Monday, April 28, 2008

Gymnasium improprieties

Another case that got diverted to the irrelevant question of when the police can use sniffer dogs is R v AM [2008] SCC 19 (25 April 2008), in which the Court’s decision released the same day, R v Kang-Brown (see last blog), was applied.

Police officers carried out a search of a school with the permission of the headmaster who had given them a long-standing invitation to do so. There were no reasonable grounds to believe that drugs would be found on this particular day. The students were told by the headmaster to remain in their classrooms during the search. Using a sniffer dog called Chief, bags in the gymnasium were examined and Chief indicated that there were drugs in a particular backpack.

The admissibility of the evidence - variously described as 10 bags of marijuana (para22), 5 bags (para 109) or several bags (para 154), allegedly in possession for trafficking, and about 10 magic mushrooms, the subject of an allegation of possession simpliciter) – was determined by balancing various policy matters. These do not need to be discussed here, although they are of great public interest. It was held, in each of the courts in which this case was considered, that the evidence was inadmissible.

On the misconduct side of the balance, the only relevant point could be the absence of grounds for the search until the dog indicated the presence of the drugs. There is really no other impropriety: the police were on the premises at the invitation of the occupier who was undoubtedly in loco parentis, during school hours, in relation to the pupil whose bag was searched. There is no need for grounds to exist when a search is carried out by consent, so, on this view, there was no misconduct at all.

So, why did the SCC uphold the exclusion of the evidence? By finding that the Charter rights of every student in the school had been violated (para 15). And,

“62 The backpacks from which the odour emanated here belonged to various members of the student body including the accused. As with briefcases, purses and suitcases, backpacks are the repository of much that is personal, particularly for people who lead itinerant lifestyles during the day as in the case of students and travellers. No doubt ordinary businessmen and businesswomen riding along on public transit or going up and down on elevators in office towers would be outraged at any suggestion that the contents of their briefcases could randomly be inspected by the police without “reasonable suspicion” of illegality. Because of their role in the lives of students, backpacks objectively command a measure of privacy.

“63 As the accused did not testify, the question of whether or not he had a subjective expectation of privacy in his backpack must be inferred from the circumstances. While teenagers may have little expectation of privacy from the searching eyes and fingers of their parents, I think it obvious that they expect the contents of their backpacks not to be open to the random and speculative scrutiny of the police. This expectation is a reasonable one that society should support.”


These remarks are controversial, and they contrast with those of the dissenters, Deschamps and Rothstein JJ at 119, 128 – 140. The difference reflects how rights arguments can become too abstract to remain in touch with societal needs.

This is not to say that exclusion of different things found would always follow in cases that were, in other respects, similar. As Binnie J (delivering the judgment of himself and McLachlin CJ) observed at 37, the seriousness of the detected offending is a relevant consideration. Apparently, in this case, the risk posed to other pupils, and the likely consequences of detection to the offender, did not outweigh the harm that would be caused to the pupil by breach of what was held to be his privacy right in respect to the contents of his backpack.

Opinions will vary about whether the Court has successfully “bridged the gap between law and society” (as Aharon Barak puts the judicial role in “The Judge in a Democracy” (2006)) or whether it has increased that gap.

What a cute doggie!

In R v Kang-Brown [2008] SCC 18 (25 April 2008) the accused got off a bus and his behaviour caused an undercover police officer to suspect that he might have drugs in a bag he was carrying. There were no reasonable grounds to search him. The officer got him into conversation, then identified himself and asked if he would consent to a search of the bag. An initial appearance of consent changed when the officer went to reach into the bag, and Mr Kang-Brown pulled the bag away. The officer, as a result of this withdrawal of consent, called over a dog handler, and the dog indicated the presence of drugs in the bag. Seventeen ounces (0.476 kg) of cocaine was in the bag, and Mr Kang-Brown was charged with possession of it for trafficking.

Of course, one can summarise the facts of a case in various ways. There is a risk in casting them in the wrong light and departing from the findings in the court where they were determined (see per Bastarache J, dissenting at 202).

But the essentials are that there were no sufficient grounds for a lawful search at the time the decision was made to call the dog handler.

Some of the Judges in the Supreme Court of Canada wanted to change the law so that the grounds for a search in these circumstances would more easily exist. This was because the focus of the case was seen as the use of the sniffer dog (whose name is Chevy).

It is not inevitable that that should have been the focus of the case. There were elements of illegality to the search before the dog was involved: the absence of grounds and the (albeit brief) detention while the dog was brought over and put to work. In terms of the right not to be subjected to unreasonable search, this did amount to a breach. One would expect that to bring into play the balancing exercise necessary to determine the admissibility of the evidence. Surprisingly, the evidence of this relatively (compared to the breach of rights) serious offence was excluded by the majority McLachlin CJ, Binnie, LeBel, Fish, Abella and Charron JJ.

