Thursday, May 26, 2005

Evidence Bill (5)

What assistance in interpreting the proposed evidence legislation will the courts be able to obtain from the common law?

In the absence of any statement from the Attorney-General to Parliament that the Evidence Bill conflicts with the Bill of Rights, it is reasonable to expect that ambiguities and obscurities of the kind discussed in previous blog entries in this series may be resolved by courts with the assistance of cases interpreting the Bill of rights. An example is the relative importance of fairness to the accused, as compared with fairness to the prosecution or fairness to a witness. Given the origins of the Evidence Bill in the Law Commission’s proposed Evidence Code, we are justified in having some suspicions about the Evidence Bill’s claims about its own status.

Clause 5 gives a starting point from which this topic can be explored:

5 Application
(1) If there is an inconsistency between the provisions of this Act and any other enactment, the provisions of that other enactment prevail, unless this Act provides otherwise.

The question is, therefore, is there some other provision in this Bill that overrides the Bill of Rights and the law that has evolved interpreting the Bill of Rights? Clause 10 refers to the common law:

10 Interpretation of Act
(1) This Act---
(a) must be interpreted in a way that promotes its purpose and principles; and
(b) is not subject to any rule that statutes in derogation of the common law should be strictly construed; but
(c) may be interpreted having regard to the common law, but only to the extent that the common law is consistent with---
(i) its provisions; and
(ii) the promotion of its purpose and its principles; and
(iii)the application of the rule in section 12.
(2) Subsection (1) does not affect the application of the Interpretation Act 1999 to this Act.

Accordingly, to decide whether the right of the accused to a fair trial takes precedence over the right of the prosecution to a fair trial, we may have regard to the common law (which has established the primacy of the accused’s right to a fair trial), and then qualify that position if required to do so by the provisions of the Evidence Bill. If, then, the Evidence Bill does not state what the relationship of these rights is, the common law would apparently remain operative.
This appears to be consistent with clause 12:

12 Evidential matters not provided for
If there is no provision in this Act or any other enactment regulating the admission of any particular evidence or the relevant provisions deal with that question only in part, decisions about the admission of that evidence---
(a) must be made having regard to the purpose and the principles set out in sections 6 to 8; and
(b) to the extent that the common law is consistent with the promotion of that purpose and those principles and is relevant to the decisions to be taken, must be made having regard to the common law.

Thus the problem we are concerned with has to be resolved by the common law, to the extent that it is consistent with the purposes and principles in cl 6 to 8. The relevant provision here is cl 6:

6 Purpose
The purpose of this Act is to help secure the just determination of proceedings by---
… (b) promoting fairness to parties and witnesses

Although the point is arguable, this legislative purpose is not necessarily inconsistent with the common law’s ranking of the importance of the interests in a fair trial.

[Update: the Evidence Bill, in a revised form, was enacted in November 2006 as the Evidence Act 2006, its provisions to come into force at dates to be specified by the Governor-General in Council. The purposes of the Act, in s 6, have been expanded to include "providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990". This makes it clear that the Evidence Act is to be interpreted to give effect to the accused's absolute right to a fair trial.]

Another area in which the common law may remain important is the reliability of hearsay evidence. The common law developed the rule against hearsay, and its exceptions, in an effort to ensure that relevant evidence is reliable. Reliability is also of central concern to the Evidence Bill’s proposed reform of the law concerning hearsay. In particular, cl 18 provides:

18 Admissibility of hearsay
(1) A hearsay statement is admissible in any proceeding if---
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; …

What, for example, will be the status of the common law rules concerning the hearsay statements of those who act in concert with the accused in pursuance of a pre-arranged plan? These rules are referred to by various names, in particular as the pre-concert exception, and they apply not just to conspiracy cases, but also to any case where the hearsay statement was made by a person apparently in pursuance of a common plan.

