Discrimination on grounds of sex: Bostock v Clayton County, Georgia

It was most interesting, even amusing, to read the new definition of “sex” offered by the Supreme Court of the United States by a majority of 6-3 in Bostock v Clayton County, Georgia No 17-1618, June 15, 2020.

The context was discrimination, and the issue was whether an employer who fires an employee because they were homosexual, or, in another jointly heard appeal, transgender, thereby discriminates against that person because of their sex.

Prohibitions against discrimination because of sex have not always included homosexuality. Sometimes homosexuality is mentioned as a separate instance of prohibited discrimination.

For example, initially the New Zealand Bill of Rights Act 1990 did not specify sexual orientation as being within the prohibited discriminations in s 19, although it did specify sex as being included within those prohibitions. But later, s 19 was amended with the coming into force of the Human Rights Act 1993, and sexual orientation became a specific matter over which discrimination was, and is, prohibited: s 21(1)(m), in addition to sex s 21(1)(a).

There would be no need to specifically add sexual orientation if it was obviously within the prohibition of discrimination on grounds of a person’s sex.

The majority’s paradigm works like this: discrimination on grounds of sex includes dismissal of an employee because of behaviour that would not lead to the dismissal of an employee of the opposite biological gender.

Enough of what the majority said. What are the implications?

In this paradigm, “behaviour” can include many things, not just having sex (or displaying an interest in having sex) with a person of the same biological gender. Various things leading up to full cross-dressing could qualify: fingernail painting, makeup wearing, surgical modification of body shape, wig wearing, suggestive clothing, and so on. Opposite-gender mannerisms and speech characteristics would also fit the paradigm.

Some attention was given to whether an employer’s announced general policy (“We do not hire gays, lesbians, or transgender individuals”) was discriminatory against sex. Alito J, dissenting, agreed with a concession in argument that this would not be sex discrimination. But obviously, if such a person was employed and their infraction of the policy later discovered, then firing that person for that reason would fit the majority’s paradigm of sex discrimination.

Alito J also was concerned with implications under other legislation, and in contexts such as bathrooms and locker rooms. Put plainly the point was, would a heterosexual person be comfortable with a transgender person – entitled under the majority’s opinion to share a locker room - looking at their naked body? Women’s sports were also an area of difficulty, if men who identify as women are not to be given an unfair advantage in that arena.

And, continued Alito J, are segregated accommodations, such as student living facilities still permitted? Similarly, do the segregating practices of some religions infringe the new understanding of sex discrimination?

Various other examples of potential problems were mentioned, including the effect on freedom of speech of the now-apparent obligation to use gender pronouns in a non-discriminatory way.

Lots of fun for lawyers is on the horizon.

The split of the Court is also of some interest. The Bush Junior nominees split (Roberts CJ in the majority, Alito J dissenting), as did the Trump nominees (Gorsuch J leading the majority, Kavanaugh J dissenting) the Clintons (Ginsburgh and Breyer JJ) were in the majority, as were the Obamas (Sotomayor and Kagan JJ), and the Bush Senior nominee (Thomas J) joined the dissent of Alito J.

COVID-19 lockdown: how far may you stray?

We are currently in level 3 lockdown in response to the COVID-19 pandemic.

How far may we travel from our home or residence to get some exercise?

The law must not be so vague as to be meaningless. This is not to say that all vagueness is meaningless. Courts are familiar with getting to grips with concepts such as, what is “reasonable” force in self-defence, what is “disorderly” behaviour, what is “indecent” material, etc.

The lockdown conditions are prescribed in the Health Act (COVID-19 Alert Level 3) Order 2020.

Of interest here is clause 7(e)(i):

“A person is permitted to do any of the following as essential personal movement: ... leave their home or place of residence for the purpose of exercise or other recreation if—

... it is done in an outdoor place appropriate for that kind of exercise or recreation that is readily accessible (including by using their vehicle) from their home or place of residence (and, in any case, is within the same or an adjacent region); ...”

The expression “readily accessible” is not defined in the Order, but “region” is.

At this point there is some complexity, for “region” means:

“the area of the Civil Defence Emergency Management Group (under the Civil Defence Emergency Management Act 2002) of which the relevant territorial authority is a member”.

The central concept here is a civil defence emergency management group (CDEM group). There are 16 such groups in New Zealand. Territorial authorities are listed in Part 2 of Schedule 2 to the Local Government Act 2002.

So, if you are in Auckland, you are in the territorial authority of the Auckland Council, and this is a member of the CDEM Group called the Auckland CDEM Group, indicated on the map.

Sticking with the Auckland example, “adjacent” regions are the Northland CDEM Group, and the Waikato CDEM Group. In contrast, the Bay of Plenty CDEM Group is not adjacent to the Auckland CDEM Group.

This is, it turns out, quite straightforward. But it leaves us asking, are all locations within the Auckland CDEM Group “readily accessible” to a person who resides in the Auckland CDEM Group (or to a person who resides in the Northland CDEM Group or in the Waikato CDEM Group)?

Why does the Order mention these groups at all, if the more constrictive condition on movement is the “readily accessible” one? Or, does “readily accessible” mean something like by one mode of transport (hence the reference to vehicle). Does the Order prohibit movement by car followed by completion of the journey on horseback? I jest, of course. But does it prohibit travel by car then by bicycle?