It is no surprise, given the nature of law, that this mundane incident, with its trivial breach of rights, was worked up into a huge legal controversy about the use of sniffer dogs in public places. The focus became the common law legality of search by sniffer dogs: should the Court decide this before Parliament does, and, if so, what grounds would make such searches lawful? Plainly, reasonable grounds to believe would be too high, as the use of the dog would be rendered superfluous and the search by the enforcement officer could proceed. Mere suspicion may seem too low, once one has decided (as all Judges here did) that the dog’s action in sniffing does amount to a search, although Bastarache J was prepared to come close to this with his proposal of a generalised suspicion as sufficient grounds. The solution, reasonable suspicion, was favoured by McLachlin CJ, Binnie, Deschamps and Rothstein JJ. This did not appeal to the other four judges (LeBel, giving the reasons of himself and Fish, Abella and Charron JJ), who did not think it appropriate to downgrade the reasonable and probable cause requirement (para 16).

The difficulties arise once one says that the use of the dog was a search. On the facts here it clearly was, because it was focused on the contents of a particular bag that, in effect, the police had seized. But it does not follow that routine sniffing around people at a transport hub amounts to search. Most people would think it was rather cute.

Saturday, April 26, 2008

Propensity evidence: admissibility and Bayes Theorem

The High Court of Australia has given detailed consideration to how evidence of an accused’s propensity should be handled, in three jointly heard appeals: HML v R; SB v R and OAE v R [2008] HCA 16 (24 April 2008).

The seven Judges delivered seven judgments. Unfortunately, and a trace of regret about this is evident in the remarks of Kirby J at para 82, the issue of real general interest was not unanimously decided because of the different approaches taken. This issue is, what role, if any, the standard of proof beyond reasonable doubt has in connection with proof of the alleged propensity.

The admissibility rule in Australia
I say that was the issue of general interest, because much of the judgment is concerned with the nearly-extinct rule in Pfennig v R [1995] HCA 7, (1995) 182 CLR 461. This is, in essence, a rule about the probative value that propensity evidence must have in the context of a particular case before it can be ruled admissible. Only if the judge finds that, assuming the propensity evidence is accepted as true, and assuming the other prosecution evidence in the case is also accepted, the effect of the propensity evidence would be to exclude any reasonable doubt that would otherwise exist about the accused’s guilt, can the evidence be said to have sufficient probative value to be admitted. This affects the more generally applicable requirement that evidence must be excluded if its probative value is outweighed by its illegitimately prejudicial effect, by replacing the discretion with a rule (Gleeson CJ at 15). Hayne J discussed the application of this rule at 112 – 118. Gummow J and Kirby J agreed (41, 51).

Standard of proof of propensity evidence
It is often claimed that the only thing that needs to be proved beyond reasonable doubt in a criminal trial is the guilt of the accused. Each element of the offence must be proved beyond reasonable doubt. Policy has supported an evidential rule that the voluntariness of a confession must be proved beyond reasonable doubt. It is by no means clear that evidence of the accused’s propensity has to be proved beyond reasonable doubt.

Propensity evidence is, after all, a form of circumstantial evidence, and circumstantial evidence does not carry a standard of proof. But the view favoured by Kirby J is that propensity must be proved beyond reasonable doubt. He summarised the approaches of the other members:

“82 … Heydon J considers that it is unnecessary to decide whether the criminal standard of proof has a wider application in cases such as the present, because whatever the case, the judges' summing up in each of the three appeals included a direction incorporating the criminal standard[Reasons of Heydon J at [339], [376], [395]-[396]]. This is so, notwithstanding that the ostensible purpose of these appeals was to settle that issue with an authoritative statement by this Court. Crennan J endorses a principle similar to that stated by Gleeson CJ[Reasons of Crennan J at [477]], although she ultimately relies on the conclusion of Heydon J that directions incorporating the criminal standard were in fact given in the trial of OAE[Reasons of Crennan J at [483]]. It is apparent from the analysis of Kiefel J[See reasons of Kiefel J at [512]-[513]] that her Honour considers that, because the relevant evidence was relied upon for a purpose other than "disclosing [OAE's] sexual interest" in the complainant[Reasons of Kiefel J at [517]], a direction as to the criminal standard of proof was not required.”

Gleeson CJ held at 31 that the standard of proof beyond reasonable doubt applies only to indispensable facts, and Crennan J at 477 agreed. Hayne J held at 196 that where propensity evidence is admitted as an essential step in the reasoning (and Pfennig indicates that, since it is the admissible propensity evidence that removes any reasonable doubt about the accused’s guilt, it is essential) it must be proved beyond reasonable doubt.

