There are times when judges fail to obey the law, in the conduct of trials, but that failure doesn't matter. For example, in Stout v R (British Virgin Islands) [2014] UKPC 14 (13 May 2014) the judge had not properly warned the jury about the dangers of reliance on hearsay evidence, yet, in the context of the trial, this did not affect the verdict and did not result in unfairness, and the Board upheld the conviction.
This does not mean that trial judges can ignore the law when they feel sure that the defendant is guilty and will be found guilty. The judicial oath requires of judges that they will administer and apply the law. The formal phrasing of the oath varies but typically contains the essential phrase "I will do right to all manner of people after the laws and usages of ... without fear or favour, affection or ill will".
So a judge who has failed to follow the law, but whose trial has survived an appeal, cannot simply relax in the coffee room and boast about getting away with it. The judge should feel a sense of shame and resolve to learn more about the law. And I don't know any judge who wouldn't.
The trial judge in Stout will learn that it is always necessary to explain to the jury that the absence of an opportunity to test the accuracy of the maker of a hearsay statement can be a significant disadvantage for a defendant [17]:
"Hearsay evidence is indeed admissible, providing the necessary statutory conditions are met, and this evidence was admitted without objection. But it always suffers from the disadvantage that the jury cannot see the source of it and cannot see his accuracy tested. Of course, how far this disadvantage may affect the reliability of the evidence varies considerably from case to case, but it is important that the jury be confronted with the need to think about it."
And here there were two possible sources of error that the jury needed to be made aware of: the possibility that the original maker of the statement was wrong, and the possibility that the reporter of the statement was wrong.
"[17] ... The explanation or warning required is not of great complexity. In a case where the jury has seen other witnesses challenged and tested in their evidence it is usually simple to remind them of the process, to observe that a witness does not always leave the witness box with his evidence as secure as when he started and to invite them to remember that the hearsay evidence cannot be subjected to the same kind of examination."
There can be very good reasons why counsel in a trial may not object to the admission of hearsay evidence, as no doubt there were here - for example by using it to bring out inconsistencies in the prosecutor's case - but that does not absolve the judge of the responsibility to instruct the jury on the dangers and disadvantages of evidence of that kind.
Given that, as the Board concluded, the trial result was not affected by the judge's error, why was the trial fair if it was not conducted according to law? The answer is that none of the requirements of trial fairness were absent: the law (the elements of the offence of murder) was accurately applied to facts that were determined impartially. There was nothing in the trial that caused the jury to give inappropriate weight to any item of evidence to the extent that the jury could be called partial. Even if the jury had, as a result of not being adequately instructed on the dangers of hearsay evidence, given more weight than it otherwise would have to what the victim had reportedly said, there was sufficient other evidence in the case to make that error immaterial, in the sense that the same weight would have been given to the victim's statements in the light of other evidence.
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.
Sunday, May 18, 2014
Saturday, May 17, 2014
Assessing reasonableness of suspicion
When can a tip-off provide the police with reasonable grounds to suspect that an offence has been committed?
If the informant is not known to the police, what circumstances can provide sufficient assurance of reliability to establish reasonable grounds for this suspicion?
General rules providing for criteria of reliability may be difficult to apply uniformly in actual cases, and judges may differ in the same case, as is illustrated by the 5-4 split in Navarette v California, USSC No 12-9490, 22April 2014.
Thomas J and Scalia J differed here, the former giving the opinion of the Court and the latter the dissent. The central issue here was the grounds upon which the police stopped a vehicle on a road, which must be borne in mind in jurisdictions where the police can stop without grounds any vehicle for a routine licensing and roadworthiness check.
But more generally, Navarette illustrates how descriptions of requirements for reliability (was the informant an eyewitness, had there been time for fabrication of the report, would a false report carry risks that the informant would be called to account, did the reported facts indicate criminal activity, did subsequent police activity dispel the inference of reasonable suspicion?) can undermine the protection against unreasonable search when the facts are assessed.
Scalia J cogently reasoned that the police activity - following a suspected drunken driver for five minutes without observing anything irregular about the driving - dispelled suspicion. On his evaluation of the evidence there had been time for fabrication - "Plenty of time to dissemble or embellish" - and there was no evidence that the informant knew of any difficulties there may have been in locating her, and there could have been many innocent explanations for the driving behaviour she reported. Further, the driving was observed by the police to have been irreproachable and it gave rise to no suspicion of any criminal activity. A drunk driver cannot (necessarily) decide to drive carefully when he sees that he is under police observation.
