Wednesday, March 29, 2006

Good character again

Once again, see Index, the topic of the significance of absence of a good character direction has concerned the Privy Council: Gilbert v R (Grenada) [2006] UKPC 15 (27 March 2006). Their Lordships indicated that a forthcoming case also concerns this subject: Bhola v The State (Trinidad and Tobago) [2006].

Gilbert makes the point that there is a duty on counsel for the defence to ensure that the trial judge understands that a good character direction is sought: para 11, citing Thompson v R [1998] AC 811 (PC). Omission of the direction requires attention to two matters: was the trial thereby rendered unfair to the accused, and did the omission render the verdict unsafe? (citing for these, Teeluck and John v The State [2005] UKPC 14 at para 39, blogged here, 1 April 2005).

Whereas it may have seemed on some readings that the law requires the direction to be given as a matter of course, in Gilbert it was emphasised that the requirement is that the direction should "normally" be given (para 15, citing R v Aziz [1996] 1 AC 41). That is, the issues of fairness and effect on the result are examined in the particular circumstances of each case. That, of course, is obvious for the result point, and Gilbert makes it clear that fairness is also a matter to be determined on the particular circumstances. There are, thus, no hard or inflexible rules about whether fairness requires the direction, rather the nature of the issues in each case must be examined: para 20, citing Lord Bingham in Singh v The State [2005] UKPC 35 at para 14.

Here, then, the circumstantial evidence of guilt was substantial (para 18), and the accused’s good character was wholly outweighed by the nature and coherence of the circumstantial evidence (applying a phrase used by Lord Hope in Balson v The State [2005] UKPC 6, para 37). The absence of the good character direction therefore had no effect on the fairness of the trial or on its result.

One must observe, with respect, that the question of fairness, which is a procedural matter, will be swamped by the question of result, which is an evidential matter, unless the two are kept distinct. Certainly, the Privy Council here, at para 19, noted that the trial was fair in all other respects, even being "unduly fair" [sic] in that the judge refrained from commenting on the accused's failure to give evidence. Nevertheless, the risk remains that the impression will be given that unfair procedure may be cured by strong evidence, which is undoubtedly not what the Privy Council intended to convey.

The difficulty is that a good character direction is aimed at assisting the jury to evaluate the weight to be given to the evidence, and here it was the complainant's evidence. In fairness terms, the direction is concerned with the avoidance of bias. What is relevant to bias is, not the strength of the prosecution evidence, but whether the absence of the direction put the accused at a disadvantage. On the facts of Gilbert, where the accused was a minister of religion, his previous good character was probably taken for granted by the jury. Therefore, it could safely be concluded that there was no unfairness to him occasioned by the absence of a good character direction.

Tuesday, March 28, 2006

Two points of conduct

In Ebanks v R (Cayman Islands) [2006] UKPC 16 (27 March 2006) the Privy Council reminded us of a couple of fundamental points:

- when a client instructs that he will not give evidence, that instruction must be in writing and signed by the client.

- counsel in cross-examining must put his client’s case, including allegations that the witness is lying, even if the client is not going to give, or call, evidence to establish that fact.

In Ebanks, the appeal against conviction for murder was brought on the grounds of failure by counsel to carry out the client’s instructions in the conduct of his defence, and that this resulted in an unfair trial.

Here again, we have the difficult topic of trial fairness, and again the Privy Council divided 3 – 2 on this issue. We saw a similar split in Howse v R (see these blogs for 10 October 2004), in a Board that was differently constituted but with some overlap in membership. In Ebanks, Lord Rodger gave the decision of the majority (Lords Carswell and Mance agreeing) upholding the conviction, and the dissenters were Lord Steyn and Sir Swinton Thomas. In Howse, the majority, upholding the convictions, were Lords Hutton and Carswell, and the dissenters were Lord Rodger and Sir Andrew Leggatt.

In Ebanks, the reason that persuaded the majority that there had not been unfairness emerged from a consideration of counsel’s conduct at trial, when he appeared to be regularly consulting with his client in a way that was consistent with a carefully conducted defence. In those circumstances, it was possible, notwithstanding the absence of a written record, to reject the suggestion that counsel had not followed the client’s instructions.

The minority in Ebanks focused on the conduct of the hearing in the Cayman Islands Court of Appeal. They held that this had involved a failure of due process, because the Court had wrongly refused to allow the appellant to supplement his affidavit with oral evidence. That Court had also been wrong in its understanding of the duty of counsel in cross-examining to put the client’s case that the police witnesses were lying. The Court had inferred that these allegations were not put because Mr Ebanks had instructed that he would not give evidence, and that his post-conviction claim that he wanted to give evidence was wrong (para 42 per Lord Steyn). This, Lord Steyn (with Sir Swinton Thomas agreeing) held, was a material irregularity, potentially prejudicing the appellant. It seems that in his affidavit filed in the Court of Appeal, Mr Ebanks had not addressed the point about what he had instructed counsel about whether he would give evidence. Lord Steyn considered that if he had been allowed to give oral evidence on that, counsel may well have agreed that he had indeed given that instruction. If that had happened, he would have been denied a fair trial. Sir Swinton Thomas agreed, emphasising the significance of the absence of a written record of the client's instructions, despite his waiver of privilege.

Process takes priority over substance. It cannot be said that guilt can be determined reliably at an unfair trial. Lord Steyn applied, mutatis mutandis, a passage from Wade and Forsyth, Administrative Law, 9th Ed (2005) at 506-508 (see para 40 of his judgment - here I have italisised the passage from the textbook):

" "Procedural objections are often raised by unmeritorious parties. Judges may then be temped to refuse relief on the ground that a fair hearing could have made no difference to the result. But in principle it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudged unfairly. Lord Wright once said:
'If the principles of natural justice are violated in respect of any decision it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.'
The dangers were vividly expressed by Megarry J, criticising the contention that 'the result is obvious from the start':
'As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.'
. . . Judges are naturally inclined to use their discretion when a plea of breach of natural justice is used as the last refuge of a claimant with a bad case. But that should not be allowed to weaken the basic principle that fair procedure comes first, and that it is only after hearing both sides that the merits can be properly considered."

Although made in the administrative law context, these observations are also germane to the question whether the Court of Appeal could have declined to hear oral evidence on the ground that it would make no difference. To have decided the case on such a basis would have been unfair and contrary to due process. After all, it is entirely possible (and even likely) that Mr St. John Stevens [counsel for Mr Ebanks at trial]would have made the same core concession that Mr McGrath [Attorney for Mr Ebanks]made, viz that the Appellant insisted that he made no confession to the police."

One must, of course, make allowances for the differing circumstances of each case, but it is interesting to observe that a judge (Lord Rodger) who could uphold the trial in Ebanks as being fair, was such a strong dissenter in Howse.

The dicta in this case about counsel’s duty to put the case to witnesses in cross-examination, even where evidence is not being called to establish the points, in effect amplify Rule 10.02 of our Rules of Professional Conduct for Barristers and Solicitors.

Thursday, March 23, 2006

School Rules, OK!

Yesterday, the House of Lords decided Begum v Denbigh High School [2006] UKHL 15 (22 March 2006), a case that has some bearing on how a provision commonly found in Bills of Rights is to be understood.

The relevant provision in New Zealand is s 5 of the Bill of Rights:

5. Justified limitations - Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In Begum, the interpretation of article 9 of the ECHR was in issue, and it can be seen that art 9.2 corresponds to s 5 of NZBORA:

"Freedom of thought, conscience and religion
9.1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
9.2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society . . . for the protection of the rights and freedoms of others."

The difference in wording is immaterial, because neither s 5 nor art 9 seeks to establish a set of procedural steps that courts must apply in deciding whether limitations on rights are justified.

Lord Bingham, at para 31, emphasised that what matters is the practical outcome (ie whether a rule is an unjustified limitation of a right), not the quality of the decision making process that led to it (ie not, on the facts of this case, whether the school authorities reasoned correctly when they decided upon the rule).

Lord Hoffmann agreed, saying at para 68:

" … article 9 is concerned with substance, not procedure. It confers no right to have a decision made in any particular way. What matters is the result: was the right to manifest a religious belief restricted in a way which is not justified under article 9.2? The fact that the decision-maker is allowed an area of judgment in imposing requirements which may have the effect of restricting the right does not entitle a court to say that a justifiable and proportionate restriction should be struck down because the decision-maker did not approach the question in the structured way in which a judge might have done. Head teachers and governors cannot be expected to make such decisions with textbooks on human rights law at their elbows. The most that can be said is that the way in which the school approached the problem may help to persuade a judge that its answer fell within the area of judgment accorded to it by the law."
Begum suggests that a formalistic approach to the decision, about whether a right has been subject to unjustified limitation, is inappropriate, and that it is the practical outcome that matters. In Begum the school rule that proscribed the wearing of religious clothing was held, in the particular circumstances of this case (it is important to recognise that the Law Lords were not usurping Parliament’s power by seeking to rule on the validity of legislation that gave the power to make rules to the governing body of each school), not to be an unjustified limitation of the right to express religious belief. The school in question had carefully considered its rule about uniforms, in the context of the composition of its roll and the views of the community it served. Lord Bingham concluded, para 34:

"On the agreed facts, the school was in my opinion fully justified in acting as it did. It had taken immense pains to devise a uniform policy which respected Muslim beliefs but did so in an inclusive, unthreatening and uncompetitive way. The rules laid down were as far from being mindless as uniform rules could ever be. The school had enjoyed a period of harmony and success to which the uniform policy was thought to contribute. On further enquiry it still appeared that the rules were acceptable to mainstream Muslim opinion. It was feared that acceding to the respondent's request would or might have significant adverse repercussions. It would in my opinion be irresponsible of any court, lacking the experience, background and detailed knowledge of the head teacher, staff and governors, to overrule their judgment on a matter as sensitive as this. The power of decision has been given to them for the compelling reason that they are best placed to exercise it, and I see no reason to disturb their decision."

In Hansen, blogged here 19 September 2005, alternative interpretations of a section that has a limiting effect on the presumption of innocence are under consideration. The Begum approach would look at the practical outcome of each. One would require an accused to establish innocence on the balance of probabilities. This is a serious limitation on the presumption of innocence. In the absence of any evidence that Parliament deliberately intended (ie intended after deliberation) that that limitation should be imposed, the alternative interpretation, that the section requires the accused to raise a reasonable doubt about his guilt, should be preferred. In deciding whether Parliament intended the more limiting meaning, it must be relevant to note that when the section was recently re-enacted, there was no Report from the Attorney-General to the effect that the provision appears to be inconsistent with any of the provisions of NZBORA, as is required by s 7. In the absence of an express parliamentary intention to limit the presumption of innocence, the courts should not impose such a limitation through interpretation.

On this approach, s 5 works as a guide to Parliament when it considers legislating to limit rights. This point was made by the Chief Justice in argument during the Supreme Court hearing in Hansen v R. It also reminds courts engaged with provisions that may impinge on rights to look for indications of legislative intent to limit rights.

Friday, March 17, 2006

Rights and Power

This week’s decision of the European Court of Human Rights (Fourth Section) concerning Application no. 23276/04 by Saddam Hussein draws our attention to some characteristics of rights and jurisdiction.

Ideally, human rights should be enjoyed by everyone, no matter where they happen to be. Rights, however, mean nothing unless they can be enforced. Enforcement involves an assertion and exercise of jurisdiction by an authority with power. Rights ultimately depend on power.

It was argued for the Applicant that he had rights under the European Convention on Human Rights, because he was arrested in an area where jurisdiction was exercised by countries, as part of a coalition, that included countries that are bound by the Convention:

"He maintained that he fell within the jurisdiction of all the respondent States because they were the occupying powers in Iraq, because he was under their direct authority and control or because they were responsible for the acts of their agents abroad. He further argued that he remained within their jurisdiction following the transfer of authority, and his transfer, to the Iraqi authorities in June 2004 because the respondent States remained in de facto control in Iraq."

The Court rejected these submissions because they were not substantiated by evidence of the kind of power and control necessary to establish jurisdiction.

