Upholding a defendant's right to silence

A judicial direction to a jury which conflicted with a defendant’s right to silence – by suggesting that silence may make it easier for the jury to accept the evidence of a complainant – led to an order for a retrial in GBF v The Queen [2020] HCA 40 (4 November 2020).

 

It didn’t save the situation that the judge had, earlier in the directions, put the position correctly, when later on the jury were given an incorrect pathway to conviction.

 

“[22] ... Notwithstanding the earlier directions, why would the jury not take up the trial judge's invitation and find that the complainant's allegations were more likely to be truthful and reliable by taking into account that the appellant had not given evidence denying them?”

 

Nor was this situation saved by failure of all counsel to seek a redirection on the point. Sometimes appellate courts say, well, the mistake wasn’t thought significant by counsel at the time, so overall it didn’t matter. Sometimes that assessment will be accurate, but not here.

 

The effect of the judge’s impugned statement was critical: it invited the jury to engage in a false process of reasoning. This made it a miscarriage of justice.

 

“[23] Such a process of reasoning is false because it proceeds upon a view that the accused may be expected to give evidence. And in an accusatorial system of criminal justice, which places the onus on the prosecution to prove the allegation that it brings, rare and exceptional cases apart, there can be no expectation that the accused will give evidence.”

 

Some people might experience a great temptation to brush over errors of the kind that occurred here, because this was a sex case and no one wants to have a retrial in a sex case. It can be useful to be reminded that the fundamental requirements of the law of criminal trials must be upheld.

Clarifying copyright offences on the internet

Just as I was wondering when our Supreme Court’s decision in Ortmann v United States of America [2020] NZSC 120 would be delivered, here it is today! You can’t be quicker than that.

 

Some people grumble at how rich people clog up the courts with their interminable litigation, but I don’t. We have had a lot of legal issues decided in these proceedings, simplifying the law for future would-be litigants.

 

Most of these proceedings are concerned with the law of copyright and its application in the digital, and specifically, internet, environment. Largely fit for purpose, at least in the context of the issues in this case.

 

The Supreme Court decision held that as far as the substantive law is concerned, the way here is clear for an order for surrender for extradition on nearly all of the charges. As far as procedural law is concerned – and there can’t be a finding of eligibility for surrender if the procedure by which that determination was made was faulty, unless the faults were inconsequential – there is more to be decided, and more submissions from counsel were called for.

 

Some alleged procedural failures had been targeted when the District Court decision went on review to the High Court ([2017] NZHC 189): a failure of the judge to give reasons, peremptory dismissal of applications, criticism of failure of the defendants to prove matters when no opportunity had been given, failure to address an application for stay of proceedings, the jurisdiction to consider stay applications, and the test for abuse of process and stay applications. On appeal, the Court of Appeal ([2018] NZCA 233) said most of these issues were considered in the substantive appeal, but to the extent that they remained procedurally relevant on review they were without merit. However, the Supreme Court needed to decide whether the procedural challenges remained live issues, and if so, in which court – Court of Appeal or Supreme Court - they should be heard.

 

It seems ([588]) that review issues remaining may include procedural unfairness and breach of natural justice, errors of fact, unreasonableness, application for a stay of proceedings, and the residual discretion to intervene arising from cumulative errors.

Update 22 February 2021: The Supreme Court remitted the case to the Court of Appeal, to determine what the issues were and to decide them: Ortmann v United States of America [2021] NZSC 9.

Update 12 July 2021: The Court of Appeal determined that there were no outstanding issues: Ortmann v United States of America [2021] NZCA 310. 

Inquiring into alleged juror bias

When and to what extent should an appellate court, on an appeal against conviction, inquire into an allegation that a juror was biased? Should an appellate court hear the evidence of the juror and allow cross-examination?

 

These issues of principle were decided in Rolleston v R [2020] NZSC 113 (reasons judgment delivered on 19 October 2020).

 

If the power to order an inquiry is not specifically provided for by statute, the court has inherent power to address irregularities in its process by such means as may be necessary in the interests of justice (at [20]).

