Reflections on Lundy

Good to see the Court of Appeal’s judgment in Lundy v R [2018] NZCA  410 (9 October 2018) delivered at last.

It’s one of those “world-famous-in-New Zealand” things: a double homicide that was always a whodunit. I don’t comment on the decision, because the case may not be over.

Some points do occur to me, however.

The appeal was determined under the old criteria for deciding conviction appeals (the new ones are here). Would the decision have been the same under the new law? Are the approaches in Bain and Matenga the same? See my notes of 11 May 2007  here and here, 9 July 2009 here, 20 July 2009 here.

To what extent would this illustration of the way conviction appeals are decided influence the future Criminal Cases Review Commission (CCRC) in its decision whether to refer cases to an appeal court? The current Bill proposing the establishment of the CCRC is here, and the referral criteria are in clause 17.

How appellate courts should approach conviction appeals is surprisingly unclear. Today the High Court of Australia corrected the Supreme Court of Western Australia on this: Rodi v Western Australia [2018] HCA 44 at [37], and, also today, the New Zealand Supreme Court granted leave to appeal on whether a conviction appeal after a judge-alone trial requires the appellate court to adopt a review approach or to substitute its view of the evidence for that of the trial judge: Sena v Police [2018] NZSC 92 (leave granted).


When “must” a jury find a defendant guilty?

It is wrong for judges to compose, for use by juries in reaching verdicts, question trails that include directions that a verdict of guilty must be returned. For example, a question might take the form, “if [this question is answered “yes”] find the defendant guilty.”

Why is this wrong? A jury may be told when they must acquit, but never that they must convict. This is a safeguard against unconscionable prosecutions, where, although strictly speaking, the jury might be satisfied that the prosecutor has proved all the necessary elements to establish guilt, nevertheless it would be morally wrong to find the defendant guilty. The safeguard is so important that it is sometimes described as having constitutional importance. I have discussed this on 20 December 2013, here, and see also my note of 27 October 2006, here.

Yet it is wrong, at common law, to mention this option to the jury. Counsel cannot ask the jury to ignore the law. The law allows, but does not refer to, conscience verdicts. The subject belongs to jury-room discussion, into which a court will not inquire (as distinct from some aspects of jury-room discussion that might be the subject of judicial inquiry, for example to ascertain whether the jury has been improperly influenced).

Little appears to be known at the bar about conscience verdicts. For example, in De Soto v R [2018] NZCA 366, where the appeals were properly dismissed, no one raised the issue about the form that the question trail had taken. I do not suggest that any consequence followed from this in the circumstances of this case, as there does not appear to be anything about it that would raise a moralquestion about the appropriateness of findings of guilt. So the omission was not an error, and counsel may well have considered the point but correctly decided not to raise it in this particular appeal.

I just have a niggle with the question numbered 8 in [15] of De Soto: why is the instruction, in the event of an affirmative answer, to go on to question 9? The questions follow those set out in Ahsin v R [2014] NZSC 153 at [140], but they are put in the way designed to emphasise the Crown’s burden and standard of proof. Ahsin requires a reasonable possibility that each of the following exist: demonstration of withdrawal, steps to undo encouragement, those steps being all that reasonably could have been done, and those reasonable steps having been taken in a timely way. Absence of a reasonable possibility that any one of these requirements has been met is sufficient for the defence to fail.

Also of interest in De Soto is the availability of the defence of withdrawal when a defendant is charged with importation of a drug, notwithstanding that the defendant may have been a principal offender through instigating the importation by placing an order with an overseas supplier.

Knowledge, belief, and recklessness in criminal law

Are the courts too willing to use an unsound definition of the mens rea requirement of knowledge?

