Friday, August 26, 2005

The proviso

Vexed issues concerning the application of s 385(1) of the Crimes Act 1961 are on the way to being resolved as a result of the Supreme Court’s decision in Sungsuwan v R [2005] NZSC 57 (25 August 2005).

Issues have concerned the power of appellate courts to disallow appeals against conviction if, notwithstanding that there had been, for example (s 385(1)(c)) a miscarriage of justice at trial, that miscarriage was not "substantial": the proviso to s 385(1). When is a miscarriage of justice "substantial"?

In Sungsuwan the appeal was based on alleged misconduct of counsel at the trial, in failing to adduce evidence that, it was claimed, would have supported the defence, from two prosecution witnesses. The Supreme Court unanimously held that the verdict was safe and that there was no miscarriage of justice in the conviction. Three judgments were delivered: individually by Elias CJ and Tipping J, and jointly by Gault, Keith and Blanchard JJ (delivered by Gault J).

Elias CJ held that it would be unlikely to be appropriate to apply the proviso where a miscarriage of justice in terms of s 385(1)(c) is made out (para 6).

Tipping J was firmer on this point, holding that in cases coming within s 385(1)(a) and (c) the proviso was fused with the error, in the sense that there was no need to apply the proviso once the error had been established (para 113). At this point, Tipping J footnotes R v McI [1998] 1 NZLR 696 (CA), illustrating that there was a degree of "awkwardness" in the relation between para (c) and the proviso. In that case, delivering the majority judgment of himself and Keith J, Tipping J had not gone so far as to separate para (c) from the application of the proviso, and had held that before the proviso could be applied, the Court "must be sure that the jury would without doubt have convicted had the matters giving rise to the initial miscarriage of justice not been present" (p 712, line 22). There are two points here worth noting.

First, the attempt in McI to imagine what might have happened had the error not occurred, is not used as the test in Sangsuwan. Admittedly, it makes sense in some contexts, but it can be a distraction from the real point which is, given that the error had occurred, what was its effect? In Sungsuwan the question is put variously as "whether the verdict is unsafe" (Elias CJ at para 7), whether the error prejudiced the accused’s chance of an acquittal (Gault J at para 67), whether the error was likely to have had an effect on the trial outcome (Gault J at 69), whether there was a real risk that the error affected the trial outcome, whether there was a real concern for the safety of the verdict (Gault J at 70), whether the error prejudiced the accused’s prospects of acquittal or a lesser verdict (Tipping J at 101), whether the error led to a real risk of an unsafe verdict (Tipping J at 107, 108, 110, 111, 116), whether the accused was deprived of a reasonable possibility of a more favourable verdict (Tipping J at 115).

Second, the quoted passage from McI shows that there is a high standard on the prosecution to show that the miscarriage of justice was not "substantial", implying that tolerance of miscarriage of justice is low. This appears consistent with Sungsuwan, as the formulae referred to in the previous paragraph indicate. Tipping J, however, and perhaps unintentionally, highlighted an inconsistency by referring in Sungsuwan to "the high threshold" for showing that the trial had been unfair (para 115, footnote 45). Is unfairness tolerated to a greater extent than other forms of miscarriage of justice?

One thing made clear in Sungsuwan is the relevance of the effect of the error on the verdict in cases where the error has led to the trial being unfair. Trials may, of course, contain errors, yet not amount to unfair trials. Trial unfairness is a narrow concept, focused on the questions of bias and application of the law to the facts. Some erroneous directions on the law may not cause a jury, overall, to misapply the law to the facts; they may, in the particular context, be insignificant slips. There has been some difference in the cases (see especially, Howse, below)about whether an error has to affect the verdict before the trial can be said to have been unfair.

Elias CJ held that it was difficult to envisage that a verdict reached without fair trial could not amount to a miscarriage of justice and it would not be likely that the proviso could apply (para 6). Gault J referred to errors that deny the accused a fairly presented defence, saying that these may readily permit the Court to find prejudice and in extreme cases may not require the Court to ask whether they affected the verdict (para 65). Tipping J addressed the point more directly, saying that, rarely, things may have gone so wrong at trial that a miscarriage of justice occurred without there being any need to refer to whether there was a real risk of an unsafe verdict (para 111, 112, citing, inter alia, the judgment of himself, and Richardson P and Blanchard J in R v Griffin [2001] 3 NZLR 577, 587).

When judges say that things will happen only "rarely", they happen all the time. To say "rarely" is to indulge in wishful thinking. The point is that whenever the trial has been unfair, there is no need to enquire whether the unfairness caused the guilty verdict. No matter how correct the guilty verdict may be, it must not be arrived at by an unfair trial.