In Canada, where the pre-concert exception has been stated in more precise terms than it has in New Zealand, the Supreme Court has recently held that these rules are in fact reliability rules, applicable under the reformed hearsay law: R v Mapara [2005] SCC 23 (27 April 2005). It is therefore likely that if the Evidence Bill is enacted in its present form in this respect, the common law pre-concert rules would remain applicable and could continue to be developed.

Wednesday, May 25, 2005

Evidence Bill (4)

The need to avoid a substantial miscarriage of justice is the pervasive criterion for the correctness of decisions, considered individually and collectively, made by the trial judge. It is undoubtedly true, as Lord Rodger recently observed in relation to fairness, that the appellate court may have the advantage of a clearer perspective on whether a substantial miscarriage of justice has occurred: Holland v HM Advocate (Devolution) [2005] UKPC D1 (11 May 2005), para 41. It is therefore a natural, and widespread practice throughout the common law jurisdictions, for appellate courts to have to consider whether any miscarriage of justice that had occurred was indeed substantial. If it was not, appeals will be dismissed. Trial judges, absorbed in their task of trying to make the law work, will naturally bear in mind this ultimate criterion.

Substantial miscarriages of justice are currently seen as being of two types. The first arises where error at trial deprives the accused of a reasonable chance of an acquittal. This does not necessarily mean that the trial was unfair, as it includes situations of freshly obtained evidence which do not impugn the fairness of the trial, only the correctness of its result. Other examples of loss of a reasonable chance of acquittal may involve trial unfairness. The second type of substantial miscarriage of justice does invlove trial fairness. It includes cases where the course taken resulted in bias, actual or perceived, and cases where the trial was not according to law. In this second type of substantial miscarriage of justice, loss of a reasonable chance of acquittal is irrelevant, as even a person who is patently guilty is entitled to trial according to law: Randall v R [2002] UKPC 19 (16 April 2002); [2002] 1 WLR 2237 (PC), at 2251 para 28.

Thus the two elements, loss of a reasonable chance of acquittal, and loss of the right to a trial that is fair to the accused, are of primary importance. This should be reflected in the overarching provisions of evidence law.

In its application to criminal proceedings, the Evidence Bill falls short of recognising the primacy of these elements. Clause 6 states:

6 Purpose
The purpose of this Act is to help secure the just determination of proceedings by---
(a) providing for facts to be established by the application of logical rules; and
(b) promoting fairness to parties and witnesses; and
(c) protecting rights of confidentiality and other important public interests; and
(d) avoiding unjustifiable expense and delay.

The expression "fairness to parties and witnesses" does not recognise the ranking of the importance of fairness to the accused, to the prosecution, and to witnesses.

[Update: the Evidence Bill was enacted, in revised form, as the Evidence Act 2006. Its purposes have been expanded by inserting in s 6 the following purpose: "providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990". This requires the Courts to recognise the absolute nature of the accused's right to a fair trial.]

Again, cl 8, referred to in the second instalment of this series of blog entries, states:

8 General exclusion
In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will---
(a) have an unfairly prejudicial effect on the outcome of the proceeding; or
(b) needlessly prolong the proceeding.

This does not explain the point of view from which fairness is to be assessed. It is fairness to the accused that has primary importance.

[Update: the Evidence Act 2006, has a revised form of cl 8, adding the following as s 8(2): "In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence." This should, together with the reference to the Bill of Rights in s 6, above, incorporate the requirement that the trial must be fair to the accused into the weighing exercise, making it the overriding requirement.]

It is not clear that the inherent jurisdiction of the court to act so as to prevent an abuse of its process will come to the rescue of the primary elements:

11 Inherent powers not affected
(1) The powers inherent in a court to regulate and prevent abuse of its procedure are not affected by this Act except to the extent that this Act provides otherwise.
(2) Despite subsection (1) a court must have regard to the purpose and the principles set out in sections 6 to 8 when exercising inherent powers to regulate and prevent abuse of its procedure.

[Update: the Evidence Act 2006 replaces subclause (1) of cl 11 with the following, as s 11(1):
"(1) The inherent and implied powers of a court are not affected by this Act,
except to the extent that this Act provides otherwise."]


