Arbitrary detention, right to legal advice, a 5-4 split on final appeal: R v Lafrance, 2022 SCC 32

The first thing that strikes one on reading R v Lafrance, 2022 SCC 32 (22 July 2022), is that the Supreme Court of Canada was divided 5-4. This difference of opinion between the two judgments centred on evaluating the evidence on the issues of detention and access to counsel. The majority held that the Charter rights had been breached and on application of the balancing exercise set out in R v Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 the evidence was inadmissible. The minority found no Charter breaches and so did not need to consider the balancing exercise.

My impression is that this difference in evaluation of the evidence is illustrative of the inappropriateness, in the different context of appeals against conviction, of allowing appellate judges to act as juries. But don’t get me started on that topic.

More positively, or just positively, the majority in Lafrance set out at [90] the current approach to the balancing exercise in Grant. I have previously, and somewhat sarcastically, suggested that the original description of the process as a “decision tree” would be more appropriately put as an “impenetrable thicket”. But it seems that the thicket has been given the severe pruning it so richly deserved, a development going back at least as far as R v Le, 2019 SCC 34.

As you can see, in deciding whether or not admission of the evidence would bring the administration of justice into disrepute, the seriousness of the impropriety and its impact on the defendant’s rights are assessed cumulatively, and then weighed against society’s interests in adjudication of the case on its merits.

This admirably clear decision process is comparable to that which is set out in case law interpreting New Zealand’s s 30 of the Evidence Act 2006.

Truth-seeking? R v J.J., 2022 SCC 28

I don’t know how well the person who determines the wording of Canada’s federal laws speaks English. Look at this:

“(3) The judge shall, as soon as feasible, inform the complainant who participates in the hearing of their right to be represented by counsel.”

“Their” right? Why not say “the” right? Gratuitously bunging in unnecessary pronouns is surely one of the more shameful habits that can be picked up at university.

The provision I quoted is part of s 278.94 of the Criminal Code, so the Supreme Court of Canada is not entirely to blame for adopting this ugly usage in R v J.J., 2022 SCC 28 (June 30, 2022).

The case is of limited interest to those who are not subject to the law of Canada, but there are some points that catch one’s attention.

The Court follows its long-established practice of referring to a criminal trial as a “search for truth” (at [1]). Is this accurate? A commission of inquiry is a search for truth. A police investigation should be a search for truth. But a criminal trial is a test of the prosecution’s case as measured against the high standard of proof. Consequently, an acquittal is not a declaration of innocence. An acquittal is not a finding of truth. So, calling a criminal trial a search for truth is, to say the least, misleading.

The idea of the trial as a search for truth goes back to R v Mills, 1990 CanLII 135 (SCC) at [73]-[74], giving this as an example of a “principle of fundamental justice” which may embrace interests and perspectives beyond those of the defendant. It is “society’s interest in having the trial process arrive at the truth.” This, in my view, is a poorly examined concept.

And at [2] the majority judgment refers to the “bleak picture” painted by accounts of the experiences of complainants in trials of a sexual nature and the tendency of victims not to report such crimes. Parliament has made procedural reforms to address this, but, the majority say, “More needs to be done.” It is unusual for judges to comment on legislative policy in this way, and it may give some readers the impression that now the Court is going to do what it can to help with the task, instead of addressing the constitutionality of the legislation in an unbiased way.

Another attention-catching point is the habit in Canadian jurisprudence of treating the requirement that a trial must be fair as meaning that it must be fair to all concerned: the defendant, the prosecution, witnesses, and the community (at [2], [125]). And why not throw in anyone else you can think of. This is, in non-Canadian terms, nonsense. A criminal trial must be fair to the defendant. It is the defendant who has the right to a fair trial. This is an absolute right. However, there may be procedural constituents of that right (for example, the right to confront witnesses for the prosecution) that can be subject to some limitation without compromise to the absolute nature of the defendant’s right to a fair trial. A witness may be screened from the defendant, or may give evidence remotely by video link, or may - within very circumscribed limits - give evidence anonymously, without affecting the defendant’s ability to cross-examine the witness.

While I agree with the majority judgment, I must admit that I find parts of it incredible. The suggestion that a witness (here, complainant) will not be tainted by disclosure of a tactic that will be used as a challenge to credibility at trial (at [186]-[187}), is optimistic. And the conclusory opinion, at [186], that “ambush” is not an effective weapon is contrary to common sense and experience. By including these points the majority is over-stating its case.

Even so, apart from these quirks, the majority judgment is persuasive. It has the excellent quality of addressing the concerns expressed by the dissenting judges. It is persuasive because the sort of evidence that the legislation deals with is (a) only rarely going to be available to the defendant, and (b) it would, in any event, be subject to the basic rules of evidence concerning relevance and the need for it not to have an improperly prejudicial effect on the proceeding. And it should come as no surprise to a complainant that the defendant has the relevant record, and that the defendant might seek to use it at trial, so pre-trial announcement of that intention is unlikely to damage the defence.