But Don, you may say, the government has put guidance on this on its COVID-19 website. It says, under FAQs for recreation:

“How far can I drive to do a recreation activity?

“You should drive as short a distance as you can, and still do the activity. You must stay local.

“Your nearest recreational area could mean travelling to a neighbouring region if you live on a regional boundary, as long as this is still local and a close distance to your home. Travel to your nearest park or beach, not your favourite one.”

It plainly says here that the requirement is “stay local”.  This is further explained under the heading Exercise at Alert Level 3:

“Where you can exercise

“Stick to your local area. For example, go to your nearest beach or park, not your favourite one. Staying overnight at a bach or holiday home is not permitted.

“You should drive as short a distance as you can and still do the activity.

“If you live on a regional boundary, this might mean travelling to a neighbouring region. This is fine as long as it’s still local and a close distance from your home.”

Quite understandable. Why isn’t this in the Order? Being advice from the executive branch it is not law, unless it comes within the powers of delegation of the official who issued the Order (the Director General of Health). But under the Health Act 1956 the Director General has no power of delegation in this respect (note the repeal of s 5B; current delegation powers exist only under s 112K in respect of the National Cervical Screening Programme).

To what extent, as a matter of law, are the executive indications about staying local able to be used to interpret the Order? The Interpretation Act 1999, ss 5 and 34 are relevant here. Section 34, specifically relevant to orders of this sort, refers us to the Act under which the order was made, but the Health Act does not define “readily accessible”. We are left wondering whether “readily accessible” really corresponds to only “staying local”.

Lord Sumption has stressed the importance of distinguishing law from executive directive, lest freedoms be eroded by fiat. The courts might be cautious about applying executive directives instead of legislation (in this case, subordinate legislation in the form of the Director General of Health’s Order). Everyone needs the law to be clear. Instead of using the generality “readily accessible” – which courts can interpret but of course after the event of an alleged infraction – the order should use agreed units of measurement: you may walk for X km, you may drive for Y km and then walk for X km.

But where is the legislative authority for including restrictions on movement in an Order? This Order was made purportedly, as stated in the first sentence of the Order, pursuant to s 70(1)(f) and (m) of the Health Act 1956. Prohibition of congregating is allowed, but there is no reference to prohibiting movement.

Permitting people to move outside their residences for the purpose of exercise is so obviously desirable that, if on strict interpretation there is an absence of statutory power to make orders regulating people’s movements, some justification needs to be found. Enforcement requires lawful authority. Constitutional lawyers will point to a shift in what Kelsen called the Grundnorm, according to which near-universal public acceptance of rules is what gives them de jure status. Radical indeed, to the point of being revolutionary (and indeed this idea is used to explain successful revolutions). However, such an esoteric constitutional and jurisprudential concept, like arguments that endeavour to bridge the gaps that sometimes occur between law and common sense (or, if I might be permitted to add another language, la réalité), is unlikely to be well received by judges.

Obviously the power to regulate movement needs a source in legislation.

Update: And now it has one: the COVID-19 Public Health Response Act 2020, s 11(1)(a), and the COVID-19 Public Health Response (Alert Levels 3 and 2) Order 2020, clause 9(e), although it still uses the concept of ready accessibility. I guess that if you have walked there from home the place must be readily accessible. For the High Court (Full Bench)'s view on vagueness, see Borrowdale v Director-General of Health [2020] NZHC 2090, at [291]. See also S v Commissioner of Police [2021] NZHC 743 at [84] on the requirement of clarity for the purposes of lawfulness under the New Zealand Bill of Rights Act 1990.

Stare decisis: contrasting judicial opinions in Ramos v Louisiana

In my post of 16 April I suggested that ascertaining the ratio of a multi-judge case can be entertaining. Who could have guessed how great the entertainment is when a bench of nine divides over the ratio of a case decided by the same Court?

This was the amusing part of Ramos v Louisiana USSC No 18-5924, April 20, 2020. The case holds - you could call this its ratio - that the Sixth Amendment right to jury trial requires that in the States (as with the federal courts and the courts of the territories) juries must be unanimous in their verdicts.

Of more general interest is the Court’s treatment of its 1972 decision Apodaca v Oregon, 406 U.S. 404. This decided that majority verdicts in State courts are permitted by the Sixth Amendment. On this the Court split 5-4, the 4-4 stalemate being broken by the fifth judge, Powell J. His reasoning was idiosyncratic, to say the least. He said that the Sixth Amendment means one thing for the federal courts and the courts of the territories, and another for the state courts.

Suppose, as occurred here, the reasoning of the other judges was on two competing lines, each cancelling the other out. When this sort of division occurs, does the idiosyncratic reasoning bind subsequent Courts? It would if it were ratio. If the idiosyncratic reasoning, being ratio, has no basis in precedent, can subsequent courts simply say it was wrong even if it has been applied for nearly 50 years? Or does the idiosyncratic opinion of one judge bind subsequent benches of nine judges?