The sort of argument advanced in this case calls to mind the current international expansion of criminal jurisdiction without there being a need for territorial control. There are now numerous examples. One in New Zealand law is s 12C of the Misuse of Drugs Act 1975, which provides that every person commits an offence against this Act who, outside New Zealand, does or omits to do any act that would, if done or omitted in New Zealand, constitute an offence against s 6 (dealing with controlled drugs), s 9 (cultivation of prohibited plants), s 12A (manufacturing, producing, supplying equipment or precursor substances for use in manufacturing or cultivating), s 12AB (knowingly importing or exporting precursor substances for unlawful use), or s 12B (laundering proceeds of drug offences). Consequently, courts in New Zealand have jurisdiction over the proscribed behaviour no matter where in the world it occurs. The offender need not be a New Zealander, and the offence need have nothing to do with New Zealand. Once the offender is in New Zealand territory he can be charged. See also s 7A of the Crimes Act 1961 for other examples of this sort of extension of jurisdiction.

Jurisdiction to punish does not, as these examples show, depend on the exercise of territorial control. Are rights limited by territorial control?

If an Iraqi committed in Iraq what we in New Zealand call a drug dealing offence, and then came to New Zealand, it is likely that he would enjoy the protection of our Bill of Rights, and of the International Covenant on Civil and Political Rights, to which New Zealand is a signatory. So, if evidence had been obtained against him in Iraq by methods that would have contravened his rights if he were in New Zealand, a court in New Zealand would apply New Zealand law to determine the admissibility of that evidence on a charge for the offending against s 12C.

For an analogous illustration, see the rejection by English courts of evidence obtained by torture, including torture in a foreign country, discussed in these blogs on 11 August 2004.

In this sense, then, rights do extend beyond the limits of territorial control of the State in which they may be recognised. Was the European Court wrong to require a demonstration of power and control by the respondent States?

The difficulty faced by the Applicant is that the power to try him is asserted by the Iraqi Government, the existence of which is endorsed by the UN Security Council, and that Government is not a party to the ECHR which establishes an obligation to enforce the rights on which he sought to rely. To enforce those rights, the Applicant would have to be tried by a court in one of the respondent States.

Thursday, March 16, 2006

Legality v Common sense

Should one feel sorry for a person who, having served a sentence of imprisonment, has his convictions quashed on appeal because the evidence against him should not have been ruled admissible?

A concurrent sentence of two years imprisonment for two aggravated robberies was served by the appellant "S", a 15 year-old. Then, on appeal, two High Court judges sitting together held that the evidence of his guilt, which was entirely contained in his statement to the police, should have been excluded, and his convictions were quashed: S v Police 14/3/06, Baragwanath and Heath JJ, HC Auckland CRI 2004-404-515.

In reality, unless his confessions were false, S was guilty and, no doubt, he deserved his sentence. But that is to ignore the rule of law, which in this context means that punishment can only be imposed following due process of law. If by "due process" we mean upon lawful conviction, then S did not receive due process.

The problem arises from practicalities. Sentences take effect before rights of appeal against convictions have been exercised. Trials proceed before rights of appeal against evidential rulings have been exercised. Evidential rulings during a trial must be left for appeal after completion of the trial, otherwise trials would have to adjourn to allow appeals to be heard.

The obvious course, to minimise "false" imprisonment, would be to defer sentencing hearings until appeals had been determined, but that is often impractical: many convicted people would run away, or would have to be denied bail.

If there is no viable alternative to the present procedure, should people like S be compensated? How would compensation be measured? Our assessment of the value of due process may have to be balanced against the harm caused by the offender. The courts may be forced to say that the real remedy is the vindication that follows from the quashing of the conviction: see further, my blogs of 6 and 30 March 2005.

In S v Police, a police officer had told S that he wanted him to point out where burglaries had occurred, so that files could be cleared up, and that he would not be charged with committing them. Unexpectedly, from the officer’s point of view, S said he had committed a couple of aggravated robberies. He was interviewed about those, he confessed to them, and was charged. If his initial mention of them had been a "spontaneous" utterance, his consequential dealings with the police would not have been flawed, as the correct procedures for dealing with young people had been followed thereafter. However, if the initial reference to the robberies was not spontaneous, in the sense that it was made in reliance on the officer’s assurance that he would not be charged, then it was made in circumstances that were in breach of the statutory procedures, and what followed, although correct in itself, could be tainted.

The High Court held that the utterance was not spontaneous, but rather it had been made in reliance on the officer’s assurance. There was an error of procedure surrounding that, so the question became whether the following procedures, which led to the making of the confession, were indeed tainted.

The Court found it necessary, at this point, to consider the nature of causation (para 56 – 67). This came down to asking whether, in the circumstances, the non-spontaneous utterance had been the "effective cause" of the subsequent confession. It had, and because the use of an inadmissible statement to secure a subsequent statement was contrary to the policy of the legislation (para 59), both were inadmissible.

A lot turned, in this case, on how the judges assessed the circumstances. It could easily have been decided that S had, on receiving the advice to which he was entitled, decided to make a clean breast of everything, and that that decision, rather than the earlier indication that he would not be charged, was the effective cause of his confession. In cases like this, where the assessment of the circumstances seems to be finely balanced, it is tempting (but, in law, wrong) to think that the court was influenced by the common sense solution: S had served his sentence and may as well be relieved of the convictions to give him some incentive to obey the law.

Did the absence of any compensation for the "wrongful" imprisonment facilitate this balancing of the circumstances?

Tuesday, March 14, 2006

Inferences of innocence

A commonly advanced ground of appeal against conviction is that the evidence supported an inference of innocence and the judge did not correctly tell the jury how they should deal with inferences.

We have passed through a period when much attention was given to what inferences are and how they should be handled. Things got rather complex as efforts were made to be precise about this. The relationship between the process of drawing inferences, and the process of deciding whether something has been proved, was at the centre of this complexity.

Some facts are proved by direct evidence: for example, a witness says that he saw something happen. Other facts are inferred from direct evidence: the facts that are directly proved suggest that something else is true. In turn, these inferred facts may combine, with other inferred facts, or with directly proved facts, or with a mixture of inferred facts and direct facts, to enable a further inference that something else is true. Wherever an inference occurs, it is usually described as an ordinary process of logical thought.

As to proof, it is relatively easy to see that evidence of directly observed facts may prove those facts, to the necessary standard. If the fact is an element of the alleged offence, then, when the jury considers all the evidence in the case, it must decide whether that element has been proved beyond reasonable doubt. But, in relation to other facts, (and with some exceptions), no particular standard of proof is required. The jury does not have to be instructed by the judge about the standard to which they must be satisfied that inferred facts are proved before they can use them to support other inferences, such as an inference of an element of the offence, as long as, ultimately, the jury tests the proof of the elements of the offence against the standard of beyond reasonable doubt.

So, what about the inferences supporting innocence? In what has been regarded as the leading case on inferences in New Zealand, R v Puttick (1985) 1 CRNZ 644 (CA) the Court summarised the position:

"Inference is simply one of the mental processes which may be used by a jury in carrying out its primary task of assessing the evidence and deciding whether or not it establishes the guilt of the accused beyond reasonable doubt. Where the charge has several essential elements, proof of guilt necessarily involves proof of each of those elements to the same standard. It does not, however, require proof beyond reasonable doubt of every fact which may be relevant to proof of each essential element.
… It must be equally unhelpful to tell jurors that, if proven facts support two inferences of equal weight, they should accept one and reject the other. To draw an inference either way from such facts would be pure speculation. Jurors should not be directed to accept or reject inferences when they have no logical basis for either step."

This could suggest (although we can be sure the Court did not intend this reading) that an inference supporting innocence can neither be accepted nor rejected if it is equal in weight to an inference of guilt.

A clearer account has been given in R v Seekamut 10/7/03, CA82/03:

"If on an objective basis that has regard to all the circumstances, a rational alternative to guilt is not excluded, there must for that reason be a reasonable doubt. But the mere fact that some of the circumstances might arguably permit an inference inconsistent with guilt is not enough. The jury’s function is to assess the whole of the evidence and in so doing may conclude that a suggested alternative is not reasonably tenable."

Similarly, yesterday the Privy Council in Taylor v R (Jamaica) [2006] UKPC 12 (13 March 2006), para 18, held:

"Their Lordships agree with the submission made on behalf of the appellant that in the circumstances of this case it was essential that the judge … spell out the possible inferences to be drawn … and instruct them that they must rule out all inferences consistent with innocence before they could be satisfied that the inference of guilt has been proved correct."

This could be read as suggesting a slightly different approach to that in Seekamut: instead of treating the evidence as all being in a big pool, to be considered in the round to see what ends up being proved, the process alluded to in Taylor seems to be one of deciding first whether inferences of innocence can be ruled out, then, if they are, turning to see whether guilt has been proved. We might, however, reasonably wonder whether this explication is correct, insofar as it seems to place a burden of proof on the defence, and it also seems to make an artificial distinction between stages of the reasoning process. The correct approach would be to tell the jury that, if after considering the evidence, they are left with a reasonable doubt about the accused's guilt, they must find him not guilty.

Because the judge in Taylor failed properly to direct the jury in this regard, the appeal against conviction was allowed and the case remitted to determine whether there should be a retrial.

Monday, March 13, 2006

Metaphysical laws

Can the law have been other than it was understood to have been at the time?

If it can, are we currently operating under a misunderstanding of the law?

Are there points of law that we are mistakenly taking for granted?

If we all think that the law says one thing, can we be wrong?

Can some future court say we were wrong, and that the law said something else?

The first of these questions concerned the Privy Council last week in Bowe v R (Bahamas) [2006] UKPC 9 (8 March 2006). The issue involved detailed analysis of legislation, but in essence the question came down to whether the death penalty was mandatory in the Bahamas in 1973, notwithstanding that cases had been conducted on the basis that it was.

The Privy Council answered the conundrum this way (para 42):

"… it took some time for the legal effect of entrenched human rights guarantees to be appreciated, not because the meaning of the rights changed but because the jurisprudence on human rights and constitutional adjudication was unfamiliar and, by some courts, resisted."

Further, it would be wrong to answer the question by now trying to assess what chance the argument would have had of being accepted in 1973.


"The task is to ascertain what the law, correctly understood, was at the relevant time, unaffected by later legal developments, since that is plainly the law which should have been declared had the challenge been presented then." (ibid)


"It matters little what lawyers and judges might have thought in their own minds: in the context of a codified Constitution, what matters is what the Constitution says and what it has been interpreted to mean. In 1973 there was no good authority contrary to the appellants' argument, and much to support it. In the final resort, the most important consideration is that those who are entitled to the protection of human rights guarantees should enjoy that protection. The appellants should not be denied such protection because, a quarter century before they were condemned to death, the law was not fully understood." (ibid)

At this point, it seems to be only a subsidiary consideration that there was no authority to the contrary as at 1973, as the governing matter ("the final resort") is that those who are entitled to human rights protection should be entitled to enjoy that protection. Question-begging, of course, as the issue was whether the people were (not "are") entitled to that protection.

Not to worry, for in Bowe the death sentences were quashed because the law as at 1973 was that the sentence was discretionary, not mandatory.

This interpretation was therefore carried through to the present pursuant to the legislative provisions. The cases of the two appellants were remitted for consideration of the appropriate penalty.

It seems, consequently, that we are governed by laws that we have not yet discovered, and may not be discovered until we are all dead.

Thursday, March 09, 2006

What a "fair trial" means

Today, the High Court of Australia decided Nudd v R [2006] HCA 9 (9 March 2006), a case with helpful dicta on the meaning of "fair trial". I have recently noted cases concerning what is a substantial miscarriage of justice (see Index), and have described the two ways in which miscarriages of justice may be considered "substantial" for the purposes of the proviso: by depriving the accused of a real chance of an acquittal, or by causing the trial to be unfair.