Kirby J held that propensity evidence must be proved beyond reasonable doubt:

“[83] I support the conclusion of Hayne J. It is necessary and desirable for this Court to resolve the issue concerning directions to be given on the standard of proof applicable to evidence of "uncharged acts" for the guidance of trial judges and intermediate courts still observing the common law in this respect. I would hold that wherever such evidence has been admitted under the Pfennig test and is propounded as relevant to a step in reasoning towards the accused's guilt of an offence charged, the jury must be told that they are to be satisfied beyond reasonable doubt that such evidence has been proved before they reason that the accused is guilty on the basis of it[Reasons of Hayne J at [132], [244]]. This is the essential quid pro quo for allowing such evidence to be placed before the jury at all. It is mandated by considerations of law but also of basic fairness, considered in the context of an accusatorial trial that still observes rules of particularity as to the offences charged.”

The Australian approach to propensity evidence was devised to avoid a perceived risk that judicial directions on the proper use of such evidence will not necessarily be effective. Hayne J put it this way at 116:

“… Judicial directions about use of such evidence have not hitherto been seen, and should not now be seen, as solving that problem. The possible uses to which evidence of other acts (which does not meet the Pfennig test) may be put are inevitably so intertwined that they cannot be sufficiently disentangled to give useful instructions to the jury. And even if the various uses of such evidence could be disentangled, that would leave unaddressed and unanswered the further difficulty that the jury may attach more significance to the evidence of other acts than they should. That is why the solution that has been adopted for so long by the common law, reflected in this Court's decision in Pfennig, is to limit the circumstances in which evidence of other discreditable acts of an accused will be received in evidence.”

He summarised the Court’s position on the standard of proof of propensity evidence that demonstrated that the accused had a sexual interest in the respective complainant in these appeals:

“[247] …It is important to recognise, however, that at least a majority of the Court[Gummow J at [41], Kirby J at [63], Kiefel J at [506] and these reasons at [132]] is of the opinion that "[i]n the ordinary course a jury would be instructed by the trial judge that they must only find that the accused has a sexual interest in the complainant if it is proved beyond reasonable doubt"….”

Logical reasoning
Since the choice of the standard beyond reasonable doubt for propensity evidence is a policy choice, it should not be criticised for being illogical. But it is illogical.

It imposes on the jury an “if and only if, then …” form of reasoning: if and only if the propensity evidence is true, then the accused is guilty on the present charge. It is more appropriate to apply a logic of conditional probabilities to this situation (and, indeed, to most decisions a jury has to make). In the absence of concessions or admissions, certainties don’t arise in trials. Even fingerprint evidence is given in the form of opinion, and testimony involving any form of measurement inevitably involves a range of error. The truth of testimony is appropriately thought of as a probability. Evidence of propensity will be assessed by a juror as being more or less likely to be true, that is, as having a probability of being true.

The majority approach in HML v R, requiring this probability to equate with beyond reasonable doubt, is too restrictive. Conditional probability reasoning, as expressed in Bayes’ Theorem, involves considering the likelihood of getting the assessed probability of the propensity, given the accused is guilty on the present charge, compared to the likelihood of getting that assessed probability of the propensity, given that the accused is innocent on the present charge.

I have discussed the application of Bayes’ Theorem to propensity evidence in a draft paper, available on this site via the link on the right to “selected papers available here”.

This question of whether some or any facts need to be proved beyond reasonable doubt before a verdict of guilty can be returned has given rise to controversy: see for example Chamberlain v R (No 2) (1984) 153 CLR 521 (HCA), Shepherd v R (1990) 170 CLR 573 (HCA), Thomas v R [1972] NZLR 34 (CA), R v Puttick (1985) 1 CRNZ 644 (CA), R v Holtz [2003] 1 NZLR 667; (2002) 20 CRNZ 14 (CA), R v Morin (1988) 44 CCC (3d) 193, and R v MacKenzie (1993) 78 CCC (3d) 193 (SCC).

A point that has led to confusion is the need for a juror to be sure (beyond reasonable doubt) of what fact he accepts; this is not to say that the fact itself establishes anything beyond reasonable doubt. For example, a witness may say that on examination of a bullet there is an 80% chance that it was fired from a specified gun. To require the juror to be sure, beyond reasonable doubt, that the result “80%” is correct, is not the same as requiring the juror to be sure, beyond reasonable doubt, that the bullet came from that gun. Once he has accepted the testimony, the juror can assess the likelihood of the result “80%” being obtained, given that the accused is guilty, compared with the likelihood of getting the “80%” result, given that the accused is innocent.

It is better, when trying to grapple with the role of proof beyond reasonable doubt, to think of the reasoning as following the logic of conditional probabilities, rather than to use the traditional metaphors of ropes and chains of reasoning. This is because they are too vague. In HML v R the rope metaphor was not used by any of the Judges, but chains of reasoning were spoken of.