Although following precedent, stare decisis, is extremely important for the stability of law (see the opinion of Kavanaugh J, emphasising that in respect of constitutional precedents, a decision to overrule should consider whether they are egregiously wrong, whether they have they caused social harm, and whether overturning would cause undue social disruption), human ingenuity is such that a later court can always find a way to decline to follow a previous decision. The Court did this in Ramos. The dissenters were Alito J, joined by Roberts CJ and Kagan J. They applied Apodaca and would have held that majority verdicts are permissible in state courts. Three of the majority judges, Gorsuch J, joined by Ginsburg and Breyer JJ would have preferred to have given Apodaca no precedent value. But, joined by Sotomayor J, and by Kavanaugh J, they held that Apodaca was a precedent but that it was wrongly decided. Thomas J concurred in the result, that unanimous verdicts are required in state courts, but for different reasons: he drew upon the Privileges and Immunities Clause of the Fourteenth Amendment rather than its Due Process Clause, and on that basis he distinguished Apodaca. The dissenters, while not necessarily thinking Apodaca was correctly decided, regarded it as a precedent that should be followed, Alito J joined by Roberts CJ said that it should be followed because of the reliance that had been placed on it, while all three dissenters agreed that its ratio is that when a defendant is convicted in a state court and at least 10 of the 12 jurors vote to convict, and the defendant argues that the conviction violates the Constitution because the vote was not unanimous, the challenge fails. This narrow view of the ratio enabled these judges to disregard Powell J’s idiosyncratic reasoning while applying his conclusion.

The majority decision brought Louisiana (and Oregon) into line with the other States. In any event, Louisiana has enacted a requirement for unanimous verdicts in trials for crimes committed on or after 1 January 2019 (see Kavanaugh J), so the decision can’t have been a great surprise for anyone.

The unanimity requirement cuts both ways, although this is seldom pointed out. A defendant can’t have an acquittal unless all jurors agree on that verdict. When a jury can’t reach a verdict a retrial is usually ordered. So yes, unanimity is a safeguard against a wrongful conviction, but it is also an obstacle to an acquittal.

For those who are interested in whether the Supreme Court is going to overturn Roe v Wade, Ramos v Louisiana provides some insight into judicial attitudes to precedent.

Ramos is also worth looking at for its various references to the history of jury trials.

And here is an insight into the judicial process, by Edward Lazarus in his examination of the judicial culture of the United States Supreme Court, Closed Chambers – The Rise, Fall, and Future of the Modern Supreme Court (1998), pp248-249:

“The most we can expect and what we must demand from the Court as it expounds the law is an integrity born of consistency and sincerity. Legitimate constitutional arguments are not limitless; they may take several forms familiar to law. They may be based on history, on precedent, on the text, on inferences from the way our government is structured, on appeals to ethics, or on prudential considerations about the consequences of a decision. Often, these modes of argument are used in combination, melded into a convincing whole. And none is perfect for every circumstance. Deciding which modes of argument best suit the facts and circumstances of a given case is both an inevitable moral choice and the essence of judging.”

Police retention and use of unlawfully obtained information: Smethurst v Commissioner of Police [2020] HCA 14

If the police wrongfully seize a cell phone and make their own copy of the information stored on it, can the owner of that information require the police to destroy their copy and not make it available to a prosecuting authority?

This had to be decided in Smethurst v Commissioner of Police [2020] HCA 14, where the cause of action was in equity: an application for a mandatory injunction, which would order the police to cease their retention of data they had copied to their own storage device. That remedy is, where it is available, discretionary. It was sought in order to prevent the police from continuing to benefit from the consequences of their trespass by unlawful searches.

These were not criminal proceedings, and what the data disclosed was unknown. However, the plaintiffs had conceded that there might be prejudice to them with respect to possible criminal proceedings [47]. In broad and vague terms, the plaintiffs – a journalist and a newspaper publisher – might (and it’s a big “might”) have breached national security in obtaining information used as the basis for publications warning people about extensions to governmental powers of surveillance.

A full bench of seven judges grappled with the issues.

The majority comprised a joint judgment by Kiefel CJ, Bell and Keane JJ, and a concurrence in the result by Nettle J who gave slightly different reasons.

The joint judgment reasoned that there was no juridical basis for an injunction here, but even if there was, discretionary considerations would deny a grant because as criminal conduct was suspected there was a public interest in revealing criminality [99]. Just as in criminal cases improperly obtained evidence may be admissible, here the impropriety was not in itself sufficient to foreclose use of the evidence [100], [103]. This prospect of disclosure of criminal conduct was sufficient to decline the discretionary relief that was sought [104]. Injunctions protect legal rights, and here the plaintiffs had no right to protection from being investigated in relation to an offence [85]. This was not a case where the Court had to decide whether there is a common law tort of breach of privacy, as the plaintiffs did not seek to have that determined [90]. 

Nettle J, whose concurrence determined the outcome, agreed that potential disclosure of criminality weighed against granting the injunction [160]. He emphasised that the error by the police was honest, which meant that retention of the information was not so obliquitous so as to be inequitable [158] (a point disagreed with by Edelman J at [262]). Nettle J also considered that weighing against the injunction was an undertaking by the Commissioner of Police to only use the information as if it had been lawfully seized, which meant that if no offending was disclosed the items would all be returned without prejudice to the plaintiff [161] (also disagreed with by Edelman J at [269]). In contrast to the plurality, Nettle J thought it was not relevant to draw upon the public policy concerns surrounding discretionary exclusion of improperly obtained evidence in criminal proceedings, as here there was insufficient information before the Court about criminality [162].