The case focuses on the lawfulness of the stopping of the vehicle. A subsequent smelling of marijuana led to search and discovery of 30 pounds of that drug in the vehicle. The case is not concerned with the question of whether the evidence would be admissible if the search had been illegal. Here there was no police misconduct, but on the other hand the police should be deterred from relying on inadequate grounds for a search. Problematically, the distinction between belief and suspicion is difficult to apply in practice, and an erroneous belief that a suspicion is reasonably based can be a slight error compared to the public interest in detecting serious crime. Still, expansion of what is considered to be reasonable grounds for suspicion makes it less necessary to consider the admissibility consequences of police actions in good faith (Illinois v. Rodriguez, 497 U.S. 177 (1990), cited in Findlaw, Annotation 6 - Fourth Amendment, fn 224).
Wednesday, May 14, 2014
Dangerous indifference
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.
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.
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.
Friday, February 28, 2014
The power to consent to search: a question of law or of fact?
One
occasionally wonders how those who wrote the Fourth Amendment to the “Constitution for the United States of
America” would have decided issues that currently come before the Supreme
Court relating to the right of the people to be secure against unreasonable
searches and seizures.
Minute
examination by the Supreme Court of the implications of the facts of individual
cases has reduced the extent to which people in the United States are protected
by the Fourth Amendment.
This week the
reduction in protection continued: Fernandez
v California USSC No
12-7822, 25 February 2014. The issue was whether a co-tenant could give the
police consent to the search of the residence she shared with the defendant.
The defendant had been lawfully arrested and removed, but he had maintained his
objection to the search. The police could have obtained a warrant but did not,
and in giving consent to the search when the police returned to the residence
about an hour after removing the defendant, she may have felt pressured (Ginsburg
J dissenting, joined by Sotomayor and Kagan JJ, p 9 slip op, footnote 5; but compare
footnote 2 of the opinion of the Court delivered by Alito J). The majority held
that her oral and signed consent gave the police authority to search the premises,
and evidence linking the defendant to a robbery was admissible.
The legal
question was whether the co-tenant could give “effective” consent to the search.
This – the “could” part - is a question of law. Hence the subtle jurisprudence
discussing whether particular facts give rise to an occupier’s power to give
consent despite the objection or absence of another occupier.
Would it be
simpler – in those jurisdictions where it is still possible to do so - to treat
the existence of a power to give consent as a question of fact?
For example,
s 94(c)
of the Search and Surveillance Act 2012 [NZ] reads:
“A search by
consent is unlawful if— ... (c) the search is undertaken in reliance on a
consent given by a person who does not have authority to give that consent.”
Currently it
is regarded as “arguable” that a tenant is unable to consent to the search of
the part of the premises (such as a bedroom) solely occupied by another tenant:
Adams on Criminal Law, at [SS94.02].
I would go further and say that the argument would be about the facts only:
whether the facts show that one co-tenant had given another the power to give
consent to the search of that part of the premises.
By what can only be a happy coincidence, the requirement for "authority" in s 94(c) resonates with a remark by Roberts CJ in Georgia v Randolph, 547 US 103 (2006) (dissenting, joined by Scalia J): "A warrantless search is reasonable if police obtain the voluntary consent of a person authorized to give it." But the court's jurisprudence illustrates how this simple idea has been clogged with legal rules. For example Chief Justice Roberts, in the passage immediately preceding the sentence just quoted, summarised the precedents as including the proposition of law that " ... someone who shares a place with another cannot interpose an objection when that person decides to grant access to the police ...". I would argue that this should not be a proposition of law, but rather it should be a question of fact in each case whether a relevant occupier (the defendant) has given authority to another occupier to give consent to the search that actually occurred.
In Fernandez there was no such consent and the absence of the defendant, who was in police custody, did not result in him constructively giving his authority to consent to the co-tenant, and obviously, as there was then no urgency, the police should have obtained a warrant; the search was illegal and the admissibility of the seized evidence should be determined taking that illegality into account.