Friday, April 25, 2008

Criminal and civil self-defence

Some comments on the difference between self-defence in criminal and civil law are worth noting here. They occur in a civil action in battery: Ashley v Chief Constable of Sussex Police [2008] UKHL 25 (23 April 2008).

The relevant issue was whether in civil law it is necessary that a belief in the need to use any force in self-defence has to be a reasonable belief. Broadly, in criminal law reasonableness on this point is not necessary, it being sufficient that the belief was honestly held. In criminal law (again, generally) reasonableness does have a role in self-defence, by limiting the amount of force permitted to reasonable force. The move to subjectivity on the element of belief came, as Lord Neuberger notes at para 88, as a result of the work of the Criminal Law Revision Committee, and, while having some persuasive value outside criminal law, is not necessarily applicable.

Lord Bingham observer, para 3, that the ends of justice differ in criminal trials and civil actions. This was elaborated by Lord Scott at 17 – 18:

“… One of the main functions of the criminal law is to identify, and provide punitive sanctions for, behaviour that is categorised as criminal because it is damaging to the good order of society. It is fundamental to criminal law and procedure that everyone charged with criminal behaviour should be presumed innocent until proven guilty and that, as a general rule, no one should be punished for a crime that he or she did not intend to commit or be punished for the consequences of an honest mistake. There are of course exceptions to these principles but they explain, in my opinion, why a person who honestly believes that he is in danger of an imminent deadly attack and responds violently in order to protect himself from that attack should be able to plead self-defence as an answer to a criminal charge of assault, or indeed murder, whether or not he had been mistaken in his belief and whether or not his mistake had been, objectively speaking, a reasonable one for him to have made. As has often been observed, however, the greater the unreasonableness of the belief the more unlikely it may be that the belief was honestly held.

“[18] The function of the civil law of tort is different. Its main function is to identify and protect the rights that every person is entitled to assert against, and require to be respected by, others. The rights of one person, however, often run counter to the rights of others and the civil law, in particular the law of tort, must then strike a balance between the conflicting rights. Thus, for instance, the right of freedom of expression may conflict with the right of others not to be defamed. The rules and principles of the tort of defamation must strike the balance. The right not to be physically harmed by the actions of another may conflict with the rights of other people to engage in activities involving the possibility of accidentally causing harm. The balance between these conflicting rights must be struck by the rules and principles of the tort of negligence. As to assault and battery and self-defence, every person has the right in principle not to be subjected to physical harm by the intentional actions of another person. But every person has the right also to protect himself by using reasonable force to repel an attack or to prevent an imminent attack. The rules and principles defining what does constitute legitimate self-defence must strike the balance between these conflicting rights. The balance struck is serving a quite different purpose from that served by the criminal law when answering the question whether the infliction of physical injury on another in consequence of a mistaken belief by the assailant of a need for self-defence should be categorised as a criminal offence and attract penal sanctions. To hold, in a civil case, that a mistaken and unreasonably held belief by A that he was about to be attacked by B justified a pre-emptive attack in believed self-defence by A on B would, in my opinion, constitute a wholly unacceptable striking of the balance. It is one thing to say that if A's mistaken belief was honestly held he should not be punished by the criminal law. It would be quite another to say that A's unreasonably held mistaken belief would be sufficient to justify the law in setting aside B's right not to be subjected to physical violence by A. I would have no hesitation whatever in holding that for civil law purposes an excuse of self-defence based on non existent facts that are honestly but unreasonably believed to exist must fail….”


There was no disagreement about this. Lord Carswell added, at 76:

“…The criminal law has moved in recent years in the direction of emphasising individual responsibility. In pursuance of this trend it has been held in different areas of the criminal law that it is the subjective personal knowledge or intention of the accused person which has to be established: see, e.g., R v Morgan [1976] AC 182, R v Kimber [1983] 1 WLR 1118. So in the case of self-defence it has been held that that if a defendant is labouring under an honest mistake, even if it is regarded as unreasonable, the defence is open to him: R v Williams (Gladstone) [1987] 3 All ER 411. The function of the civil law is quite distinct. It is to provide a framework for compensation for wrongs which holds the balance fairly between the conflicting rights and interests of different people. I agree that that aim is best met by holding that for the defence of self-defence to succeed in civil law the defendant must establish that he honestly believed in the existence of facts which might afford him that defence and that that belief was based upon reasonable grounds. …”

Another aspect of this case is the decision whether to stay the civil action. The details need not be considered here, but it was a policy decision, and as such it is notable that, although there was some disagreement over this issue, both sides found support in dicta of Cooke P (as he then was, subsequently Lord Cooke) in Re Chase [1989] 1 NZLR 325 (CA).

Thursday, April 24, 2008

Strength, rights, remedies

Sometimes, rights may be strong, but remedies weak.

Virginia v Moore [2008] USSC 06-1082 (23 April 2008) illustrates strong State rights, weak State remedies, and weak Constitutional rights.