Dissenting judgments were delivered by Gageler, Gordon and Edelman JJ.

Gageler J found the juridical basis for relief here in the tort of trespass [119], drawing upon the need to adapt the common law [120], [124], [126]. He discussed the guiding principles governing the exercise of the discretion concerning equitable relief [134], and emphasised that an injunction need not prevent ongoing investigation of criminality [139].

Gordon J agreed that terms could be devised [188], as did Edelman J [271]. Gordon J put the basis for relief as the excess of power [185], saying that an injunction would merely require the police to obey the law [190]. The police could still seek further search warrants [188], and the discretionary considerations favoured the issuing of an injunction [192]-[197].

Edelman J – in an impressive survey of the equitable remedy of injunction - stressed the inadequacy of the alternative common law remedy of damages [252] (a point recognised by all judges), although he acknowledged the strength of Nettle J’s reasoning at [185]-[162] which suggested that damages could be an adequate remedy. But here, Edelman J reasoned that damages would not be adequate because the statutory protections surrounding the use of lawfully seized material did not apply to unlawfully seized material, and damages would not remedy this absence [263]-[264]. It was also important, in determining the discretion, to consider the police perspective [266]. There was a paucity of facts as to criminality here [267], and the police undertaking to act as if the search warrants had been lawful did not truly reverse the consequence of their unlawful action [269]. An injunction could be drawn in terms that made it subject to the execution of a lawful search warrant [271]. This would not be against the public interest [277]-[279].

So, all the plaintiffs in this case were left with was (translating the equitable remedy of certiorari, and putting it in general terms) a finding that a warrant to search the journalist’s home was invalid. That would, if there were ever to be criminal proceedings in which information retained by the police in this case was to become the subject of discretionary exclusion, be one of the factors for consideration on that admissibility issue.

The exercise of determining the ratio decidendi of this aspect of the case (there are other aspects which will be of great interest to Australian lawyers, including the requirements for a valid search warrant, and some constitutional issues concerning injunctive relief) is one that could entertain students for several minutes. I shouldn’t offer spoilers, other than to say that a critical fact is that the police here acted in good faith in carrying out the search and seizure and copying of the electronic information. Had there been bad faith, Nettle J may have favoured issuing an injunction [158] and so joined in the result favoured by Gageler, Gordon and Edelman JJ to form a different majority. It seems that Kiefel CJ, Bell and Keane JJ would still have refused an injunction because the trespass was complete and the plaintiffs could point to no legal right for the Court to protect [68], [76], [77], [85].

Unreasonable verdict and reasonable doubt

In Pell v The Queen [2020] HCA 12 (7 April 2020) the High Court made some important distinctions between fact-finders and appellate courts considering conviction appeals. At [37]:

“... Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.”

And, when assessing the reasonableness of a verdict of guilty, [39]:

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.” (footnote omitted)

This reflects the need for a fact-finder to keep an open mind until all the evidence has been given, and after the addresses of counsel for each side and the judge’s summing up and instructions on the law have been delivered. It would be wrong, for example, for a juror to think, after hearing the evidence of a prosecution witness, that that evidence was convincing and sufficient on its own to prove guilt beyond reasonable doubt. So, in referring at [39] to the appellate court’s proceeding on the basis that the jury found the evidence of the complainant to be credible and reliable, the High Court was not suggesting that the jury could properly have done that peremptorily in isolation. Really, the appellate court asks, should the jury have recognised that there was a reasonable doubt about guilt?

The appellate court does not ordinarily need to hear or view a recording of the evidence at trial (at [36]): 

“...There may be cases where there is something particular in the video-recording that is apt to affect an appellate court's assessment of the evidence, which can only be discerned visually or by sound. In such cases, there will be a real forensic purpose to the appellate court's examination of the video-recording. But such cases will be exceptional ....”

So, what about the facts? I know it is said that “absence of evidence is not evidence of absence”, but that is not a rule of law. The strange thing about this case is that the alleged criminal behaviour, being unusual and surely of a compulsive nature, was accompanied by so few complaints. If it had happened as alleged, you would expect there to be a multitude of similar complaints covering criminality over many years. Frequent association with young choristers would, one might suppose, make repetition more likely. True enough, juries are told to consider only the evidence that has been given, but they are also told to use their common sense and experience when assessing it. Consistently with this, a defendant’s good character is admissible as evidence to challenge the credibility of an allegation. In this case the High Court held that the jury should have had a reasonable doubt about guilt, but we may well think that on a common sense view the probability of innocence is virtually certain.

Update: For a full critique of the intermediate appellate court decision in Pell, see Dennis J Baker, "Accusation as Proof: Uncorroborated Historic Sexual Abuse Allegations" (2020) 84(1) Journal of Criminal Law 1.

Money laundering, structuring, implications of Lordianto v The Queen [2019] HCA 39

Money laundering can be committed recklessly. When you add that fact to what you have learnt from Lordianto v The Queen [2019] HCA 39 (13 November 2019), the implications are startling.