Nudd recognises that, even though the evidence of guilt may be overwhelming, there may be rare cases where there has nevertheless been a miscarriage of justice because the trial was rendered unfair to the accused: see Gleeson CJ at para 6, Kirby J at 87 and 100, Callinan and Heydon JJ at 158. The other judges, Gummow and Hayne JJ jointly decided that no miscarriage of justice had been demonstrated to have occurred (para 25). Gleeson CJ agreed with that conclusion.

Kirby J treated the outcome aspect (the depriving of the accused of a real chance of acquittal) in the same way as the other judges, holding that on any approach, there was no prospect of acquittal as the prosecution case was overwhelming, but he also gave the most detailed consideration to the other aspect, that of the fairness of the trial. He found this the more difficult point to decide (para 106), because the defects at trial (counsel’s serious incompetence, especially in not knowing the law and in failing to take detailed instructions and consequently to advise the client) were so serious. He held that this case was "borderline" on the question of fairness (para 109), but that the decisive point was that the evidence against the accused was conclusive of guilt.

This might be thought to muddy the distinction between the outcome aspect and the fairness aspect of substantial miscarriage of justice. However, I suggest that Kirby J’s reasoning is essentially that, from the point of view of fairness, the errors were inconsequential, because the defence in the trial had (and could only have) been to put the prosecution to proof, and the judge in her summing up had properly directed the jury on the law.

I have previously suggested that a fair trial is one where the law is accurately applied to the facts determined without bias. Applying this to Nudd, we can say that the errors at trial (counsel’s incompetence) did not cause the law to be applied inaccurately, nor did it cause the jury to be biased against the accused.

Thursday, March 02, 2006

Bad technique!

Sometimes, evidence that the accused has been convicted for committing other offences is admissible to prove that he committed the offence with which he is now charged. Or again, allegations that he committed other offences may be used to prove that he committed this one. Or, yet again, allegations of offences for which he has been acquitted may be used as evidence that he is guilty of this one.

This sort of evidence, called similar fact evidence, should only be allowed to be used in exceptional circumstances, for the obvious reason that it will have a tendency to bias the tribunal of fact (usually the jury) against the accused.

It must be said that the current law on similar fact evidence in New Zealand is in need of clarification. This is largely due to the decision of the Court of Appeal in R v Holtz [2003] 1 NZLR 667; (2002) 20 CRNZ 14 (CA), where the criterion for admissibility was held to be whether the probative value of the similar fact evidence outweighs its illegitimately prejudicial effect:

"One of the problems with evidence of past conduct, whether labelled evidence of bad character, propensity evidence or similar fact evidence, is the tendency to look for principles of admissibility applicable to all such evidence in all circumstances. At a very general level there is the broad principle that to be admissible the evidence must be such that its probative value outweighs illegitimate prejudice to the accused in having adduced evidence of past conduct that might be given undue weight or used improperly in reasoning towards guilt of the crime charged. It is in the application of that general principle in the circumstances of particular cases that difficulties arise. Often this is because the approach adopted in one set of circumstances is taken as the rule to be applied in a quite different case. Because of the wide variation in circumstances in which the issue calls for consideration, the preferable approach in a particular case is that which determines and weighs probative value and potential prejudice in the circumstances. It is necessary to consider the nature of the evidence, what it is sought to prove, what other evidence there is and its relationship and whether the evidence relates to prior proved offending or to concurrent charges, all against the underlying dangers inherent in propensity or bad character evidence." (para 35)

The so-called weighing of probative value against prejudicial effect is problematic conceptually, and has been criticised in the leading Australian case on similar fact evidence, Pfennig v R (1995) 182 CLR 461 per McHugh J on the basis that these were "incommensurables", and the Supreme Court of Canada has agreed with his criticism, in R v Handy (2002) 164 CCC (3d) 481 (SCC); 213 DLR (4th) 385, at paras 148-149. And I have written an article on it: "Probative value, illegitimate prejudice and the accused's right to a fair trial" (2006) 29 Crim LJ 8.

In Phillips v R [2006] HCA 4 (1 March 2006) the High Court of Australia has confirmed that Pfennig continues to be the authority on similar fact evidence, binding on Australian courts. It issued a thinly-veiled rebuke to courts that sought to find reasons for departing from Pfennig, at para 60:

"It must be said at once that it is for this Court alone to determine whether one of its previous decisions is to be departed from or overruled …. Of course, in criminal cases it is often necessary for trial judges and Courts of Criminal Appeal to elaborate upon rulings of this Court; to gather together rules expressed in several cases; to apply rules to different facts; and sometimes to reconsider rules affected by later legislation. Within spaces left by the binding determinations of this Court, trial judges and intermediate courts retain their proper functions …. However, these do not extend to varying, qualifying or ignoring a rule established by a decision of this Court. Such a rule is binding on all courts and judges in the Australian Judicature."

One misinterpretation of Pfennig, alluded to briefly in Phillips at para 62, is that it is appropriate and sufficient to regard similar fact evidence as a form of circumstantial evidence. This is what had occurred in Holtz. See Adams on Criminal Law, Ch2.8.19(5), and my blog entry for 14 October 2004. A danger of that view is that it leaves the process of drawing inferences unelaborated by particular directions to the jury, as authorities on inferences tend to avoid such assistance. It also tempts the court to admit the evidence, as circumstantial evidence is just a category of admissible evidence.

Phillips and Pfennig hold that similar fact evidence must pass a high threshold before it can be admitted (para 79):

"Criminal trials in this country are ordinarily focused with high particularity upon specified offences. They are not, as such, a trial of the accused's character or propensity towards criminal conduct. That is why, in order to permit the admission of evidence relevant to several different offences, the common law requires a high threshold to be passed. The evidence must possess particular probative qualities; a strong degree of probative force; a really material bearing on the issues to be decided. That threshold was not met in this case. It was therefore necessary that the allegations, formulated in the charges brought against the appellant, be separately considered by different juries, uncontaminated by knowledge of other complaints. This is what Pfennig and other decisions of this Court require. To the extent that O'Keefe [a Queensland Court of Appeal decision critical of the High Court of Australia's judgments in Pfennig] or other authority suggests otherwise, it does not represent the law. No other outcome would be compatible with the fair trial of the appellant."

Phillips had been charged with 8 counts of sexual offending, and had unsuccessfully sought severance of those. Joinder was permitted on the basis that the evidence on each charge was admissible on the others, as evidence of similar facts. The High Court summarised the evidence and its conclusion in this way (para 56):

"The similarities relied on were not merely not "striking", they were entirely unremarkable. That a male teenager might seek sexual activity with girls about his own age with most of whom he was acquainted, and seek it consensually in the first instance, is not particularly probative. Nor is the appellant's desire for oral sex, his approaches to the complainants on social occasions and after some of them had ingested alcohol or other drugs, his engineering of opportunities for them to be alone with him, and the different degrees of violence he employed in some instances. His recklessness in persisting with this conduct near other people who might be attracted by vocal protests is also unremarkable and not uncommon."

Bad technique, indeed, as it got Phillips to court.

The trial judge, and the Queensland Court of Appeal, had reasoned that so many similar complaints could not have arisen by chance, so together they had credibility. The High Court was not so slap-dash. It identified the issue on which the challenged evidence was relevant as being consent, and it pointed out that the non-consent of one complainant could not possibly prove that another had not consented.

One thing this case illustrates is the way judges can lose their reasoning powers in cases of alleged sexual misconduct. There is, in other words, a grave danger of judicial bias (probably unconscious bias) in such cases. In those circumstances, clear rules, rather than discretions, are needed concerning the admissibility of evidence of other alleged misconduct. The Pfennig rule is that similar fact evidence is not admissible unless there is no reasonable view of it that is consistent with the accused’s innocence. It must have strong probative force, a really material bearing on the issues to be decided; its probative force must clearly transcend its merely prejudicial effect; it must have a sufficient nexus, some specific connection, with the issues; its probative force must be such as to make it just to admit it (Phillips, para 54). None of those criteria were met in Phillips (para 55).

It is sad to note that in New Zealand, the Evidence Bill proposes an approach to similar fact evidence (or, in its terminology, "propensity evidence") that applies the probative value/prejudicial effect weighing, criticism of which is noted above. Clause 39(1) of the Bill provides:

"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."

This proposal does nothing to improve our law on this point.