In the circumstances that were held to exist, State law required a police officer to issue a summons, and not to arrest, Mr “Chubs” Moore, who had been apprehended driving while his licence was suspended. Instead, he was arrested for that offence. After a little delay, over which he did not complain in this appeal, he was searched and 16 g crack cocaine was found in his possession. He was charged with possession of the drug with intent to distribute it, and eventually he was sentenced to 5 years’ imprisonment. The Virginia Supreme Court held that since the arrest was unlawful, the search violated the Fourth Amendment, and the evidence should have been ruled inadmissible.

To avoid the unpalatable conclusion that the evidence had to be excluded, the US Supreme Court applied a line of its cases and held that, notwithstanding the illegality of the arrest in Virginia State law, the arrest was constitutionally reasonable.

The reasoning here is that, while the State may give its citizens protections greater than those required by the Constitution, that does not affect the interpretation of the Fourth Amendment. Scalia J (Roberts CJ, Stevens, Kennedy, Souter, Thomas, Breyer and Alito JJ joining – Ginsburg J concurred separately) put it this way:

“In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable….e.g., Devenpeck v. Alford, 543 U. S. 146, 152 (2004); Gerstein v. Pugh, 420 U. S. 103, 111 (1975); Brinegar v. United States, 338 U. S. 160, 164, 170, 175–176 (1949).

“ Our decisions counsel against changing this calculus when a State chooses to protect privacy beyond the level that the Fourth Amendment requires. We have treated additional protections exclusively as matters of state law. In Cooper v. California, 386 U. S. 58 (1967), we reversed a state court that had held the search of a seized vehicle to be in violation of the Fourth Amendment because state law did not explicitly authorize the search. We concluded that whether state law authorized the search was irrelevant. States, we said, remained free “to impose higher standards on searches and seizures than required by the Federal Constitution,” id., at 62, but regardless of state rules, police could search a lawfully seized vehicle as a matter of federal constitutional law.”


The discussion has thus shifted from the lawfulness of the arrest (unlawful in State law, but lawful in Federal law) to the reasonableness of the search. In Virginia State law, improperly obtained evidence is, according to Scalia J, not usually excluded, which is why Mr Moore was convicted. He was arguing that the generous protections given to individuals by Virginia’s law should be accompanied, not by a balancing exercise, but by a “bright line” rule excluding the evidence.

Scalia J held that the search was not unconstitutional, and added:

“If we concluded otherwise, we would often frustrate rather than further state policy. Virginia chooses to protect individual privacy and dignity more than the Fourth Amendment requires, but it also chooses not to attach to violations of its arrest rules the potent remedies that federal courts have applied to Fourth Amendment violations. Virginia does not, for example, ordinarily exclude from criminal trials evidence obtained in violation of its statutes. … Moore would allow Virginia to accord enhanced protection against arrest only on pain of accompanying that protection with federal remedies for Fourth Amendment violations, which often include the exclusionary rule. States unwilling to lose control over the remedy would have to abandon restrictions on arrest altogether. This is an odd consequence of a provision designed to protect against searches and seizures.”

So, Mr Moore’s argument for strong remedies for strong rights was defeated by the Court’s preference for strong remedies for weak rights.

Spot the difference

The actual and potential harm caused by an offence is a significant consideration in sentencing. It would be natural to expect that drug offending carries various levels of harm, and that the nature of the drug and its quantity are relevant to assessing the harm caused by a particular offence. However, in the absence of specific legislative guidance, it may be difficult to convince a court that an offence in respect of one drug is less serious than the same offence in respect of another drug.

In Adams v R [2008] HCA 15 (23 April 2008) this argument was presented but the Court held that there was an insufficient foundation, legal or factual, for it to be considered.

Gleeson CJ, Hayne, Crennan and Kiefel JJ jointly, after a slightly inaccurate summary in para 3 (inaccurate in that the contrast between the two legislative schemes mentioned there is not as great as suggested because harm-based arguments are available under each, and the classification of MDMA in New Zealand is not as the Court was advised), observed that there are difficulties in contending that offending involving one drug in a particular category poses more or less harm than the same offending involving another drug in that category:

“[9] The appellant's entire argument is based on the factual assertion that ‘MDMA ... is less harmful to users and to society than heroin.’ The quantities in contemplation for the purposes of that comparison are unspecified. How much MDMA is being compared with how much heroin? Other aspects of the meaning of the proposition are equally unclear. Harm to users and society is a protean concept. Counsel had understandable difficulty explaining exactly what the proposition means, let alone demonstrating, by evidence available to the sentencing judge or matters of which a court could take judicial notice, that it was true. What kinds of user, and what kinds of harm to society, are under consideration? The social evils of trading in illicit drugs extend far beyond the physical consequences to individual consumers. As the Victorian Court of Appeal pointed out in R v Pidoto and O'Dea [2006] VSCA 185; (2006) 14 VR 269 at 282 [59], ‘questions arise as to whether the perniciousness of a substance is to be assessed by reference to the potential consequences of its ingestion for the user, or its effect upon the user's behaviour and social interactions, or the overall social and economic costs to the community.’ Furthermore, in relation to some of these matters, scientific knowledge changes, and opinions differ, over time. Generalisations which seek to differentiate between the evils of the illegal trade in heroin and MDMA are to be approached with caution, and in the present case are not sustained by evidence, or material of which judicial notice can be taken.”

In New Zealand there has been some recognition of differences between drugs of the same class. In Albon v R 26/6/96, CA544/95 a scientific report was used to compare the potency of MDA with other class A controlled drugs, and in R v O’Donnell 1/8/96, CA101/96, a distinction was recognised between drugs of class A, according to whether they were addictive or non-addictive. But in R v Stanaway [1997] 3 NZLR 129; (1997) 15 CRNZ 32 (CA) it was held that the criminality must be assessed in the circumstances of each particular case and that potential for addiction may not be the predominant measure of perniciousness in the light of physical and psychological effects and other social considerations. In R v Arthur [2005] 3 NZLR 739; (2005) 21 CRNZ 453 (CA), the Court recognised, at para 13, that the distinction between the hallucinogenic and the non-hallucinogenic Class A drugs may be relevant, and for the purposes of the case recognised that methamphetamine was non-hallucinogenic.

The point made by the High Court of Australia in Adams v R is that submissions of this nature must be supported by evidence, before the court will even begin to grapple with how it should make distinctions between similar offending in respect of different drugs.

Monday, April 21, 2008

And then there were ten ...

Again the New Zealand Supreme Court has worked its way around the statutory prohibition on reviewing a judge’s exercise of discretion to continue a trial with only 10 jurors: Wong v R [2008] NZSC 29 (18 April 2008). The earlier occasion on which the Court did this was Rajamani v R (blogged here 24 August 2007).

The statutory prohibition on appellate review of the exercise of this discretion is in s 374(8) of the Crimes Act 1961, and the discretion to continue a trial with 10 jurors is in s 374(4A):

“(4A) The Court must not proceed with fewer than 11 jurors except in the following cases:
(a) If the prosecutor and the accused consent:
(b) If the Court considers that, because of exceptional circumstances relating to the trial (including, without limitation, the length or expected length of the trial), and having regard to the interests of justice, the Court should proceed with fewer than 11 jurors; and in that case—
(i) The Court may proceed with 10 jurors whether or not the prosecutor and the accused consent:
(ii) The Court may proceed with fewer than 10 jurors only if the prosecutor and the accused consent.


“(8) No Court may review the exercise of any discretion under this section.”


Repeating the approach in Rajamani, namely distinguishing between the “assessment” of whether the facts amounted to exceptional circumstances, a matter that could be reviewed on appeal, from the judge’s “consideration” that the trial should continue with 10 jurors, a discretion that could not be reviewed on appeal because of subsection (4A)(8), the Court held that exceptional circumstances did not exist here.

This was a 4 week trial, a length not out of the ordinary, although the retrial would be shorter because certain defence applications had been resolved, interpreters were needed, there were 41 witnesses (30 giving oral evidence), there were no complainants to consider (this being a drug trial), there was no real likelihood of witnesses being unavailable, and it would not be particularly difficult for the system to accommodate a retrial.

No one will say so, but this is an example of the Court rendering ineffective an unjust legislative provision. The Court has no power to declare a statute invalid, or to refuse to apply a statute, and there is not even a statutory power to declare that a statute is inconsistent with the Bill of Rights, although such a power is asserted (Hansen v R illustrates this, blogged here 20 February 2007). Section 374(8) could plainly be unjust, as a decision to continue a trial with 10 jurors without the consent of the defence would, if wrong, be a substantial miscarriage of justice; it is essential that a wrongful continuation of such a trial be able to be corrected on appeal. Therefore the Court interprets the wide terms of subsection (8) narrowly, by limiting “any discretion” to the decision that is made once exceptional circumstances exist.

This approach to the phrase “exceptional circumstances relating to the trial” in subsection (4A)(b), treating it as an assessment of facts, not as a discretion, is also applicable to the other phrase in (b), “the interests of justice”. If the judge incorrectly assesses (or, in the terms of the subsection, has regard to) the interests of justice, that too should be able to be corrected on appeal. Since the position that the court “considers” to arise from its assessments, in (4A), will be consistent with those assessments, there is really nothing in (4A) that cannot be reviewed on appeal.