Suppose you are expecting a large deposit in your bank account, say $100,000. As far as you can see, there is no reason why that would not appear in your bank account as a single transaction.

Surprisingly, you find that there has been a series of deposits, each under $10,000, to make up the expected $100,000. For example, 11 deposits: 10 of $9,990 and one of $100.

Knowing what you do know, after reading Lordianto and learning about cuckoo smurfing, you must be alert to the risk that what has gone on is called structuring, and it is an offence against the anti-money laundering legislation.

Structuring is arranging transactions to avoid detection by agencies who have due diligence obligations under that legislation. In New Zealand, it is an offence against the Anti-money Laundering and Countering Financing of Terrorism Act 2009, s 101.

This is not your offence, but the question is whether you know that there is a risk that structuring has been committed, and whether objectively it is unreasonable for you to take that risk. This recklessness comes into play because it is a way that money laundering can occur. And you are presumed to know the law, for example the prescribed threshold for the bank having to report the relevant transaction, as set out in the AML/CFT (Definitions) Regulations 2011.

Money laundering is an offence defined in s 243 of the Crimes Act 1961. If you “deal with” the deposits, by transferring them (or strictly in legal terms, exercising your rights pursuant to the chose in action referable to the credit in your account) to anyone, and that dealing involves concealment (which it necessarily does, because concealment is defined to include converting it from one form to another), with the necessary state of mind, the offence of money laundering is committed.

Recklessness as to whether the deposits are proceeds of the offence of structuring is the catch that could easily criminalise a person who in all other respects expects to be the recipient of lawful funds.

Furthermore, the structured funds could be restrained under the Criminal Proceeds (Recovery) Act 2009, preventing you from accessing them.

Differing desirability: admission of improperly obtained evidence in New South Wales

Illegal video surveillance of animal cruelty, producing a series of recordings, followed by application for a search warrant, and then the obtaining of admissions by a trick, led to challenges to the admissibility of evidence in Kadir v The Queen [2020] HCA 1 (5 February 2020).

The three groups of challenged evidence were the video recordings, the information obtained in the search, and the admissions made to a civilian informant.

At first instance, all the challenged evidence was held inadmissible, because it flowed from the illegal surveillance, and the weighing exercise required by the legislation led to that result.

On appeal, the Court of Criminal Appeal (NSW) held that all the evidence was admissible.

The High Court of Australia held that the video surveillance evidence was inadmissible, but the other evidence (search, admissions) was admissible.

This was not held to be a suitable occasion for clarifying the law on how appeals under this legislation should be approached (at [8]). For a review of issues that need attention, see Chris Edmonds, “Appeals from Discretions, Satisfactions, and Value Judgments: Reviewing the House Rules” (2017) 41(2) Melbourne University Law Review 647.

Decision criterion

The statutory decision process here as set out in s 138 of the Evidence Act 1995 (NSW) (reproduced at [10]) requires that the evidence to which it applies “is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.”

That looks quite simple. It lacks the encumbrance of the New Zealand requirement (s 30 of the Evidence Act 2006): (2)(b) the judge shall “... determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice.”

You don’t have to be Wittgenstein to know that the meaning of “the need for an effective and credible system of justice” can only be ascertained from the way it is applied in cases. It is what we might nowadays call a meta-level explanation of the shape of the boundary between cases where improperly obtained evidence is admissible, and those where it is inadmissible. Is it a useful part of the statutory criteria, or is the NSW provision an adequate alternative?

The NSW provision has been fleshed out by case law. The words desirability and undesirability refer to (at [13]) the public interest in all relevant evidence being before the fact-finding tribunal, and the public interest in not giving curial approval, or encouragement, to illegally or improperly obtaining evidence generally.

No doubt, a scholar of Australian evidence law could sort out admissibility decisions under provisions like s 138 into those resulting in admission, and those resulting in exclusion, of improperly obtained evidence in criminal cases, and could claim that the shape of the boundary between those decisions reflects some abstraction such as the need for an effective and credible system of justice. The only useful point in doing that would be to provide a framework for predicting the correct result of undecided cases, or to identify cases that have been decided wrongly. Hardly a useless exercise.

To what extent is the decision in Kadir determined by precedents illustrating the seriousness of the illegality, the seriousness of the alleged offending, and the relative weighs of the matters that are to be taken into account pursuant to s 138(3)? Without reference to other cases the appeal outcomes could seem to be just differences in opinion, not really legal determinations.

Onus

The party seeking to adduce the evidence must satisfy the judge that the desirability of admitting the evidence outweighs the undesirability of admitting it: s 138(1). This is clearer as to onus than is the New Zealand provision, which has caused some confusion: see my note on Kearns here.

It’s not an all-or-none question

Kadir illustrates the need to address each category of challenged evidence in turn, rather than lump them all together as happened at first instance. This is because the weighing factors differ with context (at [42]).

The search warrant was obtained in reliance on the improper surveillance, but the agency seeking the warrant (the RSPCA) was unaware of the illegality (at [38], [41], [47]-[48]). That was a significant difference from the position of the informant who carried out the surveillance, who had trespassed to place the camera.