It is unsatisfactory for the fundamental elements to be obscured by this vagueness.

The relationship between the legislation and the common law powers to prevent abuse of process are clearer in the Australian uniform Evidence Act 1995 (C’th), s 11 of which provides:

General powers of a court
(1) The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment.
(2) In particular, the powers of a court with respect to abuse of process in a proceeding are not affected.

The Australian legislation, however, is also unsatisfactory in that its general provisions fail to distinguish fairness to the accused from fairness to the parties, and they give overarching importance to the flawed weighing of probative value against unfairly prejudicial effect (see the second blog entry in the present series).

It seems that the ideal legislative model has yet to be constructed. This is hardly surprising in this rapidly developing area of the common law. Many of the leading cases have been decided since the current project to revise our evidence law began.

Tuesday, May 24, 2005

Evidence Bill (3)

The third of the evidence topics requiring the exercise of judicial judgment is the method by which judges act to ensure the fairness of the trial for the accused. It is beyond dispute that the accused has the right to a fair trial, and that this right is essential, fundamental and absolute.

The need for fairness at trial may require the judge to give warnings to the jury about matters such as lies allegedly told by the accused; the risks associated with particular categories of witnesses such as accomplices, children, or people with impairments that may affect the reliability of their evidence; identification evidence; and delayed complaints about sexual matters.

I will consider here how the Bill addresses the subject of judicial warnings about the significance of lies allegedly told by the accused. The relevant provision is:

120 Judicial warnings about lies
(1) This section applies to evidence offered in a criminal proceeding that states a defendant has lied either before or during the proceeding.
(2) If evidence of a defendant's lie is offered in a criminal proceeding tried with a jury, the Judge is not obliged to give a specific direction as to what inference the jury may draw from that evidence.
(3) Despite subsection (2), if, in a criminal proceeding tried with a jury, the Judge is of the opinion that the jury may place undue weight on evidence of a defendant's lie, the Judge must warn the jury that---
(a) the jury must be satisfied before using the evidence that the defendant did lie; and
(b) people lie for various reasons; and
(c) the jury should not necessarily conclude that, just because the defendant lied, the defendant is guilty of the offence for which the defendant is being tried.
(4) In a criminal proceeding tried without a jury, the Judge must have regard to the matters set out in paragraphs (a) to (c) of subsection (3) before placing any weight on evidence of a defendant's lie.

The Bill departs from the Law Commission’s proposal in its Evidence Code, cl 110(3), by the omission of the requirement for a warning if the defence asks that one be given.

Potential shortcomings of these proposals are:
  • Omission of a requirement for the judge to consult with counsel on the need for a lies direction before summing up. [Update: the Evidence Act 2006 revises this by inserting in subsection 3 the requirement that the Judge must give a lies warning if the defence so requests.]
  • Omission of a requirement to direct the jury to ignore the alleged dishonesty unless they (ie jurors individually, not the jury collectively) are sure that the defendant lied. Clause 120(3)(a) does not indicate what the jury should do if they are not satisfied the defendant lied.
  • Omission of a direction that the jury must be satisfied to the standard of beyond reasonable doubt that the defendant lied before they can take the dishonesty into account.
  • Omission of the need to give illustrations of why people might lie for reasons that do not support the prosecution case: to bolster a true defence, to protect somebody else, to conceal some other conduct which is not the subject of the proceedings, panic, distress, confusion.
  • Omission of a distinction between dishonesty that is only relevant on the issue of the defendant’s credibility, and dishonesty that lends support to the prosecution case.
  • Omission of a direction that the dishonesty can only support the prosecution case if the jury is sure beyond reasonable doubt that there is no innocent reason for it.


I have drawn these "shortcomings" by comparison with the model directions issues by the Judicial Studies Board in the United Kingdom.


No one can deny that the topic of lies directions has been troublesome for judges. There is a risk that efforts to simplify will result in departure from what is appropriate.


One can see how difficult the subject is by looking at Zoneff v R (2000) 112 A Crim R 114 (HCA), where 4 judges held that the giving of a lies direction had been a substantial miscarriage of justice because it gave unfair emphasis to the alleged lies, while the fifth judge, dissenting, held that a lies direction should indeed have been given, but that it had been given wrongly here, although that error did not amount to a substantial miscarriage of justice.


My view is that Cl 120 of the Bill, if indeed the topic of lies is to be included, should be revised to conform to the practice in the United Kingdom, although a further point emerges: the UK legislation, the Criminal Justice Act 2003, does not deal with how juries should be directed about lies. The search for perfection continues, with the task of announcing the current best practice being that of the Judicial Studies Board. It is not yet the time to set this law in legislation. The Australian uniform Evidence Act 1995 (Cth) also omits specifying the contents of lies directions.


Treating correctly evidence that alleges the accused told lies can be vital to the fairness of trials. What is appropriate will vary with the circumstances of each case, and the matter may best be left for the judge to deal with as part of the task of ensuring that the trial is fair to the accused.

Monday, May 23, 2005

Evidence Bill (2)

The second area of admissibility requiring exercise of judgment has been traditionally formulated as the balancing of probative value against the risk of illegitimate prejudice to the accused that would arise as a result of admission of the challenged evidence. This formula is reflected in clause 8 of the Bill:

8 General exclusion
In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will---
(a) have an unfairly prejudicial effect on the outcome of the
proceeding; or
(b) needlessly prolong the proceeding.

The meanings of probative value and prejudicial effect are indicated in clause 39, which deals with a topic commonly the subject of such balancing, called at common law similar fact evidence:

39 Propensity evidence offered by prosecution about defendants
(1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
(2) When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.
(3) When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
(a) the frequency with which the acts, omissions, events, or
circumstances which are the subject of the evidence have occurred:
(b) the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(c) the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(d) the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f) the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.
(4) When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,---
(a) whether the evidence is likely to unfairly predispose the
fact-finder against the defendant; and
(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.

The essence of illegitimately prejudicial evidence, as seen from cl 39(4) above, is that it deprives the accused of a fair trial, by causing bias or improper use of evidence.

The balancing of probative value against the risk of illegitimate prejudice has caused great difficulty in practice, because it is a fallacy to say that probative value is something that can be put in opposition to the accused’s right to a fair trial. These are not things that can be weighed against each other.

Useful guidance can be obtained from the recent evidence law reforms in England. Whereas the Law Commission of England and Wales, in its Report of October 2001, "Evidence of Bad Character in Criminal Proceedings", proposed a draft Bill containing , in clause 8, the weighing of risk of prejudice against probative value, that proposal was not enacted. The Criminal Justice Act 2003[UK], s 101(3), contains the revised law:

"The court must not admit evidence … if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

This avoids the fallacious weighing, although it may be accused of vagueness as to how much unfairness is sufficiently adverse to require exclusion of the evidence. That point will be considered in the next blog entry in this series on the Evidence Bill.

Saturday, May 21, 2005

Evidence Bill (1)

The exercise of judgment is fundamental to the application of the rules of evidence. There are 4 areas in which judgment is critical:

 The decision whether to exercise the discretion to exclude evidence on public policy grounds. The focus here is on unreliable confessions, statements obtained by oppression, and other kinds of improperly obtained evidence.

 The decision whether to admit evidence that would otherwise be inadmissible, where its probative value outweighs the risk of illegitimate prejudice to the accused. Evidence of bad character is the prime example of evidence of this kind.

 Decisions that have to be made concerning the requirements of fairness. The choice is between excluding the evidence and admitting it with a warning to the jury about its dangers. Examples are evidence that is of questionable reliability, delayed complaints of sexual misconduct, evidence of children, identification evidence, and evidence that the accused has told lies.

 Decisions that have to be made with a view to avoiding a substantial miscarriage of justice. Usually an appellate court will be in a position to have a better perspective on this than will the trial judge, but nevertheless a trial judge will bear this requirement in mind throughout the trial. The need here is to avoid two kinds of errors: errors through which the accused improperly loses a chance of acquittal that should have been reasonably open, and errors which cause the jury to misapply the law to the facts.

I will consider, in separate blog entries, how each of these areas of judicial judgment are to operate under the Evidence Bill, which was introduced into Parliament this month. Today I begin with …

The Public Policy Decisions

The Bill sets out three rules: the unreliable statement rule (Clause 24), the oppression rule (cl 25) and the improperly obtained evidence rule (cl 26). The first two require the judge to evaluate the evidence on the relevant issue against the standard of either (cl 24(2)) the balance of probabilities, or (cl 25(2)) beyond reasonable doubt. The third, however, involves both judgment against a standard (the balance of probabilities: cl 26(2)(a)) and a balancing exercise to determine whether exclusion is proportionate to the impropriety: cl 26(2)(b).

24 Exclusion of unreliable statements

(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer a statement of a defendant if---
(a) the defendant or a co-defendant against whom the statement is offered raises, on the basis of an evidential foundation, the issue of the reliability of the statement and informs the Judge and the prosecution of the grounds for raising the issue; or

(b) the Judge raises the issue of the reliability of the statement and informs the prosecution of the grounds for raising the issue.

(2) The Judge must exclude the statement unless satisfied on the balance of probabilities---

(a) that the circumstances in which the statement was made were not likely to have adversely affected its reliability; or

(b) that the statement is true.

(3) However, subsection (2) does not have effect to exclude a statement made by a defendant if the statement is offered only as evidence of the physical, mental, or psychological condition of the defendant at the time the statement was made or as evidence of whether the statement was made.

(4) Without limiting the matters that a Judge may take into account for the purpose of applying subsection (2)(a), the Judge must, in each case, take into account any of the following matters that are relevant to the case:

(a) any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not); and

(b) any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not); and

(c) the nature of any questions put to the defendant and the manner and circumstances in which they were put; and

(d) the nature of any threat, promise, or representation made to the defendant or any other person.


25 Exclusion of statements influenced by oppression

(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer a statement of a defendant if---

(a) the defendant or a co-defendant against whom the statement is offered raises, on the basis of an evidential foundation, the issue of whether the statement was influenced by oppression and informs the Judge and the prosecution of the grounds for raising the issue; or

(b) the Judge raises the issue of whether the statement was influenced by oppression and informs the prosecution of the grounds for raising the issue.

(2) The Judge must exclude the statement unless satisfied beyond reasonable doubt that the statement was not influenced by oppression.

(3) For the purpose of applying this section, it is irrelevant whether or not the statement is true.

(4) Without limiting the matters that a Judge may take into account for the purpose of applying subsection (2), the Judge must, in each case, take into account any of the following matters that are relevant to the case:

(a) any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not); and

(b) any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not); and

(c) the nature of any questions put to the defendant and the manner and circumstances in which they were put; and

(d) the nature of any threat, promise, or representation made to the defendant or any other person.

(5) In this section, oppression means---

(a) oppressive, violent, inhuman, or degrading conduct towards, or treatment of, the defendant or another person; or

(b) a threat of conduct or treatment of that kind.


26 Improperly obtained evidence

(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if---

(a) the defendant or a co-defendant against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or

(b) the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.

(2) The Judge must---

(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and

(b) if the Judge finds that the evidence has been improperly obtained, 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 but also takes proper account of the need for an effective and credible system of justice.

(3) For the purposes of subsection (2), the court may, among any other matters, have regard to the following:

(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:

(b) the nature of the impropriety, in particular, whether it was
deliberate, reckless, or done in bad faith:

(c) the nature and quality of the improperly obtained evidence, in
particular whether it is central to the case of the prosecution:

(d) the seriousness of the offence with which the defendant is charged:

(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:

(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:

(g) whether the impropriety was necessary to avoid apprehended physical danger to the police or others:

(h) whether there was any urgency in obtaining the improperly obtained evidence.

(4) The Judge must exclude any improperly obtained evidence if, in
accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.