Pre-trial disclosure of the defence position may take some of the drama out of the trial. In Auckland a few years ago (actually, a good few years ago) in a rape trial the defendant had - most wisely as it turned out - made a secret video recording of the events which all occurred in his bedroom. The complainant wasn’t aware of this and at trial gave a convincing account of having been raped, but when confronted with the recording in cross-examination, her claim of lack of consent was shown, when the recording was played, to be plainly absurd.

Quite possibly, such a video recording would be outside the definition of record in this legislation (see [55]), and therefore would remain admissible subject to the basic requirements of relevance and absence of improper prejudice, but the point is that the law should be hesitant to restrict cross-examination of complainants on matters such as whether there was an actus reus and whether there were reasonable grounds for absence of mens rea.

Prosecutor's fallacy and conditional probability reasoning: R v Lyttle [2022] NZCA 52

The prosecutor’s fallacy is an error in reasoning that can be very difficult to notice. It came to attention recently in what is now our leading case on costs in criminal cases: R v Lyttle [2022] NZCA 52.

The Court dealt with appeals from three separate trials, and the one relevant here is R v S, the discussion of which begins at [105].

The issue was whether injuries had been caused by assault or by accident.

There was no evidence indicating guilt other than expert medical opinion evidence. The Crown called five experts, the defence two.

Inevitably, the experts’ evidence was all based on studies of similar injuries where the causes were known [165].

Usually, experts give their evidence in the form of a likelihood ratio: for example, the injuries are much more likely to have been caused by assault than by accident. The cases for the prosecution and the defence in the trial are compared in that way.

Although it is not obvious here, it seems that the experts, as summarised from [116], were in effect saying (for the Crown): the injuries here were very much more likely to have been caused by assault than by accident.

In calling attention to the prosecutor’s fallacy, the Court was in effect saying that the probability of seeing the injuries if they were caused by assault is not the same as the probability of assault, given the injuries.

That indeed is so, as is obvious if we consider a simple example of the same error: the probability of seeing that an animal has four legs, given that it is a sheep, is not the same as the probability of  seeing that an animal is a sheep, given that it has four legs.

There are two separate things under examination in these cases: injuries by assault and injuries by accident; sheep and quadrupeds.

The seriousness of this error depends on context. If you are talking about all the sheep and all the quadrupeds in the world, it is a very serious error. But if you mean just those sheep and those chickens in that field, the error will not matter.  If the context tends to exclude innocent explanations it is like the field, but with greater recognition of innocent explanations it becomes more like the world. In a trial the context of the case provides what can be called the prior probabilities of guilt and innocence.

In R v S the context was that of a situation where accidental fall was possible, and where the defendant was of good character, well spoken of as a caring person, and a person of whom months of covert audio surveillance after the event revealed nothing to raise any suspicion.

If we pretend that the combined likelihood ratios of the experts' evidence strongly favoured guilt, say only one chance in a hundred of innocence, that would in mathematical terms be 99 to 1. But without any other evidence of guilt, and to the contrary, every indication of innocence, the prior likelihood of guilt may be 1 in 99.

Combined, the priors and the likelihood ratio on these hypothetical figures would be 1. This is the ratio of the probability, on all the evidence in the case, of guilt to the probability on the same evidence of innocence. This means a one in two probability of guilt, or 0.5, which is not enough to meet the criminal standard of proof. Nor even the civil standard, which requires more than 0.5.

At [166] the Court summarised the approach that the prosecutor had suggested at trial. This seems to have involved the sheep/quadruped fallacy: a low probability of getting the evidence of the injuries if the defendant was innocent does not in context mean a low probability of innocence given the evidence of injuries.

All the evidence in combination had to be considered when assessing the likelihood of guilt.

One lesson of the appeal in R v S is that lawyers need to be trained in reasoning with conditional probabilities. The major hurdle is that people who become lawyers have mostly been taught at an impressionable age that they are no good at maths. People who become lawyers do, however, tend to be good at logical reasoning, so let’s not despair.

Another lesson is that rare events happen, and apparently overwhelming statistical evidence is only about probabilities, not about the actuality in a particular case. This seems to be the point that was made by the witness whose comment is noted at [127]. Indeed, in law facts are only ever established to some degree of probability, expressed in words as on the balance of probabilities or beyond reasonable doubt.

The jury in R v S were unable to agree on a verdict, and the Crown elected not to seek a retrial, as noted at [112], so the charge (manslaughter) was dismissed, which is equivalent to an acquittal.

If you are interested in this sort of thing, there is more on this site: just enter "Bayes" in the search box.

Overruling "final" decisions: Chandler v The State (Trinidad and Tobago) No 2) [2022] UKPC 19

You can’t read Chandler v The State (Trinidad and Tobago) (No 2) [2022] UKPC 19 without thinking of the anticipated overruling by the Supreme Court of the United States of Roe v Wade.

When will a court of final appeal overrule its own earlier decision, particularly on a point of constitutional interpretation?