The trick involved in obtaining the admissions did not depend on the illegal surveillance (although the admissions were obtained by the person who had carried out the surveillance), and it was no more objectionable than tricks routinely used to collect evidence ([50]-[51]).

Relevant to the admissibility of the search and the admissions evidence was the absence of the element of criminality that had been involved in the obtaining of the surveillance evidence.

Furthermore, and this might cause the brow to wrinkle (but it’s just a consequence of the separate consideration of the categories of evidence), exclusion of the surveillance evidence increased the importance of the remaining evidence for the prosecution case. The public interest in excluding the surveillance evidence resulted in an enhanced public interest in admitting the other evidence (at [42], [47]).

The absence of lawful means of getting the evidence

The significance of the impracticability of any alternative lawful means of getting the evidence that was obtained by unlawful surveillance was a matter over which the courts differed in this case. At first instance the parties had apparently assumed that this factor weighed in favour of admitting the evidence, and the judge had found it difficult to gauge the weight to give this (at [3]-[4]). The Court of Criminal Appeal accepted that this factor weighed in favour of admitting the first of the series of video recordings in view of the likely inefficacy of an anonymous complaint (at [36]). The High Court’s determination is at [20], emphasising at [37] that here the difficulty of getting the evidence lawfully weighed against admitting the surveillance evidence.

The significance of the impracticability of alternative lawful means of obtaining the evidence can vary with circumstances, but it may weigh in favour of admitting the evidence if there is urgency. It is likely to weigh against admission if there was deliberate or reckless illegality. It is likely to be neutral if the impropriety was neither deliberate nor reckless ([20]). [1]

Did the illegality link to the obtaining of the evidence?

The admissions were made to the person who conducted the illegal surveillance. Although the surveillance was a step leading to the conversations, that was all: [51], endorsing the CCA decision on this point. No information obtained illegally was used by the informer in her conversation eliciting the admissions. Although there was a “bare connection”, admission of the evidence was unlikely to convey curial approval or encouragement of the contravention.

This gets around the “but for” objection: no conversation would have occurred but for the illegal surveillance. The judge at first instance had applied “but for” reasoning (at [34]-[35]).

The use of unlawfully obtained information in the application for the search warrant

Here the RSPCA was unaware of the illegality and it put forward the unlawfully obtained information in good faith in its application for the search warrant (at [41]). What if it had known? Would it have been sufficient to disclose the illegality to the official considering the application? What could that official be expected to do in the face of such disclosure? In any event, how should a court address the validity of a search warrant issued on improperly obtained information? For the New Zealand position, see R v Alsford [2017] NZSC 42, holding by a majority that improperly obtained evidence (here referring to evidence that a court has ruled inadmissible, but applicable pari passu) may be advanced in support of an application for a warrant if it is identified as such, and its impropriety will be a balancing factor in considering the admissibility of evidence obtained by the warrant (Alsford at [100]).

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[1] In New Zealand we are less inclined to allow the absence of, or failure to use, available lawful means of obtaining the evidence to be used as a factor weighing in favour of admission of the evidence. See the Law Commissions Second Review of the Evidence Act 2006 (February, 2019) at [7.36]-[7.40]. It is difficult to see, in principle, how urgency - one of the excuses for failure to use known lawful alternatives - can do anything other than reduce the weight to be given to impropriety. An exception to our disinclination to admit evidence obtained unlawfully, when there was a known lawful alternative means of getting it, is Robinson v R [2017] NZCA 347 at [26], where the fact that a search warrant could have been obtained (but wasn't) weighed heavily in favour of admission of the evidence obtained in the search of a storage unit. This decision, of a Divisional bench (one permanent Court of Appeal Judge, sitting with two High Court Judges), does not refer to the leading case, R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [127] which describes deliberate decisions not to employ lawful techniques of investigation as aggravating impropriety. Williams is a decision of a bench of permanent members of the Court (two of whom became members of the Supreme Court). The Robinson bench breached, unwittingly, the law as stated in Williams. The Law Commission did not refer to Robinson in its Second Review. Again, a "Charlie Foxtrot" occurred in Moore v R [2017] NZCA 577 at [19], where failure to obtain a warrant to search a vehicle which had been secured at a police station was treated as raising inevitability of discovery "if a warrant had been obtained". This time the bench consisted of permanent members, so there isn't even a status excuse for the Court's failure to follow the law. Also not cited by the Law Commission. Even so, had the correct reasoning been used in Robinson and Moore, the results of the appeals would have been the same, so these cases are examples of right result, wrong reasoning.

On the evidence: the verdict in Lundy

Don’t let me fall into the trap of getting into an argument about the Lundy verdict. By verdict I mean the verdict reached by the Supreme Court justices.

I don’t think an appellate court should ever have to reach a verdict. But when it does, it can illustrate how fact-finding should rationally be undertaken.

Appellate courts usually consist of three or more judges, and differences are settled by majority vote. The defendant at a jury trial that has gone wrong may therefore end up being convicted by a majority in the appellate court. Twelve jurors or two judges – which would you prefer?

That’s the broad picture. In Lundy the Supreme Court mentioned the Court of Appeal’s point that this was a case which did not turn on the credibility of witnesses [85]. If it had been, no doubt the Court would have recognised that it was at some disadvantage because it did not hear and see the witnesses, and the disadvantage might – although not necessarily - have been such that it would not be proper for the appellate judges to try to reach a verdict.

