Interesting decisions pending

As you know by now, much of law involves waiting. Waiting for decisions of appellate courts gives law much of its suspense. Perhaps. Here are some interesting points awaiting determination:

Grounds for search

When the adequacy of grounds for a search are assessed, should illegally or improperly obtained information be disregarded? An appeal from R v Alsford [2015] NZCA 628 is on the way. [Update: Oops, this escaped my attention; it was decided on 29 March that information that has previously been ruled inadmissible may usually (except in extraordinary circumstances involving torture or violence) be used in an application for a warrant, but when admissibility of evidence consequently discovered is determined the illegality or impropriety will be relevant to the balancing exercise: R v Alsford [2017] NZSC 42. I expect the effect of this will be to reduce the exclusionary effect of s 30 of the Evidence Act 2006 by permitting the admission of improperly obtained evidence of less serious offences than previously.]

Mental elements of unlawful drug possession and related offences

Does the mental element that makes possession of a drug unlawful include recklessness? Related to this, is there a good-faith defence, and if so, when? I’m not sure if there are suppression orders still in effect in this one, but let’s pretend there are: see [suppressed?] [2016] NZSC 87 (leave granted). [Update: on 19 June 2017 the Supreme Court decided that recklessness is sufficient mens rea for drug offences if no more specific state of mind is specified in legislation. There is therefore no need for a separate good-faith defence. Suppression of some details continues so I just mention the citation: [2017] NZSC 89.]

Privacy balancing

When, if ever, is a defendant’s right to privacy diminished by another person’s privacy right that has been breached by the defendant? If breach of another person’s privacy does reduce the defendant’s own privacy right for the purposes of the admissibility balancing exercise, would it be double-counting to also take the breach of the other person’s privacy as increasing the public interest in admitting the evidence? More abstractly, can policy justify compromising the logic of the balancing exercise, and if so, when? See [name suppressed] (CA597/2016) v R [2017] NZCA 118, granting leave for a second pre-trial appeal.
[Update: On 17 November 2017 the Court released its judgment in this appeal, [2017] NZCA 522 (publication suppression orders still in force), holding that breach by the defendant of a third person's privacy is relevant to the seriousness of the offending and weighs in favour of admission of the evidence, and is separate from and independent of the seriousness of the breach of the defendant's privacy right, which weighs in favour of exclusion of the improperly obtained evidence. The Court cited favourably dicta in R v Patrick 2009 SCC 17, [2009] 1 SCR 579 at [32] per Binnie J for the majority.]

Is an electronic file an object?

The “Dotcom” case continues its slow climb up the judicial hierarchy, but it seems to me that the central point is easy to state (and should be easy to decide): is an electronic file an object in which there can be a copyright? An appeal, or two appeals, from Ortmann v United States of America [2017] NZHC 189 (see [169]-[192]) could settle that.
[Update: on 5 July 2018 the Court of Appeal held that all the grounds for extradition were made out, and that an electronic file is an object in which there can be a copyright: Ortmann v United States of America [2018] NZCA 233.]

The Arnold Solution

I ask, just for fun, whether you have read Thurman Arnold’s “The Role of Substantive Law and Procedure in the Legal Process”. It is available courtesy of the Yale Law School’s Faculty Scholarship Series, here, and will also be found in 45 Harvard Law Review 617 (February, 1932). Yes, 1932.

He uses “procedure” in a special sense, rather than its classification as found in the law school curriculum (p 647, fn 44). Also used in a special sense is “substantive law” which is the body of legal precedent that has been established and which has been accorded reverence because of its attributes and those recognised in the legal system, and by society, attaching to courts. Substantive law concerns principles, whereas procedure is entirely practical. Procedure is not tradition-bound but changes in the light of practical requirements. Whereas substantive law may be restated, procedure can be reformed. The difference is only in attitude, “any doctrine may be treated as procedure and the problem discussed, or as substantive law and the principle stated” (p 643).

Given these special definitions of substantive law and procedure it is plain that Arnold is not talking about what we would call substantive law and procedure. So, what is he saying?

His fear is that the multiplication of precedents through increased reporting of cases will reduce the law to confusion and chaos. The way to avoid this, he says, is to reduce access to appeals. The English did this, he further says, in criminal law by requiring that a miscarriage of justice had to be “substantial” before an appeal against conviction would be allowed. This was a barrier which discouraged appeals and minimised disruption to the established body of precedent. (p 638)

“It is this ability of the English to keep an ideal from too close contact with reality which explains the prestige which they are able to throw around their institutions.” (p 640)

He quotes, at p 639 fn 29, the then hot-off-the-press Goodhart, Essays in Jurisprudence and the Common Law (1931) at 57:

“Perhaps the reason why the English Lawyer is not dissatisfied with the present system is that the 'myriad' precedents do not exist. The English cases to 1865 are reprinted in the English Reports in about 175 volumes. The semi-official Law Reports from 1865 to the present date occupy about 450 volumes. Thus 625 volumes make up a complete working library."