 

Because of statutory limitation, evidence may not be given about the deliberations of a jury (intrinsic evidence), except in exceptional circumstances giving compelling reason to allow such evidence: Evidence Act 2006, s 76(1). This is the “secrecy rule”, discussed at [22]-[27].

 

However, extrinsic evidence (that is, evidence not involving the actual deliberations of the jury) will be admissible if it is evidence of disqualifying juror conduct or knowledge (at [29]).

 

An inquiry into whether one juror’s attitude to the defendant may have affected other jurors would be an inquiry into intrinsic jury deliberations and would need to clear the high threshold in s 76(3): see [31].

 

Whether an inquiry should be conducted depends on the interests of justice, which depend on the circumstances of the trial and the various fair trial safeguards to ensure a fair trial (at [34], the safeguards are summarised at [36]-[40]).

 

Allegations that, if true, would be inconsequential, trivial, or irrelevant, or that relate to evidence that would be inadmissible, are insufficient to require an inquiry (at [42]). Further, a conservative approach to ordering an inquiry may be appropriate to protect jurors from fishing expeditions unsupported by credible evidential narrative (at [43]).

 

But an inquiry will generally be in the interests of justice where allegations relate to extrinsic evidence and are sufficiently credible to suggest an inquiry could reasonably establish that there has been a miscarriage of justice (at [44]).

 

On the facts here an inquiry was appropriate ([47]). The authorities are unclear on whether, if bias was established, it would necessarily have infected the whole jury (at [48], but Glazebrook J held that it would have: [77]). In any event, the inquiry here, conducted by senior counsel who interviewed and obtained a signed statement from the juror, did not disclose any bias.

 

Cross-examination of a juror may be justified, but leave to cross-examine will be rarely given (at [60]). The interests of justice will again be the criterion, and cross-examination may be necessary where an inquiry is for some reason insufficient. For example, the credibility of the juror’s account may be directly in issue (at [61]), but that was not the case here.

 

Counsel’s report did not contain anything to suggest the juror’s statement may have been unreliable, and there was no real conflict on the essential questions (here: the juror was staring at the defendant's brother who was in the public gallery for most of the trial; the juror had been bullied at school three years earlier by the defendant’s brother). The juror’ statement and the brother’s affidavit were in agreement, but the juror said that during the trial he did not remember the bullying (at [63]). He did not associate the bully with the defendant. An independent observer, knowing all this, would not perceive a realistic possibility that the juror was not impartial (at [68]). There was no good reason to require that the juror be cross-examined (at [69]).

Vagueness, stays, and fast-track: three recent decisions

A cluster of interesting cases occurred this week.

 

Vagueness

 

On handling broad statutory definitions of offences, and broad descriptions of conduct that comes within such definitions, see R v Abdirahman-Khalif [2020] HCA 36. The ways of being liable for the full offence included what would normally count as preparation so as to restrict potential liability to the attempt.

 

Stays of criminal proceedings for misconduct by officials

 

No stay was justified in Smith v R [2020] NZCA 499, but the Court extensively reviewed the common law on this topic. The New Zealand court would not question the lawfulness of a deportation order made by a foreign court (here, in Brazil) of competent jurisdiction.

 

No fast-track of an appeal against an interim order for name suppression

 

In a minute the President of the Court of Appeal declined to fast-track the (second) appeal against an interim order for name suppression in Director of the Serious Fraud Office v ABC and DEF.

 

You have to laugh at this one. Refusal of fast-track rendered the appeal moot, as a hearing on the question of an order (as distinct from an interim order) for name suppression would soon occur (or not occur if an order was no longer sought).

 

Personally – and this is just me, as the point hasn’t been raised in these proceedings – I don’t think there is any right of appeal against the making of an interim order for name suppression. The main point of an interim order is to allow an opportunity for preparation of an application for an order, and who would object to that? The media, of course.

My reasoning: we should note the terminology in the relevant provisions of the Criminal Procedure Act 2011. The terms concerning suppression are “order”: s 200(1), which may be “permanent” or “limited” in term or period: s 208, and “interim order”: ss 200(4), 206.