When appellate judges reach verdicts, the right to a jury trial is limited. This was recognised at [34], where the Court refers to observations of the High Court of Australia in Weiss v R [2005] HCA 81 at [30]. Essentially, and if I might be cynical for just a moment, this means that the right to a jury trial is a right to an attempt at a lawfully conducted jury trial.

This was an entirely circumstantial case. So was Bain, and we remember how the Privy Council rejected any temptation to come to its own verdict. Even with the apparent change in approach brought about in Matenga (being more permissive of appellate court verdicts), the Privy Council said that the result in Bain would have been the same. So this whole area invites controversy.

Objections to the Lundy verdict focus on the alleged unreliability of evidence that stains on Mr Lundy’s shirt contained central nervous system tissue (“brain tissue”). Let’s put that evidence to one side, and consider what the verdict would have been without it.

The presence of Mrs Lundy’s DNA in the shirt stains was incontrovertible. The stains were not tiny: 25mm x 10mm, and 30mm x 20mm (noted at [75]). They were visible. I doubt that most people would wear [strictly on these facts, have possession of] a shirt with that staining, especially as it contained blood. And, how common is it to have blood of that quantity and from one’s partner on a shirt that has continued to be worn? Even supposing that 20% of people wear shirts with such staining – and I take this as an absurdly high occurrence in favour of the defence – this evidence strongly favours the prosecution case.

Attention then turns to the other evidence: motive, timing of food consumption, the neighbour’s observation of the open door, the fuel consumption and odometer evidence, the surprising absence of DNA evidence in Mr Lundy’s car or at the motel, the apparent staging of the burglary, the paint, and the child victim’s blood specks on Mr Lundy’s shirt. Taking all that together could firmly support the prosecution case, or weakly support the defence case, depending on the various likelihoods that fact-finders could reasonably attach to the various items of evidence.

If this other evidence in combination firmly supported the prosecution case it would be reasonable to conclude that Mr Lundy was guilty (remembering that this is ignoring the brain tissue evidence). If it weakly supported the defence case, then guilt could not be proved on the (generous to the defence) assumption that 20 per cent of people have their partner’s blood on their shirts to the extent that Mr Lundy did. If this figure is “only” 10 per cent, then guilt would be proved beyond reasonable doubt.

How do we know? This is Bayesian reasoning with conditional probabilities. Never mind if you don’t employ that somewhat mathematical approach, because common sense should tell you the same. [1]

The brain tissue evidence resulted in considerable expense and delay in the proceedings, and you could wonder whether the prosecution was over-egging its pudding. But it didn’t know whether the defence was going to have a ready answer to the DNA presence in the stains. This could be seen as a compliment to the skills of defence counsel, but we could wonder whether, in seeking to prove its case to a certainty rather than merely beyond reasonable doubt, there was (to pursue another culinary metaphor) unnecessary icing on the cake.

What if the appeal had been heard under the new appeal criteria? How would the evidence be analyzed if the court simply had to ask itself whether the error at trial had created a real risk that the outcome of the trial had been affected? The error was material to one chain of evidence: stain – CNS tissue – (mRNA) – Victim1. Taking out this mRNA chain, the remaining chain was: stain – blood – DNA – Victim 1. Did the removal of the mRNA chain significantly weaken the link between the stain and Victim 1?
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[1] Oh alright, for you maths buffs: If the defendant was innocent, a huge coincidence had occurred: blood from each of the two victims was on his shirt. Such little information as there is online about transfer of blood to clothing suggests that about 3 per cent of people have blood from someone else on their clothing. This is much lower than the figures I assumed above. The ratio for the likelihood of the prosecution hypothesis to the likelihood of the defence hypothesis, the probability of finding the match given each hypothesis, would therefore be, for each of the blood sources (ie, the victims), 1 to 0.03, or 33.3 to 1. Combining these gives 33.3 x 33.3 = 1108.89 to 1. Assume, generously to the defence, that before considering this evidence we might expect that the probability of guilt compared to the probability of innocence could be, say, 0.2 to 0.8. This ratio is what is called called "the priors" combined with the other evidence in the case. On the blood evidence, and given this priors-in-combination assumption, the combined ratios are 1108.89 / 4 to 1 = 277 to 1. That is the ratio, given this evidence, of the probability of guilt to the probability of innocence. The probability of guilt would therefore be (converting the ratio to a fraction) 277 / 278 = 0.99. That is proof beyond reasonable doubt, on the basis of the assumption that was generous to the defence. Some people say, but you have just guessed at the priors, the whole thing is too subjective, where is the evidence? The answer is that the priors can vary a lot without having much effect on the result. If, instead of assuming priors combined with the other evidence of 0.2 to 0.8, we assume priors combined with the other evidence of 0.05 to 0.95 (very favourably to the defence, effectively an assumption of innocence), then the resulting probability of guilt after considering the blood evidence is 0.98. That is: (0.05 / 0.95) x 1108.89 = 58.36 to 1, so probability of guilt = 58.36 / 59.36 = 0.98.

Tempora mutantur nos et mutamur in illis - or do we?