The Board addressed the jurisprudence on this at [55]-[66]. The main points are:

Strong reasons for departure from the earlier decision are needed [56].

Stare decisis requires the greatest of hesitation before re-opening the issue; the earlier decision must be shown to have been wrong and lacking a sufficient foundation [57].

As the SCOTUS has said, a special reason for departure is needed, beyond a mere belief that the earlier decision was wrong [58].

It is necessary to avoid damage to the rule of law [58].

Something more than simply thinking the earlier decision was wrong is needed: for example it may have hampered the proper development of the law or distorted the law by being in conflict with established legal principles or by having to be distinguished in subsequent cases to such an extent that the law is uncertain [59].

There needs to have been a material change in circumstances since the earlier decision [60].

Where the court interpreted legislation, it will be more appropriate for the legislature to make the change, in contrast to common law which is more appropriately left to judges to change (citing Posner) [61].

The fact that the earlier decision was that of a mere majority does not weaken it, because the law has to have some way of resolving differences between judges [63].

Stare decisis promotes certainty, predictability, planning and the giving of legal advice [64].

As Lon L Fuller said, a system of legal rules has eight “desiderata”, relevantly here - retroactive laws should be avoided, legal rules should be clear, there should be a constancy of law through time, there should be correct administration of law [66].

 I add this: Another thing lawyers can’t help thinking about in this context is the difference between the internal and the external morality of law. If conformity with the requirements of the rule of law is a matter of the internal morality of the law, does such conformity tend to serve the requirements of external morality too? The (sadly, late) Professor of Jurisprudence at Oxford, John Gardner, considered this in his Law as a Leap of Faith (2012, OUP) Chapter 8, where at 220 he concludes, “Fuller is no legalist but he is surely, on this front, a bit of a quietist. He encourages lawyers to think that they are already doing their bit, qua lawyers, to save us from the abyss so long as they are upholding the rule of law. But there is always more, and sometimes more important, work to do.”

Judicial responses to rights-infringing legislation: Brown v R, 2022 SCC 18

In Brown v R, 2022 SCC 18 (May 13, 2022) the Supreme Court of Canada declared  unconstitutional, and of no force or effect, s 33.1 of the Criminal Code.

The effect of s 33.1 was to remove a defence of automatism to crimes of general intent.

This provision was contrary to the principles of fundamental justice in that it allowed criminal liability for acts that were not voluntary. This infringed s 7 of the Canadian Charter of Rights and Freedoms. It also breached the presumption of innocence by replacing the prosecution’s obligation to prove mens rea with mere proof of intoxication. This infringed s 11(d) of the Charter.

On the critical question of whether the limits on rights imposed by s 33.1 were justified in a free and democratic society under s 1 of the Charter, the Court held that, while there was a rational connection between s 33.1 and Parliament’s purpose, the impairment of rights was not minimal because alternative means of achieving the purpose could be devised. The benefits of s 33.1 were outweighed by its negative effects: the risk of wrongful conviction, the failure to distinguish between grades of moral culpability, and the disproportionate punishment that would have to be imposed.

In a companion judgment delivered the same day, two Crown appeals were dismissed because of the invalidity of s 33.1: R v Sullivan, 2022 SCC 19. This judgment addresses stare decisis issues, particularly horizontal stare decisis: when a court is bound to follow a decision of a court at the same level in the hierarchy in the same Province.

The power to declare statutory provisions unconstitutional is in s 52(1) of the Constitution Act, 1982, which states: “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”

In New Zealand we don’t have a provision corresponding to s 52(1). Our courts have no power to declare a parliamentary enactment to be of no force or effect. We do have an equivalent of s 1 of the Charter. This is s 5 of the New Zealand Bill of Rights Act 1990 (NZBORA).

However, our Supreme Court has held that there is a power to make a declaration of inconsistency with NZBORA: Attorney-General v Taylor [2018] NZSC 104 per Glazebrook and Ellen France JJ at [65], Elias CJ at [74], (William Young and O’Regan JJ dissenting at [122]).

What should be the consequences of such a declaration? These are still to be worked out.

Possibilities are the taking into account of a declaration as a mitigating factor when determining an appropriate sentence, or when deciding whether to discharge an offender without conviction. Where a provision unjustifiably limits the right to be presumed innocent and the right to a fair trial, dismissal of a charge at trial or quashing a conviction on appeal should be appropriate. As we say these days, the consequences of a declaration of inconsistency will probably be contextual and evaluative judgement will be necessary.

Unfair trial or not unfair trial? Hewey v R (Bermuda) [2022] UKPC 12

Was the trial that was the subject of the appeal in Hewey v R (Bermuda) [2022] UKPC 12 unfair?

The judge’s summing up to the jury had not been a “model” of fairness and clarity (at [47]).

If that lack of fairness and clarity made the trial unfair, why did the Board not say that there was no question of applying the proviso? [1] Instead, the Board was merely “unable to conclude with confidence” that there had been no substantial miscarriage of justice (at [52]).

