand Ministers so that a decision
on whether to request the further information through diplomatic channels is
made and given due effect.”
The weakness in this legislated scheme is obvious. The “state” seeking
extradition is really a group of people whose jobs are to be prosecutors. They
have allegiance to their country. They believe they have right on their side.
So-called “states” do not treat each other with candour: if they did there
would be a lot of unemployed spies.
Is the meaning of a “fair” extradition hearing different from the
meaning of a “fair” trial? Fairness in extradition hearings requires impartial
determination of the facts – in the sense of giving the evidence appropriate
weight and determining issues without bias – in deciding whether a prima facie
case has been established by the requesting state. There must be evidence,
summarised in the record of case (where that procedure applies), on every
element that the prosecutor would have to prove at trial. None of that evidence
can be so unreliable that no fact-finder would accept it. The defendant must be
able to challenge the reliability of the evidence, and that may require access
to information that only the prosecutor may have. The prosecutor may be unaware
of weaknesses in the case for extradition, or may not appreciate the magnitude
of a possible weakness.
There is a point on which one might have reservations about the reasoning at [161] of the joint judgment (and concurred by William Young J at [228]). Disclosure, the judges seem to be saying, is not required when the defendant has independent knowledge of the facts. But the difficulty with this is that disclosure enables the defendant to know how the prosecutor intends to prove the facts needed to establish a prima facie case. It doesn't matter what the defendant knows, it's what the prosecutor knows, and how that knowledge was obtained, and whether it is admissible as evidence, that the defendant needs disclosure of, to challenge the assertion that there is a prima facie case.
It seems obvious that the statutory scheme for extradition where the record of case procedure is used does not meet the requirements of a fair hearing, because of constraints on disclosure of the prosecutor's case and the requirement that courts accept - although on a supposedly "rebuttable" basis - the candour of the prosecutor. You could hardly get a clearer example of the legislature requiring the court to take a biased stance. Yet the majority judges don't accept this. In considering whether the scheme complies with the requirements of natural justice [193], [229], [239] they - in effect - explain why it doesn't then they say that it does.
If there are questions about the power of the legislature to require courts of justice to act unjustly, resort will be had to the inherent powers of the court to act in the interests of justice. Elias CJ and Glazebrook J seek to advance this principle. The majority refer [181] to the court's ability to refuse extradition after a "meaningful judicial assessment of whether the evidence is sufficient to meet the threshold of a prima facie case", and the word "meaningful" may, one may speculate, encompass cases where there is a judicial sense that unacceptable unfairness has occurred.
Lord Devlin said something sensible in Connelly v DPP [1964] AC 1254, 1354, which I quoted in an article that, for reasons that now nearly escape me, I called "Criminal Equity" [2000] New Zealand Law Journal 427, a copy of which is available here.
There is a point on which one might have reservations about the reasoning at [161] of the joint judgment (and concurred by William Young J at [228]). Disclosure, the judges seem to be saying, is not required when the defendant has independent knowledge of the facts. But the difficulty with this is that disclosure enables the defendant to know how the prosecutor intends to prove the facts needed to establish a prima facie case. It doesn't matter what the defendant knows, it's what the prosecutor knows, and how that knowledge was obtained, and whether it is admissible as evidence, that the defendant needs disclosure of, to challenge the assertion that there is a prima facie case.
It seems obvious that the statutory scheme for extradition where the record of case procedure is used does not meet the requirements of a fair hearing, because of constraints on disclosure of the prosecutor's case and the requirement that courts accept - although on a supposedly "rebuttable" basis - the candour of the prosecutor. You could hardly get a clearer example of the legislature requiring the court to take a biased stance. Yet the majority judges don't accept this. In considering whether the scheme complies with the requirements of natural justice [193], [229], [239] they - in effect - explain why it doesn't then they say that it does.
If there are questions about the power of the legislature to require courts of justice to act unjustly, resort will be had to the inherent powers of the court to act in the interests of justice. Elias CJ and Glazebrook J seek to advance this principle. The majority refer [181] to the court's ability to refuse extradition after a "meaningful judicial assessment of whether the evidence is sufficient to meet the threshold of a prima facie case", and the word "meaningful" may, one may speculate, encompass cases where there is a judicial sense that unacceptable unfairness has occurred.
Lord Devlin said something sensible in Connelly v DPP [1964] AC 1254, 1354, which I quoted in an article that, for reasons that now nearly escape me, I called "Criminal Equity" [2000] New Zealand Law Journal 427, a copy of which is available here.
Saturday, March 15, 2014
Have you tried marine biology?
I’m told that
there are some people who need to use little untruths to advance their chance
of romantic success.
The most
famous example I can think of is George Kostanza in Seinfeld, 5th
season, episode 14: “The Marine Biologist”. Being thought of as a marine
biologist did indeed enhance George’s prospects, but it also led to a call to action of
another sort.
In R v Hutchinson, 2014
SCC 19 (7 March 2014) Mr Hutchinson’s untruth was of a more mundane kind: it
came down to saying, “This is a really good condom.”
In fact he
had put pin pricks in it, hoping to make his partner pregnant but knowing she
did not want that. The result was she did become pregnant.
Had the
complainant consented to the sexual activity?
The Court was
unanimous in dismissing the appeal, but for differing reasons. The majority
said yes, she had consented but her consent was vitiated by the dishonesty.
Consent had been given to the sexual activity in question, and consent does not
have to extend to the conditions or qualities of the act, such as birth control
measures. However there was dishonesty which resulted in serious bodily harm
[67] – [70], and this constituted the fraud that vitiated consent.
The minority
said no, there was no consent ab initio, because use of the condom was part of
the sexual activity and the complainant had the right to determine how she was
touched, how the sexual activity she engaged in was carried out. It was not
necessary to look for a vitiating factor such as fraud, as there was no consent
from the beginning.
The majority
found some difficulties with the minority reasoning [45] – [53]. How are the
boundaries of the sexual activity, the nature and quality of the act, defined?
Sunday, March 09, 2014
My goodness! Is that a gun?
For what would be accepted in the common law world as a conventional analysis of secondary liability insofar as it applied to the facts of Rosemond v United States, USSC No 12-895, 5 March 2014, see the judgment of the Court delivered by Kagan J (with significant agreement by Alito J, joined by Thomas J, in dissent).
It is the point over which the dissent occurred that is of interest to you and me.
The relevant offence was double-barrelled: committing a drug dealing offence, while in possession of a firearm. Does the secondary party, who assists or encourages the offence, have to help with both the dealing and the firearm possession? No disagreement here: it is only necessary that the defendant provides assistance or encouragement with some part of the offence. Does the secondary party have to know of all the circumstances – both the dealing and the firearm? Again, no disagreement: the defendant must know of all the circumstances of the offending.
But what if the defendant, present during the commission of the drug dealing, only becomes aware of the firearm after it is too late to withdraw from participation? The defendant may not be able realistically to say, “Everyone stop! No guns!” because that might risk the safety of other people or even of the defendant himself.
Here the dissenters say this is like the affirmative defences of duress or necessity: the defendant is saying he can’t withdraw because of forces beyond his control. He should, according to the relevant law (not universally applicable), have to prove those defences. They do not negate an element of the offence.
The majority disagreed with that (slip op, p 10 footnote 10). The question is one of fact: what did the defendant intend to assist or encourage? Evidence that he only learn’t of the firearm after the drug deal had commenced would be relevant to whether he intended to assist or encourage the firearm possession. His continuation with his participation could be consistent with him encouraging the gun element, or not: that is a matter the fact-finder would have to determine (see slip op, p 13, footnote 9). The prosecutor must, when such issues are raised, prove the necessary intent without a burden of proof passing to the defendant.
Defences like duress or necessity could, on relevant facts and subject to local law, be available, and again, subject to local law, may only require the defendant to raise them as live issues by pointing to some supporting evidence.
Normally, aside from in offences that include a proscribed purpose, the law does not concern itself with the motive behind an intention; Robin Hood was a thief. Where an intention existed because the defendant faced circumstances that it would be beyond normal human fortitude to endure, a defence of necessity might be available. But not necessarily. This is where policy limits on justifications and excuses operate. In Rosemond the Supreme Court majority lowered the moral hurdle for defendants by allowing a motive for an intention to limit responsibility even though the stricter requirements of an affirmative defence would not be satisfied.
I doubt that this would be a universally acceptable recognition of human frailty.
It is the point over which the dissent occurred that is of interest to you and me.
The relevant offence was double-barrelled: committing a drug dealing offence, while in possession of a firearm. Does the secondary party, who assists or encourages the offence, have to help with both the dealing and the firearm possession? No disagreement here: it is only necessary that the defendant provides assistance or encouragement with some part of the offence. Does the secondary party have to know of all the circumstances – both the dealing and the firearm? Again, no disagreement: the defendant must know of all the circumstances of the offending.
But what if the defendant, present during the commission of the drug dealing, only becomes aware of the firearm after it is too late to withdraw from participation? The defendant may not be able realistically to say, “Everyone stop! No guns!” because that might risk the safety of other people or even of the defendant himself.
Here the dissenters say this is like the affirmative defences of duress or necessity: the defendant is saying he can’t withdraw because of forces beyond his control. He should, according to the relevant law (not universally applicable), have to prove those defences. They do not negate an element of the offence.
The majority disagreed with that (slip op, p 10 footnote 10). The question is one of fact: what did the defendant intend to assist or encourage? Evidence that he only learn’t of the firearm after the drug deal had commenced would be relevant to whether he intended to assist or encourage the firearm possession. His continuation with his participation could be consistent with him encouraging the gun element, or not: that is a matter the fact-finder would have to determine (see slip op, p 13, footnote 9). The prosecutor must, when such issues are raised, prove the necessary intent without a burden of proof passing to the defendant.
Defences like duress or necessity could, on relevant facts and subject to local law, be available, and again, subject to local law, may only require the defendant to raise them as live issues by pointing to some supporting evidence.
Normally, aside from in offences that include a proscribed purpose, the law does not concern itself with the motive behind an intention; Robin Hood was a thief. Where an intention existed because the defendant faced circumstances that it would be beyond normal human fortitude to endure, a defence of necessity might be available. But not necessarily. This is where policy limits on justifications and excuses operate. In Rosemond the Supreme Court majority lowered the moral hurdle for defendants by allowing a motive for an intention to limit responsibility even though the stricter requirements of an affirmative defence would not be satisfied.
I doubt that this would be a universally acceptable recognition of human frailty.
Thursday, March 06, 2014
Hidden defences and concealed charges
Defence
lawyers are familiar with the difficulty of deciding how to make the best of
one defence while not losing a fall-back defence in the event that the first is
unsuccessful. You can’t credibly build a case that “My client didn’t do it, but
if he did he was forced to, but if he wasn’t he did it in self defence, but if
he didn’t it was an accident.” Plainly the defence case is that the defendant
didn’t do it. The judge, on the other hand, may have to consider evidence that
if the defendant did do it, he acted in self defence, or that some other
defence appears on the evidence to require to be considered.
“Discharge
of the trial judge's role in ensuring fairness to the accused requires that the
jury receives instruction on any defence or partial defence, provided there is
material raising it, regardless of the tactical decisions of counsel [Footnote: Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 at 117-118 per
Barwick CJ.]. Among other things, this recognises
the forensic difficulty of relying on inconsistent defences. The tactical
decision not to rely on a defence or partial defence, whether objectively sound
or otherwise, does not relieve the trial judge of the obligation to instruct
the jury on how on a view of the facts a defence or partial defence arises.”
James v The Queen [2014] HCA 6 (5 March 2014) joint
judgment at [31], and see Gageler J at [69].
Another
aspect of the judge’s duty to ensure a fair trial for the defendant comes into
play when a separate issue arises: should the judge leave open the opportunity
for a conviction on another offence that may, on the evidence adduced at trial,
have been committed? That is, by way of an alternative verdict. For example, a
defendant may argue on an appeal against conviction that the trial court did
not have the opportunity to consider a lesser offence in respect of which it
may have preferred to find the defendant guilty.
In James the jury had found the defendant
guilty of intentionally causing serious injury. There had been an alternative
count of recklessly causing serious injury. On appeal he argued that the jury
should have had the opportunity to consider the lesser offence of intentionally
causing injury (that is, ordinary old injury). The defence case at trial had
been that the defendant had caused the injury accidentally.
A tactical
decision had been made at trial not to seek the alternative verdict of intentionally
causing injury.
The defendant
was understandably not, at trial, saying “It was an accident, but if it wasn’t
I didn’t appreciate the risk of injury, but if I did, I didn’t mean to cause
injury, but if I did, I didn’t mean it to be serious injury.” He wanted the
jury to reject the serious allegation and to acquit him outright, without
bothering itself over whether he may have committed the lesser offence.
On the facts
of this case, where a car had allegedly been used to cause the injury, the
majority, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ, held that there
had been no unfairness because it would be artificially subtle [47] to expect
the jury to distinguish between an intent to cause serious, as opposed to
ordinary, injury, and that the defendant could not have been prejudiced by the
omission an alternative verdict [48]. Gageler J dissented on this issue. He
regarded the distinctions between the degrees of injury as something that the
jury could have considered when determining the defendant’s state of mind [88].
Since the defendant could have been convicted of the lesser offence, he
concluded that there had been a substantial miscarriage of justice in not
leaving it for the jury’s decision [89].
The judicial
approach to alternative verdicts is summarised by the majority [37]:
“
... At a trial at which neither party seeks to rely on an included offence, the
trial judge may rightly assess that proof of the accused's guilt of that
offence is not a real issue. In such an event, it would be contrary to basic
principle for the trial judge to embark on instruction respecting proof of guilt
of the included offence ... .”
But Gageler J
considered [71] that the relevant statutory environment required the judge to
direct the jury on alternative offences
“
... whenever it was open on the evidence for the jury to find the accused not
guilty of the offence charged but guilty of the alternative offence, unless the
giving of the direction would be unfair to the accused in the particular
circumstances of the case.”
He observed
that this was consistent with the common law as stated by Lord Bingham in R v Coutts, discussed here
on 21 July 2006.
The majority,
however, put the focus on the real issues in the trial, assessed in the light
of the prosecutorial decision as to what charges to prefer:
“[33]
... Where the prosecution does not seek the jury's verdict for an offence not
charged, the circumstance that in law the evidence may support conviction for a
lesser offence does not without more make guilt of that lesser offence an issue
in the trial. Fairness in such a case may favour that the accused's chances of
outright acquittal on the issues joined not be jeopardised by the trial judge's
decision to leave an alternative verdict.”
And
“[37]
... The view that it is the duty of the trial judge to invite the jury to
determine the accused's guilt of an included offence at a trial at which the
prosecution has elected not to do so is incompatible with the separation of [the
judicial and prosecutorial] functions. It is not the function of the trial
judge to prevent the acquittal of the accused should the prosecution fail to
prove guilt of the offence, or offences, upon which it seeks the jury's
verdict. ...”
That is to
say, judges shouldn’t be surrogate prosecutors. It is for the prosecutor to say
at trial, and at a stage of the trial when it is fair to do so, whether
conviction is sought for any included offence.
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