It makes no sense to put the necessary risk of trial unfairness, before a substantial miscarriage of justice is found on that ground, at any different from the necessary risk of an unsafe verdict. Difficulty can arise in deciding between the two grounds, as is illustrated by Howse v R [2005] UKPC 31 (19 July 2005), noted in this blog on 23 July 2005. There, the majority, in a case where it was not in issue that the admissible evidence supported the verdict, rather the issue was whether the trial had been unfair, applied the criterion of what course the trial would have taken if the errors had not been made. This was precisely the wrong test, as Sunsuwan shows the appropriate question is, given that the errors occurred, what part did they play. The correct approach would have been to ask, as did the minority in Howse, whether the errors could have played a part in the task of applying the law to the facts.

Readers of these blogs will be deeply satisfied to note that in our entry for 1 April 2005, commenting on Teeluck v State of Trinidad and Tobago, we asserted that loss of a fair trial was itself a substantial miscarriage of justice and did not require that the verdict be unsafe.

Thursday, August 25, 2005

Impartiality and reason

On this, the first anniversary of the start of this blog, we consider a case that illustrates how not to get the court on your side.

In Mugesera v Canada (Minister of Citizenship and Immigration) [2005] SCC 39 (18 August 2005) proceedings filed in the Supreme Court of Canada alleged that it was a biased court, its composition having been manipulated by the (former) Minister as part of an extensive Jewish conspiracy aimed at ensuring Mugesera would be deported.

One new Judge had been appointed, and she recused herself from having anything to do with this appeal as soon as she saw it on the Court’s list of forthcoming work. Her husband was chair of the War Crimes Committee of the Canadian Jewish Congress, a party to these proceedings, and he had conveyed representations about the case to the Minister. Deportation was sought on the grounds that Mugesera wrongly had been allowed to stay in Canada, and that he was alleged to have committed, or had incited others to commit, murder, genocide, or crimes against humanity in Rwanda.

Mugesera sought a stay of proceedings on the grounds that the Minister had wrongly exercised his decision to seek deportation, by appealing an earlier court ruling, and that the Supreme Court of Canada was biased.

The Court, now sitting as 8 Judges, delivered a joint judgment, referring briefly to the law on stay of proceedings (para 12) and judicial impartiality (para 13), and held that the Minister had properly exercised his power to appeal (para 14). It then turned to the allegations that it was biased. It held that no reasonable person would think that, one Justice having recused herself, the ability of the other members of the Court to remain impartial would be impaired (para 15). It made important observations of the duties of counsel when preparing legal argument (para 16):

"Although it is not our usual practice, the content of the motion and of its allegations compels us to point out that it is unprofessional and unacceptable. It constitutes an unqualified and abusive attack on the integrity of the Judges of this Court. In an attempt to establish the alleged Jewish conspiracy and abuse of process against the Mugeseras, this pleading systematically referred to irresponsible innuendo. In addition, it refers to exhibits that are irrelevant and whose content is entirely inappropriate and misleading. Thus, it is obvious from the motion and its supporting exhibits that it was drafted with little concern for the rigour, restraint and respect for the facts required of all lawyers involved in judicial proceedings as an officer of the court. We are compelled to say that none of the allegations in the motion, no portion of the affidavits filed in support of the motion, and none of the documents to which these affidavits refer justifies the motion with respect to members of this Court or to the appellant’s decision to initiate and pursue this appeal. The only abuse of process from this motion lies at the feet of the respondent Mugesera and [his counsel] Mr. Bertrand."

The Court concluded with observations that reflect the difference between politics and law:

"17 Regretfully, we must also mention that the motion and the documents filed in support of it include anti Semitic sentiment and views that most might have thought had disappeared from Canadian society, and even more so from legal debate in Canada. Our society is a diverse one, home to the widest variety of ethnic, linguistic and cultural groups. In this society, to resort to discourse and actions that profoundly contradict the principles of equality and mutual respect that are the foundations of our public life shows a lack of respect for the fundamental rules governing our public institutions and, more specifically, our courts and the justice system."

Tuesday, August 09, 2005

Purpose and policy

R v Lavender [2005] HCA 37 (4 August 2005) required the High Court of Australia to decide whether malice is an element of manslaughter in legislation dating back over 100 years. While the 7 judges all agreed in the result (that it is not), the case is interesting for its demonstration of how evenly balanced is the nature of statutory interpretation. Kirby J noted this point at para 69.

The only reason Kirby J agreed with the Court’s conclusion was that the consequences of the preferred interpretation were "less unsatisfactory" than the consequences of the rejected interpretation. This was the critical point for him, and it was decisive after an application of the standard approach to statutory interpretation, which involves an analysis of the context of the disputed provision, the legislative history, and an effort to discern the intention of the legislators. A background consideration, as a matter of last resort (para 93) is the rule that penal statutes should, in cases of ambiguity, be construed against the state.