The lack of fairness involved exaggerating the probative value of prosecution evidence concerning particles that were alleged to have been gunshot residue, and reversal of the burden of proof by pointing out that the defendants had not provided any explanation for the presence of the particles (at [39]).

The issue was the identity of the driver of a motorcycle when its pillion passenger shot the victim. The particle evidence was allegedly physical evidence linking the appellant to the scene of the firing of the gun. Eyewitness evidence was challenged as unreliable, and the role of the particle evidence was to support the eyewitness. It was, in that context, of central importance.

Arguably, the two errors should have made the trial unfair, rather than simply being incidents of erroneous comments in the summing up. But alternatively, was this trial one where the departure from good practice was not so gross, persistent or prejudicial that the Board had no choice but to quash the appellant’s conviction?

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[1] Randall v R (Cayman Islands) [2002] UKPC 19, [2002] 2 Cr App R 17 per Lord Bingham at [28], saying that the question is whether “the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty.”

A lawful but contextually unreasonable search: R v Tim, 2022 SCC 12

For an example of circumstances where a lawful search was in breach of the defendant’s right not to be unreasonably searched, see R v Tim, 2022 SCC 12. Two unlawful searches, of the defendant and his car, were followed by a third, which was lawful but in breach of Mr Tim’s Charter rights, in particular the right to be secure against unreasonable search or seizure (clause 8); bringing into play consideration of the remedy of inadmissibility in clause 24(2).

Here, the third search was in breach because of its close temporal and contextual association with the unlawful searches (at [80]).

This was different, on the facts, from a causal connection with the unlawful searches. For readers in New Zealand, s 30 of the Evidence Act 2006 is the governing provision on admissibility of improperly obtained evidence in criminal cases. It sets out law which is not hugely different in its results from Canadian law on the point. Subsection (5) defines when evidence is improperly obtained, and its use of the words “obtained” and “in consequence” raises the question of whether a causal connection between the impropriety and the finding of the evidence is required.

Our courts have recognised that causation is not always necessary, as for example where a confessional statement is obtained from the defendant but after that the procedural error occurs of failing to get the defendant to read it through and to make any corrections before signing it. The statement can be held to have been improperly obtained. See Denney v R [2017] NZCA 80 at [31].

Political laughter at law: extradition, risk of torture and trial unfairness, and Minister of Justice v Kim [2022] NZSC 44

I must admit that I had a good laugh at the brilliant cartoon by the gifted Sharon Murdoch, published yesterday in Stuff (see the cartoon dated April 17, 2022 at https://www.stuff.co.nz/opinion/94869389/sharon-murdoch-cartoons ).

The Kim case has been slowly reaching its climax in New Zealand, and I have commented on it before, on June 12, 2019. Our Supreme Court’s latest judgment in the case is Minister of Justice v Kim [2022] NZSC 44 (13 April 2022). I will call this the second decision.

Just as with law cases, there is always another side to the story in political commentary. One may disagree with the Court’s decision if one looks at it from a political point of view, while agreeing with it from a legal point of view.

On the torture point, the legal question was whether there was a reasonable basis upon which the Minister of Justice could be satisfied that there was no real risk that Mr Kim would be subject to an act of torture if extradited to the PRC.

There were several reasons for the Court’s conclusion in its second decision that such a reasonable basis existed. The case is an ordinary one with no political importance to the PRC. Why, in other words, would the PRC authorities have resort to torture? Further, the investigation of the case in China had progressed to an advanced stage, so again, why resort to torture? And the trial would not be in a part of China where the authorities had a reputation for torturing criminal suspects. And, although an ordinary case, this one has attracted a good deal of international attention because it could be a precedent on the safety of extradition to the PRC. So, with everyone watching, why resort to torture if that would create difficulties in future cases? Here, torture would be irrational, so that there was a reasonable basis for the Minister to accept the assurances that had been obtained from the PRC (since the Court’s previous judgment in this case) and to conclude that there was no real risk that Mr Kim would be tortured.

So the legal decision on this point was sound. The Court was not making a political decision.

As to fair trial, again the decision is particular to the circumstances of this case and the particular assurances offered. Is there a real risk that the trial would fall below the requirements contained in Article 14 of the ICCPR? These are minimum requirements, designed to accommodate different legal systems. But still, the question is particular to the individual trial under consideration. And the right to a fair trial is not to be balanced against a public interest in extradition, as the Court noted in [281] of its first decision in this case. (The right not to be tortured is also an absolute right, and I have reservations about the Court's inclusion of references to other interests in [40] of the second decision.) The issue is minimum standards, not best practice. Have assurances removed a real risk that the trial would be unfair? Together with assurances received from the PRC about trial procedure, the Minister could also consider the opportunities that would be given for monitoring of the trial by New Zealand officials (see [297] of the first decision). Diplomatic assurances between states provided in good faith amount to moral and political obligations on the state providing them (see [257]-[260] of the first decision). Such assurances as to trial fairness could be relied on for similar reasons that the assurances as to absence of torture could be relied on.