 

A Registrar may make an interim suppression order: s 206(1). This section describes an interim order as being made “under s 200(4)”. Similarly, s 200(5) refers to interim orders made “in accordance with subsection (4)”. These usages are consistent with orders being distinct from interim orders: the former are made under s 200(1) and the latter under s 200(4).

 

As far as appeals are concerned, the media may appeal under s 283(2)(c), and this section refers to orders. The interpretation provision relevant to this is s 282, which defines (for the purposes of appeals) “suppression order” as an order made under, inter alia, s 200. Consistently with the usage relevant to s 200, this would refer to orders but not to interim orders. Significantly, there is no right of media appeal against an interim order made by a Registrar under s 206.

 

It would be absurd to say that the media may appeal against an interim order for suppression made by a Community Magistrate or a District Court Judge, but not against an interim order made by a Registrar. Accordingly, there is no right of media appeal against an interim order for suppression.

There is a small complication, arising from s 200(5), which allows a court to “renew” an interim order. That can only be done where the same grounds exist as for an order, so I would say that a renewed interim order is really a limited order. [1] It may be renewed by a Registrar, pursuant to s 206(4), which reinforces its difference from an interim order which a Registrar may only make once and not renew: s 206(2) and (3).

 

There is little assistance to be gained on this topic from the NZ Law Commission’s Report No 109 (22 October 2009) “Suppressing Names and Evidence”, although at [6.4] the Commission notes that a Registrar should not have the power to make an order for suppression, and at [6.52] the importance of the media’s ability to report on the administration of justice is recognised, with a recommendation that the media be given appeal rights in respect of orders. The Commission proposed ([3.7] and [3.71]) that there should be a special process for applications for interim name suppression, to allow parties the opportunity to obtain legal advice and gather supporting evidence to make an application for name suppression. The possibility of an appeal against an interim order was not considered.

 

Nor is there any mention of the possibility of an appeal against an interim order in the report of the select committee on the Criminal Procedure (Reform and Modernisation Bill) 243-2, the precursor to the Criminal Procedure Act 2011.

 

Well, wasn’t that interesting.

____________________________________

[1]  Where the existence of a right of appeal is not in doubt, terminology tends to be used loosely, so that the expression “interim order” is used to include a limited order. See, for example, Standfast v R [2019] NZCA 666, a case memorable for its use of the splendid phrase “gangs and other religious groups” (at [35]).

Do you really want to be a judge?

Reading this article on the relative lack of diversity among New Zealand judges has made me wonder why anyone would want to be a judge. I write from the experience of having been a barrister in criminal law.

 

Do you really want to be a judge?

 

Consider the working conditions:

 

            Many hours spent sitting down ...

 

            ... in a poorly air-conditioned room ...

 

            ... probably with no opening windows ...

 

            ... full of people none of whom want to be there ...

 

            ... not everyone being free of contagious illness ...

 

            ... hearing tales of woe and nastiness ...

 

            ... listening to lawyers ...

 

            ... making predictable submissions ...

 

            ... poised to catch you out on any error and appeal your decision ...

 

            ... having very limited freedom of choice about what to decide ...

 

            ... few sentencing options ...

 

            ... having your working hours carefully monitored ...

 

            ... so you are forced to work as hard as is physically possible ...

 

            ... limited vacation time ...

 

            ... even if you think the pay is good, when can you spend it? ...

 

            ... letting the best years of your life pass by ...

 

            ... making an enormous sacrifice of personal freedom ...

 

            ... who is really the prisoner?

 

And, if you still want to be a judge, what are the obstacles?

 

            ... why should you have a better chance with a very good degree, when an ordinary one should              be quite enough?

 

            ... why should you need the “right” cultural or ethnic background, when people are just people?

 

            ... why be at the “top” of the profession, when ordinary lawyers do a lot of good for the   community just by helping people with their legal problems?

 

            ... but an inability to work hard should be an obstacle ...

 

            ... and a lack of judgement should also be an obstacle ...

 

            ... and a lack of wisdom should also be an obstacle ...

 

            ... and a lack of integrity should also be an obstacle.