The so-called purpose of the legislators is, on the standard approach, the touchstone. Indeed, it has (unambiguous) statutory force in the form of s 5(1) of the Interpretation Act 1999[NZ] which provides that the meaning of an enactment must be ascertained from its text and in the light of its purpose. The Privy Council referred to that in R v Karpavicius [2002] UKPC 59, (2002) 19 CRNZ 609, a case where the opposing arguments were linguistically finely balanced. The Privy Council made it plain that the purposive approach is to take precedence over the strict construction of penal statutes rule.

However, the courts depart from the purposive approach when that conflicts with human rights, giving effect to rights wherever doing so is consistent with the "underlying thrust" or is "with the grain" of the legislation (as opposed to being consistent with the legislative purpose): Ghaidan v Godin-Mendoza [2004] 3 WLR 113, [2004] UKHL 30 (21 June 2004). Plainly, there are some rather fine shades of meaning here.

In considering how best to approach the interpretation of old legislation, it is appropriate to bear in mind the words of Francis Lieber, Legal and Political Hermeneutics (enlarged ed, 1839), at 135, quoted by Richard Posner, The Problems of Jurisprudence (1990) at 298:

"Whether we rejoice in it or not, the world moves on, and no man can run against the movement of his time. Laws must be understood to mean something for the advantage of society; and if obsolete laws are not abolished by the proper authority, practical life itself, that is, the people, will and must abolish them, or alter them in their application …."

Posner argues that the term "interpretation" is so elastic that "it often is a fig leaf covering judicial discretion rather than a guide to decision making" (p 30).

If there is a lesson to be drawn from deconstructionism, it is that the meaning of a text is ascertained by its reader, and is not pre-determined by its author. See JM Balkin, "Deconstructive Practice and Legal Theory" at

Friday, August 05, 2005

Silence as evidence

When, if ever, is the accused’s silence at trial evidence of his guilt? The conventional view is that silence itself is not evidence of anything; it is just an absence of evidence. The significance of this absence of evidence is, conventionally, that it may strengthen the weight to be given to prosecution evidence. Adams on Criminal Law puts it this way, at CA366.02:

"Silence cannot be used to fill a gap in the evidence presented by the prosecution, or relied on to establish guilt so as to warrant the jury omitting to scrutinise all the evidence before it. However, the Judge may direct the jury that in determining the weight to be given to evidence tending to prove guilt it may accord greater weight to such evidence by an inference drawn from the absence of explanation or answer from the accused: R v Hines (No 3) (1998) 16 CRNZ 236 (CA)."

On the other hand, in R v Becouarn [2005] UKHL 55 (28 July 2005) the House of Lords approved a direction to the jury that included the following:

" … if, and I stress the word, if, if you think in all the circumstances it is right and fair to do so you are entitled, when deciding whether the defendant is guilty of the offences with which he is charged, to draw such inferences from his failure to give evidence as you think proper. In simple terms that means that you may hold his failure to give evidence against him."

Permitting "such inferences as you think proper" potentially allows the jury to use silence as if it were positive evidence of guilt. This potential was recognised by Lord Carswell (with whom the others agreed) at para 21, where reference was made to a study showing that people tend to treat credibility evidence (in the example the Court was considering, this was evidence of the accused’s convictions) as if it were propensity evidence:

" … It is, however, a matter of notoriety that juries in practice are likely to regard them as indicators of propensity and so supportive of guilt. That piece of folk knowledge received some verification from a study commissioned by the Home Office and based on research carried out on the effect of bad character evidence on mock jurors (Sally Lloyd-Bostock, The Effects on Juries of Hearing about the Defendant's Previous Criminal Record: a Simulation Study [2000] Crim LR 734)."

In Becouarn the accused at trial had attacked the character of prosecution witnesses in a way that, inevitably, would have caused the judge to permit the prosecution to cross-examine him on his own previous convictions, if he gave evidence. By not giving evidence an accused can, in these circumstances, prevent the jury learning of his record. The accused did not give evidence, and the judge directed the jury on the significance of his silence at trial, and included the comment quoted above.

Jurisdictions differ in what is regarded as appropriate judicial comment on the accused’s silence at trial. As Adams observes, CA366.02:

"It would appear that the New Zealand position to some extent represents a mid-point between English practice where stronger comment may be considered appropriate (see R v Martinez-Tobon [1994] 2 All ER 90 (CA)) and the more restrictive Australian rule, as to which see Azzopardi v R (2001) 179 ALR 349; (2001) 119 A Crim R 8 (HCA)."

The Evidence Bill does not address the contents of judicial comment, merely providing (clause 29) that "In a criminal proceeding, no person other than the defendant or the defendant’s counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial."