Assessing reasonable grounds to suspect

Whether there were “reasonable grounds to suspect” the commission of an offence can be controversial. Recently our Court of Appeal has divided over whether there were reasonable grounds to suspect that the defendant had possession of an offensive weapon. The case is not yet publicly available, but suppression orders have lapsed. For people who have access to the databases the neutral citation is [2017] NZCA 108. When it is available it should be obtainable at nzlii.org (as number 108 in the list).

Reasonable grounds to suspect that a weapon will be found are required by s 27 of the Search and Surveillance Act 2012. Relevant matters were that it was 3 am when the defendant was questioned on a street and his response was “very cagey” as to where he had come from and why he was in the street and not wearing shoes although it was cold, his clothing (shorts and a camouflage jacket) was similar to that of a person who was believed to be involved in stealing from cars, he kept his hand in his jacket pocket and was behaving in an agitated manner (at [17]). These circumstances where held to have given the officer reasonable grounds to suspect that the defendant was in possession of an offensive weapon. Peters J (who delivered the Court’s judgment) recorded her dissent on this point. She did not consider that the circumstances relating to the initial dispatch to the scene suggested violence or a person with a weapon, and although the defendant was agitated nervousness is insufficient, and the defendant had simply kept his hand in his pocket. Further, he had identified himself, and there was nothing to suggest that he was going to use violence, particularly as four constables were present at the time of the search (at [26]).

The difference between the judges may be due to what assumption was be made at the beginning of the analysis. Should the defendant be assumed to have the probability of carrying a weapon that a randomly chosen person would have, or a randomly chosen person of the defendant’s age, and gender (to mention the two morally acceptable groupings), at that time of night? To avoid exaggerating individual facts which will be considered later in the analysis, the most neutral starting point should be chosen: the probability that a randomly chosen person has possession of a weapon.

However, another starting point sounds as if it is fair, but it will often lead to the opposite conclusion. This is that the defendant is just as likely to have a weapon as not to have a weapon. The even balancing here sounds neutral, until one asks, why should the defendant be assumed to have a probability of 0.5 of having a weapon? It may be that only 2 people out of every 100 have possession of weapons, so why not start with a probability for this defendant of 0.02?

Having chosen a starting point, the particular circumstances are examined. The judges may well have agreed on the probative value of each item and on the effect of taking them all into account together. Suppose that they agreed that the occurrence of these combined circumstances was 14 times more likely if the defendant had possession of an offensive weapon than if he did not. A judge who started with an assumption that the defendant was no more likely to have a weapon than would a randomly chosen person, would conclude that the ultimate probability that he had a weapon was around 0.3. This could not be reasonable grounds to suspect. But a judge who started with the assumption that the defendant was just as likely to have a weapon as not to have one, would conclude that the ultimate probability that he had one was over 0.9. This would certainly be equivalent to reasonable grounds to suspect possession of a weapon.

This analysis, which uses Bayes’ Theorem (something I didn’t mention so as not to put off many readers), shows how important the initial assumption is. A judge who started with the 0.5/0.5 assumption (giving Bayesian priors of 1) would think that was a fair starting point, but was it?

The judgment does not mention whether any offensive weapon was found in the defendant’s possession; other specified incriminating things were found, in respect of which he was charged.

The meaning of means: mental elements of drug importation in Australia

To find out what the law is you first look for relevant legislation. When deciding how to explain the law about the state of mind required for proof of unlawful importation into Australia of a border controlled drug, a judge will first look at the Criminal Code (C’th). Relevant sections are s 307.1 and the fault elements defined in ss 5.1 – 5.4.

The High Court of Australia in Smith v The Queen, The Queen v Afford [2017] HCA 19 (10 May 2017) (hereafter “Smith”) at [69] has given guidance as to how to logically apply this legislation to cases where the mental elements of unlawful importation of a narcotic are in issue.

These appeals reached the High Court because of difficulties around how the process of drawing inferences should be explained. Difficulties arose because of the need for intention as to one element but only recklessness as to another. Intention is necessary as to the bringing of a thing (whatever it may be) into Australia, and recklessness is sufficient as to whether it is a border controlled drug.

Inference drawing is a matter of proof. Proof of intention by inference can arise from circumstances which show that the defendant “was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved [the prohibited] act and nevertheless persisted in that conduct”: Kural v The Queen (1987) 162 CLR 502, [1987] HCA 16 (and quoted in Smith at [7]). The statutory language changed after Kural, and now the concept of a significant or real chance calls to mind the phrase “a substantial risk” in the definition of recklessness (s 5.4).

The risk of confusing the old common law with the new statutory language no doubt lies behind the joint judgment’s comment in Smith at [68] that “looking to the future it might be preferable if directions given in cases like these were made to align more closely to the language of the Code, and in particular to the statutory definition of intent in s 5.2”.

In s 5.2(1), intention includes meaning to do something, here, to import the substance (at [6]). The Court’s guidance as to appropriate directions on the drawing of inferences include (at [69] para 8(ii)) that it is open to use a proven belief that there was a real or significant chance that the thing was done, to support an inference that it was meant to be done. This comes from the Kural exposition of the law, and needs to be read in the light of the Court’s fuller explanation. The point in Smith is that awareness of a real or significant chance means that “it is open to infer on the basis of all the facts and circumstances of the case that the accused intended to import the substance” (at [60]), and where “a person is aware of a real or significant chance of the presence of an extraneous substance in an object which the person brings into Australia, and does nothing by way of inspection or declaration to avoid the risk of its presence, the circumstances of the case strongly suggest that the person's state of mind is, in truth, that he or she is prepared to proceed with bringing the object into Australia even if the substance is in the object; and thus that the person means and intends to import the substance” (at [59]).

This is perilously close to recklessness at common law, and one must wonder whether attempts to substitute for the clear language of a statute are necessarily helpful. Did the word “means” in s 5.2(1) really need to be explained in terms of a real and substantial risk?

Knowledge, in law, includes wilful blindness. This is the state of mind of a person who ignores a suspicion because of a determination to remain ignorant of the truth. That person is deemed to know the truth. See R v Briscoe 2010 SCC 13, [2010] 1 SCR 411, and R v Martin [2007] NZCA 386 at [11] where consistency with R v Kural [1986] VR 673 at 676-678 is noted. So, acting with that knowledge is meaning to do that thing, and is intending to do it. This is different from recklessness, where a person simply fails to take the measures that a reasonable person would have taken to investigate whether the suspicion is true.

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.]