 

 

Probative value and reliability - the evidence of prison informants

The idea of “probative value” in s 8 of the Evidence Act 2006 came under scrutiny, and was the subject of some disagreement, in Roigard v R [2020] NZSC 94 (14 September 2020).

 

My impression is that this case misses the critical thing about s 8 in this context: it should be all about whether admission of the challenged evidence would have an unfairly prejudicial effect on the proceeding.

 

The evidence will have probative value, otherwise it would be inadmissible under s 7.

 

Whether the probative value is “outweighed” by the risk of unfair prejudice is not a matter of balancing (a word not used in s 8 and one which, as I have argued, introduces an inappropriate metaphor). Outweighed here should mean that, in context, the risk of unfairness posed by admission of the evidence is unacceptable in the sense that it would not be overcome by appropriate cross-examination or by directions the judge could give the jury.

 

In Roigard only brief attention is given to unfair prejudice, identifying the danger as the risk that the jury would “overweight” the prosecution evidence: per Winkelmann CJ and Brown J at [156]. The Judges all agreed that in cases like this, where prisoners give evidence about confessions allegedly made to them by the defendant, it is necessary to formulate guidance for prosecutors and to keep a register of such witnesses’ convictions and rewards for giving such evidence.

 

The judicial disagreement was over the criteria for assessing probative value, with the result that the dissenting Judges would have excluded the evidence of one of the two challenged witnesses. Regarding the risk of unfairness as the same for each witness, the dissenting Judges considered that one witness was so lacking in credibility that the risk of unfairness outweighed the probative value of his evidence.

 

The disagreement in this case is all about probative value. The majority Judges took a narrower view of what reliability factors are relevant to assessing probative value under s 8 than did the minority.

 

But as I have said, it doesn’t matter how probative evidence is, if its admission would cause unfairness.

What is probative value, and does it include reliability?

 

A fact-finder in a trial must decide, when the time comes to reach a verdict, whether to accept a witness’s evidence. Is the witness reliable? Is the witness truthful, and, if truthful, nevertheless possibly mistaken? These considerations are matters of credibility.

 

If the fact-finder decides to accept what the witness says, the next question is how much probative value that testimony has. Probative value is a quality that attaches to evidence that is accepted. In a criminal trial, the probative value of evidence for the prosecution is a comparison of the extent to which the evidence is consistent with guilt or with innocence.

 

There can be occasions where a witness gives evidence about the reliability of testimony. For example, a witness may say that the error rate in DNA testing is x%. The fact-finder will take this into account in deciding whether to accept the evidence of a match. This is different from deciding the probative value of the evidence of a match. The probability of a match may be very high, so the witness’s evidence that there was a match will be credible. But the significance of the match in the circumstances of the case may be much lower, as for example where there are innocent explanations for the presence of the defendant’s DNA at the crime scene. Here, the probative value of the evidence of a match would be lower than where there is no apparent innocent explanation.

The risk of error can be relevant to probative value. The error may exaggerate the consistency of the evidence with guilt and minimise its consistency with innocence. Reliability has two roles: first in relation to the credibility of testimony, and secondly in relation to the probative value of testimony that has passes the credibility threshold.

 

There are no standards of proof at play here. It is sufficient that the fact-finder is satisfied that testimony is credible and that it has a probative value which is for the fact-finder to assess. The verdict depends on whether the fact-finder decides that the combined probative values of the accepted evidence reaches the criminal standard of proof.

 

Applying these thoughts to Roigard: the testimony in question was that the defendant confessed guilt independently to each of the two witnesses while in custody awaiting trial. The first question for a fact-finder (juror) is whether the testimony is credible: did the defendant make the statements reported by each witness? Reliability considerations relevant here were ones of self-interest: what did each witness have to gain from testifying, and was each witness a truthful person?

 

It might have been quite unlikely that a fact-finder would accept any of the contested evidence here. But that would be for the fact-finder unless the evidence was so incredible that it would be irrational to believe it, in which event a judge could rule it inadmissible because it had no probative value and so was irrelevant in terms of s 7.