By what can only be a happy coincidence, the requirement for "authority" in s 94(c) resonates with a remark by Roberts CJ in Georgia v Randolph, 547 US 103 (2006) (dissenting, joined by Scalia J): "A warrantless search is reasonable if police obtain the voluntary consent of a person authorized to give it." But the court's jurisprudence illustrates how this simple idea has been clogged with legal rules. For example Chief Justice Roberts, in the passage immediately preceding the sentence just quoted, summarised the precedents as including the proposition of law that " ... someone who shares a place with another cannot interpose an objection when that person decides to grant access to the police ...". I would argue that this should not be a proposition of law, but rather it should be a question of fact in each case whether a relevant occupier (the defendant) has given authority to another occupier to give consent to the search that actually occurred.
In Fernandez there was no such consent and the absence of the defendant, who was in police custody, did not result in him constructively giving his authority to consent to the co-tenant, and obviously, as there was then no urgency, the police should have obtained a warrant; the search was illegal and the admissibility of the seized evidence should be determined taking that illegality into account.
Tuesday, February 25, 2014
Evaluating opinions
R v Sekhon, 2014
SCC 15 (20 February 2014) is interesting on when an expert’s opinion has no
probative value, and on the appellate court’s approach to assessing the
inevitability of a guilty verdict.
An expert
witness said that in his extensive experience drug couriers always know that
they are in possession of a drug. They are not “blind” couriers. The material
issue was the defendant’s knowledge of the presence of a drug in the vehicle he
drove at the Canadian border.
The expert’s
evidence here cannot readily be reduced to the necessary logical proposition
that constitutes the likelihood ratio that expresses probative value.
To determine
probative value it is necessary to know whether the evidence is more consistent
with the defendant’s guilt than with the defendant’s innocence.
At first
blush it seems that this evidence is indeed of that kind: it carries the
implication that the defendant must have known of the presence of the drug. But
that, without more, is fallacious, for it is simply saying that other
defendants in other cases have known of the presence of the drug, so this
defendant must have known too.
To determine
whether the evidence is more consistent with the defendant’s guilt than with
the defendant’s innocence, one asks how likely it is to have been obtained on
the assumption that the defendant is guilty, compared to how likely it is to
have been obtained on the assumption that the defendant is innocent.
Here the
expert’s opinion doesn’t fit into that formula. If the opinion comes down to
saying “the defendant knew the drug was present”, it is conclusory not
probative.
This sort of
analysis is important, for at trial there was no objection to the evidence
being given. Not only did counsel not object to it, but at this judge-alone
trial the judge accepted it, and the British Columbia Court of Appeal majority
(Newbury JA dissenting) also thought it was admissible. But all the Supreme
Court judges in Sekhon held that the
expert’s opinion was not admissible [49] – [50], [61], [75] – [76], [79] – [80].
The other interesting aspect of Sekhon is the split in the Supreme Court over whether this was a case in which the conviction could be upheld by application of the proviso. This sort of split arises from different evaluations of the strength of the prosecution case as it would have been if the inadmissible evidence hadn’t been given. Here the trial judge gave a reasoned decision, so it should have been relatively easy to evaluate the strength of the case without the impugned evidence. Jury trial convictions are, broadly speaking, more easily overturned when inadmissible evidence was led at trial, because the appellate court cannot examine the reasoning of the jury and there are more live possibilities for how the reasoning may have proceeded in the absence of the error. Differences in appellate perceptions of the significance of such errors at trial point to a weakness in the criteria for deciding conviction appeals.
The other interesting aspect of Sekhon is the split in the Supreme Court over whether this was a case in which the conviction could be upheld by application of the proviso. This sort of split arises from different evaluations of the strength of the prosecution case as it would have been if the inadmissible evidence hadn’t been given. Here the trial judge gave a reasoned decision, so it should have been relatively easy to evaluate the strength of the case without the impugned evidence. Jury trial convictions are, broadly speaking, more easily overturned when inadmissible evidence was led at trial, because the appellate court cannot examine the reasoning of the jury and there are more live possibilities for how the reasoning may have proceeded in the absence of the error. Differences in appellate perceptions of the significance of such errors at trial point to a weakness in the criteria for deciding conviction appeals.
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.
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.
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.”
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.”
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.
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.
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?
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