The issue came down to whether the Court, assessing the extent of the assurances given by the PRC about the fairness of the proposed trial, could conclude that those assurances did indeed cover the minimum standards required by the ICCPR, and that they did provide a reasonable basis for concluding that the trial of Mr Kim would be fair in that sense. There was no credible evidence, specific enough to be relevant here, to suggest the contrary.

True, cartoonists may have their own evidence about other cases, but apparently not about this one.

Proximity and fishing in safety searches upon arrest: R v Stairs, 2022 SCC 11

Attempts to codify the law - that is, to capture the whole of the law on a given subject in a statute so that it is not necessary to refer to sources outside the statute to ascertain what the law is, except that judicial decisions may explain how the statute applies in particular circumstances - usually fail.

Some people thought that our Search and Surveillance Act 2012 codified the law relating to that subject, and indeed it does have a comprehensive feel about it. But, as a recent case from the Supreme Court of Canada illustrates, not everything is covered.

On arresting a person, an officer may search that person for anything that could be used to cause harm to anyone or to facilitate the person’s escape: s 85. Let’s call that a safety search, There doesn’t seem to be any provision concerning a safety search of the arrested person’s immediate vicinity.

The Canadian case, R v Stairs, 2022 SCC 11, addresses the power of safety search where the arrest is carried out at the person’s residence. To what extent can a safety search occur - in the same room, or beyond that in another room in the residence? For example, the person may be arrested in a bedroom, but then may need to use the toilet. Or the arrested person may need to be escorted through the kitchen, a room that is normally full of potential weapons.

Under s 85 a safety search does not require any grounds: there is no need for the officer to have reasonable grounds to suspect that the arrested person is carrying any of the sorts of items covered by the section. As long as the arrest is lawful, and the search is carried out for the purpose of locating such items, and it is carried out in accordance with the actions described in the section, it will be lawful.

Some searches do require grounds, and these can be one of two kinds: where the officer has reasonable grounds to suspect that the items of the kind described in the search power will be found, and those where the officer has reasonable grounds to believe that such items will be found. The thresholds for lawfulness in this respect can be either suspicion or belief. The statute will say which applies. We are concerned with warrantless searches here, and when these require grounds, the threshold of belief applies.

For example, s 83, referring to warrantless search of a place for evidential material relating to an offence for which the person has been arrested, requires reasonable grounds to believe the specified things. The same threshold applies to search of a vehicle: s 84. Similarly, the threshold of belief applies to the more extensive search of an arrested person pursuant to s 88.

In Stairs, the common law equivalent of our s 85 is described at [34], although it is wider than our s 85 insofar as it includes search for evidence of the arrest offence in addition to safety items. Also, there is a third, and lowest, threshold: there must be some reasonable basis for the officers action, that is, it must in the circumstances seem reasonable to check for safety items: [37]-[38].

In the context of constitutionally protected rights, a balancing of privacy and police objectives for safety searches of a home was necessary: [55]. For arrests that occur in the arrested person's home, distinctions are drawn between areas of the residence that are within the physical control of the arrested person, for which the common law standard applies; those which are proximate to the arrest, a contextual and case-specific inquiry: [60]-[61], for which the threshold is reasonable suspicion [66] (applying Chehil, discussed by me here on 3 October 2013), [82]; and those in more remote areas which, without a warrant, are prima facie unreasonable: [50].

So, some potentially useful gap-filling to which our courts may have occasion to refer. But an important consideration will be whether the omission of the kinds of search mentioned in Stairs from the New Zealand legislation was deliberate. The Law Commission’s report Search and Surveillance Powers, R97 (29 June 2007) at [5.30] significantly rejected a power to search beyond the person of the arrestee:

“ … a vast array of items in any home could cause harm or facilitate escape, ranging from wine bottles to keys to cutlery. To allow an incidental search for these purposes is in effect to authorise a fishing expedition (no matter how narrowly defined in terms of proximity to the exact place of the person’s arrest), because it would authorise looking for virtually anything.”

Witness credibility, absence of cross-examination, and trial fairness: R v Samaniego, 2022 SCC 9

Reading R v Samaniego, 2022 SCC 9 (March 25, 2022), and its excellent summary by Henna Mohan at thecourt.ca , might leave you wondering about the extent to which defence counsel has a duty to obfuscate evidence tendered by the prosecutor.

First, some general observations will occur to readers in relation to the role of defence counsel in a trial.

All counsel have a duty not to mislead the court, but this does not mean that defence counsel must assist the court to recognise the truth of the prosecutor’s evidence. Not misleading  the court has a narrow meaning: not knowingly stating facts or points of law incorrectly; not suggesting something for which counsel has no proper grounds; not departing from the client’s instructions in order to present a better defence on invented facts. Given that counsel would recognise the impropriety of doing those things, the primary duty to the client does not detract from the duty to the court.

If, in cross-examination, defence counsel can make a witness’s testimony less clear or less intelligible than it appeared at first, counsel for the prosecution will have the opportunity to re-examine the witness and seek to restore clarity and intelligibility. It is, given that, not improper for defence counsel to attempt to “muddy the waters” in the interests of the client.

All this must be done within the confines of fairness, and that is a matter for the trial judge. Powers to exercise this sort of control may be statutory (for example in New Zealand we have s 85 of the Evidence Act 2006). Essentially, questions that are “improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand” must not be allowed.

Where the defence strategy is to obfuscate prosecution evidence, that must therefore, on this statutory formulation, be done without improper, unfair, misleading or needlessly repetitive questioning, and without using language that is too complicated for the witness to understand.

The exercise of judicial control over the questioning of witnesses is called, in Samaniego, an aspect of trial management.

Some questions must be disallowed if they seek to introduce inadmissible evidence, and that is a matter of law, not of trial management. The majority judgment at [25] sets out the different approaches on appeal to evidential rulings and to trial management decisions:

“Trial management decisions and the rules of evidence must generally remain separate issues on appellate review. The standard of review for evidentiary errors is correctness, while deference is owed to trial management decisions. Extricable evidentiary errors are held to a more stringent standard of review than trial management decisions. The trial management power is not a license to exclude otherwise relevant and material evidence in the name of efficiency.”

Experienced barristers will have noticed that the very best cross-examination is brief and to the point. Of course there may be exceptions to this, for example where a witness’s evidence has covered numerous topics, each of which contains material that has to be challenged. And there may be cases where aspects of a witness’s character that could impinge on the accuracy of testimony need to be exposed by careful probing. But generally, brevity is best.

“The art and skill of advocacy is ‘a highly refined one whose very best practitioners may manage to persuade in the face of facts…’ ” [ L. Zedner Criminal Justice (Oxford University Press, 2004) at p. 169, cited in Edward Johnston, “The Defence Lawyer in the Modern Era” at p 35]. 

If I were to criticise Samaniego, I would say this. We may wonder whether the Canadian appellate courts’ tendency to resort to deference is really appropriate. Deference is a weakness in appellate powers. To decline to review a decision, saying that the decider was in a better position to make the decision, is to deny a right of appeal. This has crept into the posited distinction between decisions of law and decisions concerning case management. Is this a material distinction? As indicated above, in New Zealand this sort of case management, determining what questions are allowed, is a part of the law of evidence, and is certainly not a discretionary matter (as the word “must” in s 85 indicates). Again, the Canadian courts in this regard seem to be withdrawing from their appellate role and denying rights of appeal.

Regardless of who caused the error in this trial, there was a failure to cross-examine on a matter directly relevant to the credibility of the only witness who gave evidence on the sole issue in the case. This amounted to a denial of the fundamental right to challenge evidence adduced by the prosecutor. It was a fundamental failure of trial process, and regardless of the likely effect of the error on the outcome of the trial, there had not been a fair trial and a new trial should have been ordered. It was wrong of the majority to say, at [35]-[36], on appeal we don’t consider what better decisions may have been made by counsel. That is another denial of appeal process. Case management should require trial judges to ensure trials are fair, and it seems odd that if a judge realised that counsel was making a mistake (here, thinking an inconsistency occurred between the witness’s second and third statements, when in fact the inconsistency was between those two and the first statement), the judge could simply keep quiet and let the error amplify, and that appellate judges could treat it as an error that was inconsequential.

I don’t ignore the apparently persuasive aspects of the majority judgment. But consider how a juror might have reacted had the witness’s inconsistencies been exposed. The witness identified in his second and third statements who had the gun initially, but in a first statement the witness didn’t know who had the gun initially. Is the witness a careful person who speaks with precision? Is the witness’s subsequent account an innocent invention? How reliable is the witness’s memory? Why did the statement change? Can we be sure the witness is accurate now?

So, while it is tempting to say that this is one of those rare cases where absence of cross-examination in relation to credibility did not prevent the appeal court from correctly deciding that the witness’s trial evidence was credible to the criminal standard of proof, in the context of the admitted animosity of the witness towards the appellant (in contrast to the admitted friendship between the witness and the co-defendant), there must, in my respectful opinion, be a reasonable doubt and the appeal should have been allowed, perhaps with a retrial being ordered.

There is nothing unusual about having strong dissenting judgments in final appeals. Law is just a numbers game. [1]

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[1] I must admit I thought I was being a bit cheeky in saying this, but later I came across this: "...In Fitzleet Estates Lord Wilberforce explained (p 1349) that doubtful issues have to be resolved and “the law knows no better way of resolving them than by the considered majority of the ultimate tribunal”. ": Chandler v The State (No 2) (Trinidad and Tobago) [2022] UKPC 19 (16 May 2022) at [63].

Statutory interpretation, extraneous materials, the rule of lenity: Wooden v United States No 20-5279, March 7, 2022

Judicial approaches to statutory interpretation can be contentious, even among judges of a final appellate court.

This is illustrated in a recent decision of the Supreme Court of the United States, Wooden v United States, No 20-5279, March 7, 2022.

Here, the phrase “committed on occasions different from one another”, used in relation to a series of offences, was said to be ambiguous when applied to ten burglaries committed by Mr Wooden when he had entered a storage facility on one evening (some two decades ago) and had stolen items from ten different units in that building.

The penalty for which he had been sentenced on the present occasion turned on the number of his previous convictions.

Obviously, the burglaries were not committed simultaneously, but were they committed on different occasions?

One thing courts sometimes do in cases of statutory ambiguity is to have a look at what the legislators were considering and saying when the legislation was proposed.

Is that passing the buck? Should the judicial branch call in the aid of legislators in that way? In this case, Barrett J cautions against judicial resort to extraneous materials: “I would impute to Congress only what can fairly be imputed to it: the words of the statute.”

The ordinary meaning of “occasion” applied here led to the conclusion that the ten burglaries were indeed committed on the one occasion.

But if there had been ambiguity, how should that be resolved? Gorsuch J considers in some detail the “rule of lenity”, which is (here) that an interpretation favourable to a defendant in a criminal case should be preferred. This rule should be applied once ambiguity is identified.

However, Kavanaugh J, criticises Gorsuch J’s reference to the rule of lenity, saying that it should only be applied as a last resort, because there are other interpretive techniques (such as, in contexts other than the present, the presumption of mens rea) that can be used to address ambiguity. This means that the rule of lenity will “rarely if ever” have a role.

In Wooden the Court was unanimous as to the reversal of the decision of the Court of Appeals for the Sixth Circuit.

I have previously referred to cases on the rule of lenity: here, and here.

Waving the flag: Pwr v DPP [2022] UKSC 2

Flag waving during a demonstration in public in central London was an offence in Pwr v DPP [2022] UKSC 2 (26 January 2022).

Legislation, described at [2], made it an offence for a person to carry or display an article in a public place “in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”. The offence is summary only and the maximum penalty is six months’ imprisonment.

Apart from the carrying or displaying having to be done knowingly, which was not in issue here, the prosecutor did not have to prove that the defendants (appellants) intended to arouse the necessary suspicion required for the actus reus.

The judgment illustrates the established approach to statutory interpretation in determining whether an offence is one of strict liability, applying it here to the language of the provision, the statutory context, and the purpose of the provision creating the offence.

Here, if mens rea was required, what would it be? Answering that was a task of “immense difficulty” [37].

A second aspect of the decision is determination of compliance with the law on limitation of the right of free speech. The decision involved consideration of factors (which were not criteria) and their interrelationship in the context of the circumstances of the case. It was not necessary for the defendants to have incited violence before the specific limitation on their flag-waving created by the relevant offence was justified.

How delightful it was to see Smith and Hogan, Criminal Law, 5th and 6th eds referred to at [51]. I can report that the passage quoted there also occurs in my older copy (I have it before me now), the 4th ed (1978) at p 816, discussing s 2(1) of the Prevention of Terrorism (Temporary Provisions) Act 1976.

Also delightful to see Sweet v Parsley [1970] AC 132 cited [29]. Almost makes one nostalgic for law school. Not quite, though.

Mistakes that are not innocent mistakes: Bell v Tasmania [2021] HCA 42

Criminal responsibility is not usually imposed on people who are in no way morally blameworthy. At least, that is so for serious crimes as opposed to purely regulatory offences. There may be some vagueness over where the boundary is there. And, notoriously, at the opposite extreme, opinions may differ over what can reasonably be required of people who are subject to great levels of stress, such as shipwreck survivors who kill and eat a moribund occupant of their lifeboat.[1]

Mistakes may be made by a person who performs acts that constitute the physical elements of an offence. Some of these mistakes may amount to a denial of the mental elements necessary for criminal responsibility (we call those the mens rea elements). There is nothing controversial about that, as long as the mistake is about fact and not about the law defining the offence. But, sometimes a mistake may be made about some material circumstance (that is, a physical element of the offence, but one that does not engage a mental element), and it may raise a question as to whether it is right to impose criminal liability.

What would the conditions be for an acceptable exculpatory mistake about such a circumstance? Honesty and reasonableness seem to be obvious requirements: the mistake should be one that a reasonable person would have made, and it should have been made honestly, in good faith.[2]

The excuse[3] of mistake was discussed in Bell v Tasmania [2021] HCA 42 (8 December 2021). Here the emphasis was on another aspect of acceptable mistakes: they must be about the “innocence” of the conduct.

The offence here was supplying a controlled drug to a child, and a child was defined as a person under the age of 18 years.

The defendant (appellant) had injected a person with methamphetamine, thinking that the person was over that age.

Supplying the drug to another person was, and is, a separate offence. The mistaken belief, even if it had been honestly and reasonably held, was not an innocent belief: it was belief that another offence was being committed.

The appeal was unanimously dismissed.