Would the result in Lundy v R [2019] NZSC 152 have been the same if it had been determined under our current appeal provisions, s 232 of the Criminal Procedure Act 2011?

Applying the former law, the Supreme Court held that the wrongful admission of evidence at trial had not created a substantial miscarriage of justice because if the error had not occurred guilt would still have been proved beyond reasonable doubt, and the trial had not been unfair because the error was not fundamental. It was not necessary to consider the new law, or the extent to which the old law might be affected by the legislative change. But this is really the live issue for lawyers.

If the new law had applied to the Lundy appeal, s 232(4)(a) would be of central concern: did the error at trial create “a real risk” that the outcome of the trial was affected?

It is helpful to consider some dicta from the High Court of Australia in Baini v The Queen [2012] HCA 59. I have previously discussed this case here (December 13, 2012).  As a matter of interpretation, the Court had to ask what was the relevance of a former appeal provision (similar to our former one) to ascertaining the meaning of a new appeal provision. The new legislation considered in Baini is set out at [12], and although its form and language differs from ours, the difference is not presently material. The approach to its construction is described at [14]-[15]. The majority judges then made three observations:

At [29]:

“First, in many cases ... an appellate court will not be in a position to decide whether the appellant must have been convicted if the error had not been made. The nature of the error, irregularity or cause of complaint contemplated by [the legislation] will often prevent that conclusion from being reached by an appellate court on the record of the trial given the "natural limitations" [Footnote: See Dearman v Dearman (1908) 7 CLR 549 at 561; [1908] HCA 84; Fox v Percy (2003) 214 CLR 118 at 125-126 [23]; [2003] HCA 22.] that attend the appellate task.”

At [31]:

“If it is submitted that a guilty verdict was inevitable, an appellant need not prove his or her innocence to meet the point. An appellant will meet the point by showing no more than that, had there been no error, the jury may have entertained a doubt as to his or her guilt. As a practical matter, it will then be for the respondent to the appeal to articulate the reasoning by which it is sought to show that the appellant's conviction was inevitable.”

And at [32]:

“... the inquiry to be made is whether a guilty verdict was inevitable, not whether a guilty verdict was open. (Whether the verdict was open is the question presented by [the equivalent of New Zealand’s s 232(2)(a)].) If it is said that a guilty verdict was

inevitable (which is to say a verdict of acquittal was not open), the Court of

Appeal must decide that question on the written record of the trial with "the

'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record” [Footnote: Fox v Percy (2003) 214 CLR 118 at 125-126 [23]]. That the jury returned a guilty verdict may, in appropriate cases [Footnote: See generally Weiss (2005) 224 CLR 300 at 317 [43]; Baiada Poultry Pty Ltd v The Queen (2012) 86 ALJR 459 at 466 [28]; 286 ALR 421 at 430; [2012] HCA 14.], bear upon the question. But, at least in cases like the present where evidence has wrongly been admitted at trial and cases where evidence has wrongly been excluded, the Court of Appeal could not fail to be satisfied that there has been a substantial miscarriage of justice unless it determines that it was not open to the jury to entertain a doubt as to guilt [Footnote: cf R v Grills (1910) 11 CLR 400 at 431 per Isaacs J; [1910] HCA 68.] Otherwise, there has been a substantial miscarriage of justice because the result of the trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made.”

And at [33]:

“...an appellate court can only be satisfied, on the record of the trial, that an error of the kind which occurred in this case did not amount to a "... miscarriage of justice" if the appellate court concludes from its review of the record that conviction was inevitable. It is the inevitability of conviction which will sometimes warrant the conclusion that there has not been a ... miscarriage of justice with the consequential obligation to allow the appeal and either order a new trial or enter a verdict of acquittal.”

There would be no “real risk” that the outcome of the trial had been affected by the error if the appeal court could be satisfied that the verdict was inevitable. That was the position in Lundy. The result would have been the same under our new law. On this view, our new law would continue the practice of sometimes allowing appeal courts to effectively act in place of a jury. It will be important to identify whether a case falls into the category mentioned at [29] of Baini, as opposed to the category mentioned at [31], and to decide whether this classification is determined by the respondent’s tactic in argument.

But the other view, and the one which I prefer, is (developing what is said at [31] above) that once the appellant shows a real risk that the verdict was adversely affected by the error, it is for the respondent to dispute that; the issue is not inevitability, just real risk. The appeal judges do not act as jurors; they just decide the real risk issue.

Update: A year later, on 18 December 2020, the New Zealand Supreme Court decided how appeals against conviction based on alleged error relating to a trial (ie not those involving allegedly unreasonable verdicts, unfairness or nullity) should be approached. Effectively, the Court read-in a proviso: if an error that is not immaterial or inconsequential is identified, and if it gave rise to a real risk that the result of the trial was affected, then the appeal court must decide whether it is satisfied of the appellant's guilt. The appeal will be allowed, provided (my word) that it will be dismissed if the appeal court is satisfied of the appellant's guilt: [Name Suppressed] v R [2020] NZSC 153. This is not the approach I have preferred. It amounts to a trial by appellate judges, in the appellant's absence, without witnesses appearing, and in reliance on the record of the trial in the lower court.