Wonderful times indeed, not that I personally remember them. But how different is it today?

The point is not the number of volumes in which the law can be printed, but the ease with which the law can be ascertained. It hardly matters how many millions of precedents there are, if the relevant ones can be obtained from an electronic database almost instantly. Present problems are around applying acquired legal skills to honing down electronic search results to bring into focus the cases that are truly relevant, and keeping those to a minimum. A concentration on cases that have been cited and discussed in recent decisions should assist this focusing process. So instead of having 625 volumes on the shelves, a practitioner need only have a few leading textbooks and a subscription to an appropriate electronic database.

But Arnold, if he were here today, might still be concerned about what is happening, behind the electronics, to the law itself. Is it becoming uncertain because of confusion arising from what is, in effect, the use of legal principles as if they were rules. Multiplication of exceptions and additions of refinements could be moving the fundamentals in a way which makes them less venerable and worthy of the reverence that has, he would say, attached to the law and the courts. Would it be practical to counter this by restricting arguments about the application of precedent to trial courts, and only allow cases that require discussion of principles to go to the appeal courts?

This points to the real question, whether there is something that needs to be countered. Has the digital revolution saved the law from the Arnold solution? 

Proving propensity

Propensity evidence is evidence about the defendant’s conduct, not directly connected to the presently alleged offending, but which shows a propensity to act in a way that is relevant to an issue now before the court. To what, if any, standard must propensity be proved before it can be used in the process of determining the facts on the present allegation?

The United Kingdom Supreme Court has held that propensity must be proved beyond reasonable doubt before it can be taken into account in fact-finding: R v Mitchell (Northern Ireland) [2016] UKSC 55 (19 October 2016).

The Court noted that the common law had not settled this question, and legislation only covered admissibility, not standard of proof.

New Zealand common law has taken the position, almost as a mere assumption, that no particular standard of proof of propensity is required, but that instead admissible evidence of propensity is just circumstantial evidence that can be considered with all the other evidence in determining guilt on the present charge. For example, see R v Guy (1996) 13 CRNZ 589 (CA). And if the defendant had been previously charged with offending that would be evidence of a relevant propensity, but had been acquitted, evidence of the facts supporting that earlier allegation can, notwithstanding the acquittal, be given to prove the propensity: R v Degnan [2001] 1 NZLR 280, (2000) 18 CRNZ 319 (CA).

Is there necessarily an inconsistency here with Mitchell? That case only requires the propensity, not the evidence of it, to be proved beyond reasonable doubt. Its effect is that the method for determining facts if propensity evidence is relied on is to consider all the admissible evidence of propensity, to assess it and to decide whether propensity is proved beyond reasonable doubt. If it is, then it may be taken into account with the evidence of the present allegation. If it is not proved to that standard it must be ignored. It is not mixed with the other evidence in the case when the fact-finder is deciding whether there is a propensity.

This is inconsistent with the New Zealand approach. See for example R v Holtz [2003] 1 NZLR 667, (2002) 20 CRNZ 14 (CA), discussed here on 14 October 2004, where no standard of proof is required except for an ultimate conclusion of guilt. It is sufficient (at [39]) that the fact-finder “conclude” or be “satisfied” that the evidence of propensity establishes the relevant propensity. There the Court “rejected a general requirement that pattern or the like must be found beyond reasonable doubt before similar fact evidence may be used”.

The Mitchell rule requires the fact-finder to ignore evidence that is in reality highly probative. The judicial consideration of a variety of solutions to this problem in HML v The Queen [2008] HCA 16 (discussed here on 26 April 2008) was not mentioned in Mitchell. In Mohammed v R [2011] NZSC 52, [2011] 3 NZLR 145, (2011) 25 CRNZ 223 (discussed here) the focus was on other aspects of how juries should be directed on propensity evidence, so this point may still be open.

Update: On 26 November 2018 the New Zealand Supreme Court refused leave to appeal on a challenge to the absence of a requirement for proof of propensity to the beyond reasonable doubt standard, holding that, despite the different approaches in the United Kingdom and Australia, the law in New Zealand had taken a different course and was now settled: Grooby v R [2018] NZSC 114.