(5) For the purposes of this section, evidence is improperly obtained if it is obtained---

(a) in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or

(b) in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or

(c) unfairly.


Of interest here are the standards of proof specified for each decision. Clause 24 uses the balance of probabilities. The Law Commission has changed its stance: in the Evidence Code (NZLC R 55 vol 2) the corresponding clause, 27(2), used beyond reasonable doubt as the standard for excluding unreliability. Of course here “unreliability” is a shorthand way of referring to the question whether the circumstances in which the statement was obtained were likely to affect its reliability. This is distinct from the question of the actual reliability of the statement itself. There is therefore not the logical objection that otherwise would lie in the way of the criminal standard of proof applying (the objection would have been that if the statement was, beyond reasonable doubt, reliable, the ultimate issue would have been decided by the judge). Bearing in mind the point that the issue is the circumstances in which the evidence was obtained, the focus is on the propriety of the methods used to obtain it. The Bill does not insist on proof to the standard of beyond reasonable doubt that those who obtained the statement acted properly.

The criminal standard of proof is applied to the issue of absence of oppression in cl 25. This properly reflects the common law’s abhorrence of “third degree” interrogations.

The balance of probabilities is applied in cl 26 as a threshold that has to be met before the balancing exercise is undertaken. Unless the defence satisfies the judge on the balance of probabilities that there was impropriety in the obtaining of the evidence, there is no progression to the balancing exercise, and the evidence is not excluded on that ground. Use of the balance of probabilities here is a reflection of the commonly held view that any factual pre-conditions that have to be established before evidence is admissible need only be proved on the balance of probabilities. Early formulations of the now obsolete prima facie exclusion rule, that applied to evidence obtained in breach of the Bill of Rights, used the same standard of proof on the issue of whether there had been a breach. The prima facie exclusion rule was replaced in R v Shaheed [2002] 2 NZLR 377 (CA) by the balancing exercise which is reflected in cl 26(2)(b) and (3) of the Bill. Under Shaheed the balancing exercise was not expressly contingent on the satisfaction of any particular standard of proof applicable to the issue of whether there had been a breach of rights. In contrast, the Privy Council, in Mohammed v The State [1999] 2 AC 111, 123-124, held that where there is an issue of the breach of rights, the prosecution bears the burden of excluding such breach to the standard of beyond reasonable doubt, and that where the prosecution fails to achieve that, the balancing exercise must be undertaken (except where the breach is of the right to a fair trial, in which case the evidence is automatically excluded without balancing).

In these contexts, the standard of proof is an expression of how willing the court will be to look at the issue the defence seeks to raise. Oppression is, under the scheme in the Bill, the most eagerly examined. Unreliability and impropriety do not attract as much interest. The appropriateness of those thresholds for judicial interest is a matter over which people may well differ.

Thursday, May 05, 2005

Proof and prejudice

To what extent can trial fairness be sacrificed to the need to establish the truth? The answer depends on whether the case is criminal or civil.

In civil cases, if the parties will not reach a settlement, the court must reach a result. This may mean proceeding to decision notwithstanding some unfairness. In such a case, if unfairness cannot be avoided, at least the court will try to minimise it, and to balance it so that while the trial may not be equally fair to each side, it could be (albeit rather cynically) called equally unfair to each side. The dominating concern in civil cases is to establish the truth insofar as that can be done in compliance with the rules of evidence.

Judges do not, naturally enough, spell this out as plainly as I have just done. Recently, Lord Bingham has referred to truth and fairness, in relation to civil trials, in O’Brien v Chief Constable of South Wales Police [2005] UKHL 26 (28 April 2005), at para 6:

"…In deciding whether evidence in a given case should be admitted the judge's overriding purpose will be to promote the ends of justice. But the judge must always bear in mind that justice requires not only that the right answer be given but also that it be achieved by a trial process which is fair to all parties."

This does not tell us whether impossibility of fairness to all parties prevents the right answer being found. Be that as it may, we are concerned here with criminal cases, and in criminal law, as it is applied in the common law jurisdictions, courts endeavour to balance competing interests.