 

If a fact-finder did accept the evidence here as being credible, then the question of its probative value would have to be considered. A voluntary confession would have a high probative value. It would necessarily be reliable (unless made to protect another person, which was not an issue here), and it would be highly consistent with guilt and inconsistent with innocence. Note that here – where credibility is accepted - it is the reliability of the confession, not the reliability of the witness, that is relevant.

 

But where the fact-finder thinks the evidence was quite likely to be credible, but also possibly not credible, the acceptance of the evidence may be qualified or hesitant. The reduced reliability of the evidence could be reflected by a reduction in the fact-finder’s assessment of the probative value of the evidence.

 

None of these considerations directly address unfair prejudice to the defence. Unfair prejudice would exist to the extent that the defendant was unable to test the credibility of the witnesses by exploring the circumstances that gave rise to their self-interestedness and by examination of relevant previous convictions. Judicial directions, based where appropriate on psychological studies, could assist in reducing the risk that the fact-finder would too readily accept the credibility of the witnesses. The courts have not yet gone so far as to require that the fact-finder be satisfied beyond reasonable doubt that a confession was made. Unfair prejudice would also exist to the extent that the defendant was unable to properly challenge the probative value of the evidence, although here this is less important because a voluntary confession would necessarily have a high probative value. Even where the fact-finder discounts the probative value of a confession because of some doubts as to whether it was made, it would still have a probative value sufficient to affect the assessment of the overall strength of the prosecution case.

Trial and error: lessons for participants

A simple little appeal judgment can contain a lot of lessons. So it is with W (CA641/2019) v R [2020] NZCA 286.

 

The lessons? Here are the points I noted:

 

1. In a trial, don’t forget the elements of the alleged offence.

 

Here, the alleged offence was perjury, and the mental elements were both knowing the assertion (here, in a document) was false and intending by it to mislead the court. The trial judge thought the only issue was whether the defendant intended to mislead, whereas the real issue was whether the defendant knew the assertion was false. Closely related to this is the actus reus: swearing that the document was a true copy in the sense of it being unaltered from the original.

 

2. Be alert for ambiguity, and don’t assume a defendant is using words in their legal sense.

 

Here the ambiguous expression was “a true copy”. Lawyers understand this to be a matter of form, whereas it can also refer to substance. Here, a document was altered by the defendant, who claimed to have been correcting it, and then copied and presented to the court in other proceedings. In lawyers terms it was not a true copy because it had been altered from the original, but in the defendant’s terms it was a true copy because it was a copy that had been corrected from the original.

 

3. Don’t assume that an irritating witness is being dishonest.

 

Demeanour can be misleading and can result in judicial bias.

 

4. An appeal court, working from a transcript of the trial, customarily acknowledges the advantages that the trial judge had in seeing witnesses and deciding credibility, but those advantages can be over-stated.

 

Here, the Court of Appeal had the advantage (although it didn’t say so) of the objectivity gained by not being subjected to the stress and errors of judgment caused by the irritations of trial.

 

5. Bias can cause a judge to take sides, and to permit an objectionable style of cross-examination of a defendant.

 

Here, the Judge in his verdict described the prosecutor’s cross-examination of the defendant as “skilful and penetrating”, whereas the Court of Appeal saw it as “overall unfair and at times bullying.”

 

6. Failure at a first appeal (here, to the High Court) should not discourage counsel from seeking leave for a second appeal (as here, where it seems counsel wasn’t even slightly discouraged) when the result seems wrong. Even when the Court grants leave on some points, a more fundamental point may be discovered in the actual hearing where the Court has the benefit of argument.

Sixteen!

This blog has now existed for sixteen years.

Longer than Prime Ministers, Presidents, and most Chief Justices. 

Longer than much of the relevant legislation.

Longer than most prison terms.

Longer than most people stay in the same job. 

Longer than most people stick with a hobby. 

Longer than most marriages.

And, one hopes, longer than the pandemic will be with us.

(This is not a poem.)

Law and precision

This, my 701^st post, is about authority and precision as aspects of the rule of law.

 

Borrowdale v Director-General of Health [2020] NZHC 2090 is about some official statements that were made in the earliest days of our Covid-19 lockdown.

 

Were these statements law?

 

The Director-General of Health had the power to make statements of law, but this power was given by (the then) legislation to him alone. The Prime Minister did not have that power, so statements she made at media briefings were not law. Nor were interpretations of the Director-General’s statements of law, issued by various officials.

 

Unfortunately, the Director-General did not initially realise that it was all up to him to make law. He apparently thought that his role was advisory and that the PM and the Minister of Health could issue statements that were legally binding.

 

This could be what led to the Director-General speaking in terms that any lawyer, and most people, would regard as imprecise. It also led to the PM speaking vaguely, issuing encouragements (which would have been appropriate) but couched in mandatory terms (which were unlawful). These caused people to confine themselves to contacts with only a few people in their “bubble”, thinking that doing so was a legal obligation.

 

The Full Court of the High Court held that the unlawfulness was justifiable. That apparently means that no one is liable for the unlawfulness. Fair enough, of course, since things were done under urgency and the first consideration was public safety.

 

The Court said (at [291]), “The rule of law requires that the law is accessible and, so far as possible, intelligible, clear and predictable.”

 

There is a distinction between stating the law and interpreting it, and this is illustrated by the Court’s upholding of the lawfulness of the Director-General’s order that all but “essential businesses” must close, because "essential businesses" was defined in that order in a way that was “clear and fixed” (at [279]), notwithstanding that the list of such businesses, prepared by other officials and published online, changed from time to time. The list was legitimate interpretation, an executive function. The definition was “certainly broad, but we think it has parameters and was capable of being given an ascertainable and reasonable meaning in any individual case” (at [276]).

 

You can see that this is a rather delicate matter. I remain concerned about the limitations on people’s right to exercise, and the vagueness of the current requirement that places of exercise must be “readily accessible” (see my update at the end of this post). A readily accessible distance to walk for an athletic person may not be for a sedentary enforcement official or a sedentary judge.

Furthermore (grrr...) today we had an example of official confusion of advice and order, in the Minister of Health’s 1.00pm media update on the crisis. 

 

He is reported to have said, “stay in your bubbles, don’t go out unless you have to, and please wear a mask if you do have to go out. As the weekend approaches, those rules still do apply.”

 

It’s the contradiction between “please” and “those rules”: do we have to wear a mask if we “have” to go out, and what sort of restriction is not going out unless we have to?

 

The Minister’s interpretation of his own order is not part of the order itself. If he wanted to include those restrictions, he should have put them in the order. That is the clarity that the rule of law requires. There is, currently, nothing in the order to require people who go out to wear masks. Plainly, it may well be good sense to do so, and that is all the more reason to put the requirement in the order and so to make it law.

 

And as for “don’t go out unless you have to”, this is not the law. The order permits going out for “essential personal movement”, which includes “limited recreational purposes”. In ordinary language, recreation for limited purposes is not something one has to do. Recreation is not compulsory, but it is permitted, despite the Minister’s comment suggesting there is a rule prohibiting it.

 

That this sort of bumbling obfuscation should have occurred the day after the Borrowdale decision was published – when it must have been fresh in the Minister’s mind – is most unfortunate.

Review: “Expert Evidence About Memory in New Zealand Sexual Violence Trials and Appellate Courts 2001 to 2020” by Suzanne Blackwell, Fred Seymour and Sarah Mandeno (June 2020).

This Report is essential reading for counsel who are considering calling expert psychological evidence with a view to challenging the accuracy of a complainant’s evidence in a sexual violence case. It is also essential reading for any psychologist who has to decide whether proposed testimony in such a case will withstand attack for scientific unsoundness.

 

Its survey of the scientific literature that has been cited by experts when providing evidence about why a complainant may be mistaken about a relevant matter in a sexual violence case may well leave the reader with the impression that such scientific experimentation that has been done is rudimentary, flawed, and of negligible real relevance to such cases.

 

For example, on the topic of eyewitness identification and transference, the authors point out that research on mistakes made involving perpetrators who are strangers to the complainant is misleading or plainly wrong if applied to a case where the defendant is well known to the complainant. Similarly, in relation to studies on the “post-event (mis)information effect”, where in laboratory studies participants are deliberately given misinformation about what happened to see how that impacted on their subsequent accounts. These have a relevance problem: they mostly involve misinformation about minor, unimportant or subtle details, not the major details of a traumatic experience, or they involve observations of an event, not participation in it. They do not, and of course ethically cannot, concern sexual violence committed on the subject of study. Nor is there current scientific literature on the relevance of a sexual violence complainant’s confidence in giving evidence to the accuracy of that evidence, and the accuracy-confidence question is not settled science.

 

Similarly, false memory implantation studies are generally so artificial as to have minimal relevance to cases of sexual violence. They may be of relatively innocuous events, or carried out on university students, or use degrees of suggestion or social persuasion that have no relevance in the circumstances of a trial. And where there has been an ongoing relationship between the complainant and the defendant, there appears to be no research on how that might have affected complainants’ memories of abuse.

 

This is not to say that everything is necessarily uncertain. The authors summarise points on which a general consensus been established (with inevitable case by case exceptions) about children’s memory reports and suggestibility, including the danger of suggestive questioning, the loss of peripheral detail when there is delay, and the loss of detail of each episode when abuse has extended over a long period. Importantly, the authors offer guidance on how to evaluate experimental studies on children’s memories of sexual abuse, and stress the need for expert witnesses citing scientific studies to express the uncertainties of such evidence. Experimental research “does not and cannot represent the complexity and severity of sexual abuse.” (p 127)

 

Briefs of evidence that have been used in the cases surveyed here have tended to cover standard topics, even when not relevant to the case in which they are intended to be used, they tend to speculate on things such as post-event misinformation and transference, citing research but omitting to repeat reservations that the researchers may have expressed, such as the doubtful relevance of experimental studies to sexual abuse cases, or not declaring when their opinion does not have consensus within the literature.

 

The importance of recognising the body of knowledge available to clinical psychologists is also discussed by the authors. I imagine they would have more experience with genuine victims of sexual abuse and violence, rather than with liars, so they would not be ersatz lie detectors. Just potential myth-dispellers. The authors’ aim is to enhance complainants’ access to justice, and it is to be hoped that the defence, prosecution and judicial participants in court process will benefit from this valuable resource.

Evidence that might be wrong

I found it unsettling to read of scepticism about the prospects of success on an appeal referred to the Court of Appeal after consideration, by a retired judge, of fresh evidence.

As the matter is to be before the Court of Appeal again I say no more about that case. In fact, I know no more about it than anyone who has looked at newspapers or listened to news reports on the radio.

How should a fact-finder, a judge or a jury, deal with the evidence of a witness who might be mistaken?

Many kinds of testimony have an inherent risk of being wrong through mistake.

Should this evidence be assessed by comparison with other evidence on the same point and then be accepted or rejected before all the evidence is considered as a whole? Or, should assessment of the risk of error be suspended until all the evidence has been given and a verdict has to be decided on?

The difference is that suspension of decision on risk of error prevents the fact-finder from forming a theory about the result before all the evidence has been given. A premature theory can bias the assessment of other evidence.

It is unsafe to assess a case as strong before all the evidence in the trial has been given. Nevertheless, we expect a prosecution case to appear strong before a trial, for we do not want people to be prosecuted on weak evidence.

Juries are routinely told by judges that they must suspend judgment until after they have heard all the evidence, the addresses by counsel and the instructions on the law from the judge.

But, and here there is a risk of error, juries are also told that they must, in looking at all the evidence, decide what they accept and what they reject, and then decide whether the evidence they accept is sufficient to prove the prosecutor’s case beyond reasonable doubt.

This suggests a two-step approach to the evidence as a whole. First is the filtering out of evidence that, on an overview, the fact-finder rejects because it must be wrong. For example, evidence of a cast-iron alibi may mean that an eyewitness identification of the defendant at the scene must be wrong. The eyewitness evidence does not, in those circumstances, carry a possibility that it may be right. Second, considering all the remaining evidence, some may obviously be right, for example because there was no dispute about it, and some may most likely be right but with a smaller possibility that it is wrong. This sort of evidence is not taken on an all-or-nothing basis because the possibility of it being wrong is relevant to its probative value and to whether on the whole of the evidence there is a reasonable doubt about the defendant’s guilt.

I wouldn’t be as sceptical as the folk mentioned in the news report cited above. Judges are, in my experience of over 40 years of looking at them, fiercely independent-minded people. Any barrister who has struggled to get a judge to follow precedent will agree. Being trained as lawyers, they take pleasure in arguing, and they certainly don’t expect their opinions to be automatically accepted just because they are judges or retired judges. Their overriding concern is to make the law work rationally and justly.

Unable to prevent injustice?

Our little nation (or as we call it in pandemic times, our team of five million) was agog with disbelief today at news of an injustice that the courts could not correct: Fitzgerald v R [2020] NZCA 292.

Our “three strikes” legislation required the court to impose the maximum term of imprisonment available on the defendant. In a Wellington street he had kissed a stranger on the cheek and had assaulted her companion. While the victims no doubt experienced some trauma, they may not have known that Mr Fitzgerald was mentally disabled.

The offences themselves would have not warranted terms of imprisonment. It was only Mr Fitzgerald’s record of more serious sexual offending that set him up for the maximum penalty for what he was charged with. Seven years’ imprisonment.

All four of the judges involved – the sentencing judge and the three Court of Appeal justices – agreed that the result was manifestly unjust. The one Court of Appeal justice who dissented insofar as he found an interpretive solution laid the ground for an application for leave to appeal to the Supreme Court.

Amazingly, it took the Court of Appeal 10 months from the hearing to deliver its judgments.

Apart from wrangling over whether a discharge without conviction can be ordered when a sentence is compelled by statute (and one has to wonder why “minimum” and “maximum” were thought to mean the same thing, and in any event they were irrelevant as here the penalty was fixed), the question is naturally raised: could there be some alternative way of avoiding the injustice?

In the circumstances, charges of offensive behaviour were available, or even just two charges of common assault (this was the charge he faced in respect of the second victim). Maximum penalties of $1000 fine, or 1 year in prison respectively.

Was the decision about what charges to bring against Mr Fitzgerald made reasonably? Judicial review of charging decisions is available, and the issue in such proceedings would be whether prosecution for the particular charges that were filed was in the public interest. Plainly, the judges here must have had doubts about that, in view of the inevitable penalty upon conviction. The prosecutor, when deciding what charges to file, should be guided by the seriousness of what the defendant actually did, not the seriousness of the most serious charge that could be filed. The seriousness of what the defendant actually did should be assessed by the likely starting point for sentencing. Here it is clear that a fine or a community based sentence would have been an appropriate measure of the seriousness of the defendant's conduct.

What, though, if it is now too late to review the decision on choice of charges?

The only other “thinking outside the box” remedy that occurs to me at the moment is the stay of proceedings. For this, the Court would have to be satisfied that continuation of the proceedings would undermine public confidence in the integrity of the judicial process. Does judicial paralysis in the face of an unjust result undermine public confidence in the integrity of the judicial process? Finding itself faced with having to impose a manifestly unjust sentence, a court might consider whether to stay the proceedings before that point, even, perhaps, without prejudice to the filing of lesser charges or the addition of lesser charges to the charge list, or the substitution of convictions for lesser offences.

See Osborne v Worksafe New Zealand [2017] NZCA 11 at [36].

Still, the case may not be over, so I say no more.

Update: the Supreme Court granted leave to appeal: Fitzgerald v R [2020] NZSC 119 (3 November 2020), and allowed the appeal: Fitzgerald v R [2021] NZSC 131 (7 October 2021), noted here. The High Court, holding that the decision to prosecute the serious charge was a breach of Mr Fitzgerald's right to be free from grossly disproportionate punishment and awarded him compensation: Fitzgerald v Attorney-General [2022] NZHC 2465 (27 September 2022).