It could be said that there is a residual discretion in the appellate court to intervene wherever necessary to prevent a substantial miscarriage of justice. This is how it was put in R v Hookway [2007] NZCA 567 at para 136. But this jurisdictional approach is less powerful, in this context, than the interpretative one, because it is at the mercy of what the statute leaves as “residual”. That itself is a matter of interpretation.

Friday, April 18, 2008

Straddling the point

By the slimmest of margins the Supreme Court of Canada has just avoided making an awful mistake.

Evidence can be admissible without it having to support only one side of a case. This elementary observation is plainly true. Many items of prosecution evidence may be consistent with both the guilt and the innocence of the accused, and only when the whole of its evidence is adduced may the prosecutor be able to say that this proves guilt beyond reasonable doubt.

It is often possible to express the probative value of an item of evidence as a probability, or a likelihood, of the proposition it is advanced to support. This can also be termed the weight of the evidence.

In Gibson v R [2008] SCC 16 (17 April 2008) the accused was charged with driving with excess alcohol in his system, and the issue was whether evidence that his real alcohol level could have been somewhere in a range extending from below, to above, the statutory limit, was admissible. The statutory scheme provided a presumption that the level was as indicated in a test result, but this was rebuttable by evidence that tended to show that the driver’s level was below the limit.

The sort of evidence the defence wanted to rely on was called “straddle evidence”, because it showed a range of possible levels that straddled the limit.

It should have been obvious that this evidence was no different from any other evidence that has a greater or lesser tendency to support the defence in its aim of raising a reasonable doubt. Plainly, where the evidence only has a slight tendency to support an inference of innocence, and is more a basis for an inference of guilt, it will weigh in favour of guilt. In such a case, it is likely to be insufficiently relevant to a defence proposition to be admissible as defence evidence (while being admissible – if the prosecution had obtained it, which of course here they hadn’t – for the prosecution).

In Gibson the defence expert indicated a range between 40 and 105 (the limit is 80). The majority held that this evidence was admissible: McLachlin CJ, LeBel and Fish JJ jointly, and Binnie and Deschamps JJ jointly. However, although admissible, these Judges differed on whether it was insufficient to raise a reasonable doubt. Binnie and Deschamps JJ held that it was sufficient to do so as the “prevailing direction” of the range was under the limit. But the other three Judges who agreed on the admissibility point held that the range of values and the extent to which the range exceeded the limit indicated that the evidence was insufficient to raise a reasonable doubt.

The awful mistake was made by the minority, Bastarache, Abella, Charron and Rothstein JJ (jointly, delivered by Charron J). They held that instead of being evidence in support of a reasonable doubt, straddle evidence was an attack on the presumption itself, and was therefore inadmissible. On this view, straddle evidence only tended to show that the accused fell into the range of people targeted by the legislation (para 33), and that it did not tend to show that the driver in question was not in this range. In order to raise a reasonable doubt, the driver could only adduce evidence of his actual alcohol consumption.

It is difficult to see why evidence that supports an inference of innocence (to the extend sufficient to raise a reasonable doubt) should be seen as an attack on the rebuttable presumption itself. The reasons are given in para 32 (and see also 19 – 20), and essentially come down to saying that Parliament must have taken into account the possible range of actual alcohol levels in drivers’ systems when it established the limit and the rebuttable presumption, and so the presumption could only be rebutted by evidence other than that based on metabolic rates of alcohol elimination in the population at large.

That, however, is to overlook the point that the evidence concerning the population at large must relate to the facts of the case: to the driver and the amount of his actual consumption (see McLachlin CJ, LeBel and Fish JJ at 58). Otherwise, the expert evidence has no weight. The minority’s mistake was to overlook the fact that it would be impossible for the defence to rebut the presumption by evidence of the driver’s consumption, without also adducing evidence of the level of alcohol that one would expect to find, and that could only be based on evidence from the population a large which would inevitably involve metabolism.

Imagine that the defence called evidence that satisfied the minority’s criterion: that the driver’s level fell within a range that was entirely below the limit. The prosecution might then seek to rebut this by calling evidence that his range straddled the limit. Why should straddling evidence be allowed to prove the driver was over, but not under, the limit? The alternative, that neither side should have recourse to straddling evidence, would be untenable because it would prevent the prosecution contesting the defence evidence.

But that’s not all. None of the judgments refer to the correct way in which the proposed evidence would be given. In accordance with Bayes’ Theorem, the expert should present the findings as a likelihood ratio: the probability of getting the results, given that the defendant was guilty, divided by the probability of getting the results, given that he was not guilty. The findings concerning straddling are only part of the data behind the result that the expert should report to the court. The minority’s restrictive approach would limit expert testimony to occasions where the testing indicated a very low posterior ratio of probability of guilt to probability of innocence, and this would be inconsistent with the presumption of innocence and the requirement that the defence only raise a reasonable doubt.

As an alternative to the rebuttable presumption, Canada may find more attractive the approach adopted in jurisdictions where there is a conclusive presumption. In para 76 LeBel J mentioned the issue of limitation on the presumption of innocence, but it is clear that such limitation would be demonstrably justified in a free and democratic society. That is the test in New Zealand under s 5 of the Bill of Rights, and we have a conclusive presumption in this context: s 77 Land Transport Act 1998; no one has as yet argued that this is unjustified.

And on a completely different matter, dicta in this case (para 50 – 51) illustrate a point that has been of some interest in another context: a requirement that the defence “show” something, in order to rebut a presumption, is not the same as a requirement that the defence “prove” that thing. The defence can “show” the thing (innocence) by raising a reasonable doubt, and this is not the same as “proving” it. See Hansen v R (blogged here 20 February 2007).

Monday, April 14, 2008

The fairness of inequality

Should the defence always be given the same access as the prosecution has to the criminal histories of people on the jury panel?

In R v King and Stevens [2008] NZCA 79 (10 April 2008) it was held that it was lawful for the police to access the criminal records of potential jurors, and that it was lawful for this information to be passed to prosecuting counsel. It was further held that where fair trial concerns warrant it, such information must be disclosed to the defence. One member of the Court, Robertson J, held that the defence should always be given this information, but the majority (William Young P and Chambers J) took a more restrictive approach, giving as examples of where disclosure to the defence would be appropriate (para 125):

“(b) Counsel for an accused serving police officer may wish to exclude any juror who may be thought to have an anti-police attitude. …

“(c) Counsel for a man accused of murdering a burglar and who is running self-defence and provocation may prefer a jury which does not include too many convicted burglars.”


The general requirement as formulated by the majority was (para 129):

“…disclosure will be appropriate (and should be directed by the Judge if necessary) where a defendant can point to some likelihood that, in the context of the particular case, jurors with criminal histories may have an adverse predisposition towards the defendant or the defence which is to be advanced.”

It is possible that prosecutors will be inclined to cite the specific instances mentioned in para 125 as if they were the only sorts of circumstances in which this general requirement applies, namely where the potential juror may be biased against the accused.

How, then, did the majority on this point justify inequality in automatic access to this information? After all, the Solicitor-General had, in argument, conceded that the defence should have the information automatically. The majority found this concession was over broad (para 123). They noted the difference between jury-vetting, which they saw as the exclusion of unfavourable jurors, and jury packing, the getting of a favourable jury. The crucial reasoning is at para 127:

“A requirement that criminal history information about potential jurors be automatically made available to the defence would equate the Crown purpose of seeking a jury which is free of those with non-disqualifying but perhaps still serious criminal histories with a defence desire (impractical of achievement though it may be) that a jury include people with such convictions. As far as we are aware, and leaving aside some obiter dicta in R v Sheffield Crown Court, Ex parte Brownlow [1980] QB 530 (CA), no Court has been prepared to proceed on that basis. Instead, courts in New Zealand (see Greening [1991] 1 NZLR 110 (Tipping J, HC), Watson CA384/99 8 May 2000 and Tukuafu [2003] 1 NZLR 659 (CA)), England and Wales (see Mason [1981] QB 881 (CA) and McCann (1990) 92 Cr App R 239 (CA)) and Australia (see Katsuno (1999) 199 CLR 40) have rejected the contention that there is anything inherently unfair in a defendant being tried by a jury where the Crown prosecutor has had access to previous conviction histories for the purpose of exercising rights of peremptory challenge (or the functionally equivalent right to direct potential jurors to stand by).”

This comes down to saying that it is OK for the Crown to want a jury that is not biased against it, but in practice it has not been thought OK for the defence to want a jury biased in its favour. Jury-vetting is acceptable, but jury stacking is not.

That may well be good policy, and the majority held that any change should be left to Parliament. They emphasised an important point made by Robertson J (para 119, referring to para 31): examination of the relevant legislative history shows that Parliament expressly rejected a ban on jury-vetting by the prosecution. This does not quite justify the majority position, however, because it is not to say that Parliament rejected defence access to the same information as was obtained by the prosecution from the criminal history database. Indeed, as all Judges noted (Robertson J at 89, William Young P and Chambers J at 116) the New Zealand Law Commission (Juries in Criminal Trials) has recommended that the defence should have automatic access to such information.

Should either side be allowed to vet, let alone try to stack? Peremptory challenges are not allowed in England and Wales (as both judgments note), but should they be abolished? While they are allowed, it seems wrong to impose traditional restraints on access to information when responsible defence counsel would, these days, run the prospective jurors’ names through Google (a point alluded to in para 98 of the joint judgment). Official coyness about disclosure of well deserved convictions seems quaint, especially as they must be disclosed in many situations where a person seeks a responsible position. Given that peremptory challenges are allowed, equal access to information about prospective jurors should ultimately be adopted.