Kiefel CJ and Bell J at [9] mentioned historical concerns over the acceptability of a gap between moral culpability and criminal responsibility, and at [12] the common law criterion of the rightness of branding the defendant as a felon and applying punishment. Those concerns were not present where the mistake warranted conviction for an offence: [13], [15]. A provision excusing a defendant from all criminal responsibility for the relevant conduct does not operate in an absence of belief that the conduct was lawful. This contrasts to a corresponding provision in Queensland, whereby the defendant is excused to the extent of the facts that were believed to exist, so that on the facts here the defendant would be excused for supplying the drug to a child but convicted for supplying it to a (non-existent) adult: [18]. The Tasmanian legislature had decided not to follow the Queensland enactment: [23].

Gageler J agreed that under the Tasmanian legislation, the defendant must think the conduct was innocent, that is, not an offence at all. Gordon and Steward JJ came to the same view: [46]-[47], and observed that this conclusion was not harsh, unfair, or contrary to the principles of the criminal justice system: [48]. Edelman and Gleeson JJ were of the same mind: [54], and they embarked upon an extended examination of the development of the common law excuse of honest and reasonable mistake. Again, the mistake must be such as to excuse all the conduct, and here it did not: [105].

It was significant in Bell that no issue was taken over the extent of the mental elements of the offence: the prosecutor only needed to prove the intention to supply the drug. There was no requirement for the prosecutor to prove that the defendant knew or believed the recipient was a child: Kiefel CJ and Keane J at [5], Gordon and Steward JJ at [41], Edelman and Gleeson JJ at [71]. This meant that the issue was not absence of mens rea, but instead was the applicability of the excuse of mistake.

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[1] You certainly don’t need to be reminded of R v Dudley and Stephens, and the ridiculous prospect of judges making law which they acknowledge they could not themselves obey. But I just mention that case as an aside: it is not a “mistake” case, but rather it is a “boundaries of the criminal law” case.

[2] Self defence can encompass mistakes, but the requirement may be that they are honest mistakes, even if not necessarily reasonable mistakes; the reasonableness requirement attaches to the force used in self defence. See, for example s 48 of the Crimes Act 1961 [NZ]. When I was a law student this provision used the masculine pronoun only, but now we have the recognition that some people are female: “Every one is justified in using, in the defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use.” This plainly needs updating, for now we have more pronouns in recognition of the LGBTQ+ people. Where will this end? To the revisers of statutes, I recommend (consistently with my stubbornly-held view: here) avoidance of all personal pronouns here. Try it.

[3] Is it an “excuse”, or a “justification”? The reasonableness requirement suggests justification (compare self defence in note 2 above). Absence of moral blameworthiness also suggests justification. But the expressions might be used without any intention of drawing a distinction between them.

Conviction appeals and judicial differences - lack of unanimous appellate verdict in a final appeal

In most appeals against conviction the focus is, to use the broadest of non-technical descriptions, on errors and on the soundness of the verdict at trial. In such appeals, differences among judges can occur on each of these matters.

An illustration is Hofer v The Queen [2021] HCA 36 (10 November 2021).

On whether there had been a qualifying error, Kiefel CJ, Keane J, Gleeson J (jointly) and separately, Gordon J, held that there had been such an error. Gageler J, while agreeing with the plurality in dismissing the appeal, held that there had been no such qualifying error.

And on whether the verdict at trial had been sound, the plurality held that it was, but Gordon J held that it wasn’t, and Gageler J didn’t need to address this question.

The case is of wide interest to appellate buffs, partly because of Gageler J’s recognition that he was bound by an earlier decision of the High Court (Weiss v The Queen [2005] HCA 81, discussed critically ten times on this site so far - use the search box) even if he disagreed with it, because its correctness was not in issue in this case: [97], and partly because of his discussion of how Weiss reorientated the function of appellate courts in deciding this type of conviction appeals: [85].

If appellate judges find that an error at trial was significant, in the sense that it created a real chance (etc, [120]) that it affected the verdict, then the appeal judges must themselves reach their own verdict on the available record (and on such new evidence as may be admissible on appeal), unless for reasons usually relating to the issues at trial - such as assessments of witness credibility - it is impossible to do so.[1] The Supreme Court of New Zealand has given itself this function too, by means of what I think is a rather strained application of techniques of statutory interpretation. See my discussion here, on 1 July 2021.

The appellate verdict in Hofer was not unanimous. The majority verdict favoured the upholding of the conviction. As this verdict was not unanimous, should a retrial have been ordered? And, in any case where an appellate verdict unanimously favoured there being a reasonable doubt about the appellant's guilt, would it be appropriate to order a retrial, or should an acquittal be entered?

The plurality judgment in Hofer contains a helpful discussion of the implications of non-observance of the rule in Browne v Dunn in criminal cases: [29]-[37].

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[1] Update: For illustration of circumstances where the Court considered it was inappropriate for it to reach a verdict, and instead ordered a retrial, see Orreal v The Queen [2021] HCA 44  (16 December 2021).