The criminal law has multiple functions, and they include meeting official misconduct by the exclusion of improperly obtained evidence. In extreme cases a stay of proceedings may be ordered on grounds of public policy. Those grounds are not directly connected to the fairness of the trial. Another ground for excluding relevant evidence is that its probative value is exceeded by its illegitimately prejudicial effect. This latter ground is particularly problematic.

Its application may result in evidence that is highly probative being admitted notwithstanding the significant risk it brings of illegitimate prejudice. See, for a statement of the law, Lord Phillips in para 32 of O’Brien. Sections 101 to 106 of the Criminal Justice Act 2003[UK] now govern this discretion in the United Kingdom.

In criminal cases, the accused’s right to a fair trial is absolute, primary, and essential. This means that reasonable risks of illegitimate prejudice must be avoided. The probative value/prejudicial effect balancing decision needs to be "re-understood" in the light of developments in human rights law.

This crucial development in the law of criminal evidence is something I have written on elsewhere, and readers with robust stamina may wish to see: Mathias, "The Duty to Prevent an Abuse of Process by Staying Criminal Proceedings" in Robertson (ed) Essays on Criminal Law: A Tribute to Professor Gerald Orchard (Brookers, 2004), and Mathias, "Probative value, illegitimate prejudice and the accused’s right to a fair trial" (2005) 29 Crim LJ 8.

Wednesday, May 04, 2005

Common law rules and the proposed Evidence Code

The Supreme Court of Canada last week gave us a clue as to what approach to the admissibility of hearsay evidence in cases of conspiracy or pre-concert might be taken if the New Zealand Law Commission’s proposed Evidence Code is enacted: R v Mapara [2005] SCC 23 (27 April 2005).

Under the proposed Code, hearsay evidence is admissible in criminal proceedings if the circumstances in which it was obtained provide reasonable assurance that it is reliable: cl 19, and if procedural preliminaries to provide for the hearing of any admissibility challenge have been met.

The Code does not provide detail on the reliability criteria, so the question arises as to what will be the status under the Code of the common law rules that have developed to deal with the admissibility of hearsay statements of alleged co-conspirators, or of alleged participants in a joint enterprise (accomplices).

In Mapara, the Supreme Court of Canada held, 7 to 2, that the common law rules do provide sufficient assurance of reliability for there to be no need for a separate reliability decision (para 27), except in rare cases when the accused can point to evidence raising serious and real concerns as to reliability (para 30).

The relevant rules in Canada are similar to those that currently apply in New Zealand: there are three matters that have to be considered. The Canadian formulation of these, set out in R. v. Carter [1982] 1 S.C.R. 938, requires first, proof beyond reasonable doubt that there was a conspiracy or common design of the kind alleged; second, proof on the balance of probabilities and on non-hearsay evidence that the accused was a member of that conspiracy or common design; third, that the hearsay statement was made in furtherance of the conspiracy or common design.

It must be acknowledged that in New Zealand these rules have yet to achieve such clarity. There is a tendency to merge the first and second issues into a requirement that the accused be shown to have shared in a common purpose: eg R v Humphries [1982] 1 NZLR 353 (CA). Further, there is some wavering as to the standard of proof required for the second matter, some cases indicate that "reasonable evidence" is sufficient, while others require proof on the balance of probabilities. For the "reasonable evidence" requirement, see R v Karpavicius 12/9/00, Anderson J, HC Auckland T001037, para 17. For the balance of probabilities formulation see R v M 2/5/01, William Young J, HC Christchurch T14/01, at [51], although the Judge doubted that this was any more exacting, from the Crown’s point of view, than the unadorned reasonable evidence test, and on appeal the Court of Appeal took the same approach: R v M 11/7/01, CA135/01.

Given that the common law rules are aimed at preventing the admission of unreliable evidence, and that under the proposed Code the criterion for admission of hearsay evidence will be its reliability, we must ask to what extent will the existing rules survive the enactment of the Code. This is a general question, not simply confined to conspiracy or pre-concert cases.