A workable definition of knowledge is belief that is true. This has been used in cases and legal texts: for example, AP Simester and WJ Brookbanks, Principles of Criminal Law(4th ed, Brookers, Wellington, 2012) at [4.5]; David Ormerod, Smith and Hogan’s Criminal Law, (13th ed, Oxford University Press, Oxford, 2011) at [5.25]–[5.27], both cited in R v Banks [2014] NZHC 1244 at [39]. However, knowledge is more complex a concept than that, as discussed by Bertrand Russell in Chapter 13 of his The Problems of Philosophy (1912), which is freely available at A person does not really know something if the justification (that is, the reason) for the claimed knowledge, is false. Russell’s account of knowledge can be read with Edmund Gettier’s famous and brief 1963 paper “Is Justified True Belief Knowledge?”, available at, which has generated a large body of entertaining discussion.

A true belief is not knowledge when it is deduced from a false belief. For example, the defendant may say, “I knew it was cocaine because it was some of what John gave me”, when in fact it was cocaine given to the defendant by someone else. The defendant believed that it was cocaine, on grounds that might have been strong if they were true. The reasonableness of the grounds depends on the likelihood of John having supplied the drug. If the grounds were weak, it would be more accurate to say that the defendant merely suspected that the drug was cocaine. This illustrates how a defendant may wrongly claim to have known something when it was only believed or suspected. True belief is also not knowledge if it is arrived at by fallacious reasoning. The defendant may claim to have known that a substance was cocaine because John supplies cocaine and John supplied this substance. The fallacy is that John may also supply other substances. Although the substance was indeed cocaine, the defendant’s belief would not normally be described as knowledge because it was a product of the mistaken assumption. The defendant had a belief, perhaps a belief on strong grounds if John nearly always supplied cocaine, but although the defendant thought it was knowledge, it was really just probable opinion. But if probable opinion is sufficiently probable to result in a firm belief, it can be correct to call it knowledge. This is different from the lesser probability required, for example, for the familiar “reasonable grounds to believe” needed in the search context, where an applicant for a warrant need only have the belief, not knowledge, that the relevant thing is at the place to be searched.

If a defendant admits in a police interview to having had knowledge of circumstances which were required to exist for there to be an actus reus, the police would be unlikely to challenge the defendant’s grounds for that claim of knowledge. But in the interval between interview and trial, when there would usually be some opportunity for philosophical reflection, a defendant may realise that the circumstances were more uncertain than they were thought to have been, and that the claim of knowledge was an exaggeration. This defendant may decide that what was perceived was a probability, not a certainty, and that the state of mind was suspicion rather than belief.

However, the law does tend to conflate the concepts of knowledge and belief. Whether it is correct to do so may be questioned. For example, see Kerr v R [2012] NZCA 121, which concerns knowing a purpose of future use of the relevant thing. The court, by interpreting knowledge as including belief (or, more accurately, as including belief that was false), in reality read in to s 12A(1) of the Misuse of Drugs Act 1975 the phrase “or believing”, referring to common law instances of knowledge being equated with belief (at [14]-[16]), the definition in the New Zealand Oxford Dictionary ([17]), and perceived difficulties with excluding belief ([18]-[19]). With respect, it should be noted that online Oxford dictionary definitions of  “know” do not refer to belief, and definitions of  “believe” do not refer to knowledge. Further, the Court’s difficulty with the concept of knowing a future event is beside the point, because what s 12A requires is knowledge of a present purpose (“is to be used”). The cases cited are from other contexts, but relevantly include where a substance was supplied to an undercover officer who had no intention of using it illicitly – raising the unaddressed issue of whether an investigatory technique should influence the definition of an offence – or receiving, where it was thought necessary to read in belief if knowledge was limited to what the defendant actually saw. This ignores the wider dictionary definition of know as to be aware of through observation, inquiry, or information. The real difficulty in Kerr was that Parliament had not anticipated that the police would use undercover officers to pretend to defendants that they were going to put items to illicit use, and the legislation should have specified “knowing or believing” in defining the mental elements of the offence.

Those matters aside, it may be that recklessness, which requires, as one of its elements, perception of a risk of the relevant criminality occurring if the defendant acts, is not amenable to the Russell – Gettier analysis. It is the perception, not the grounds for the perception, of the risk, that matters here. For the purposes of attributing criminal responsibility, where attention is on the harm threatened by the defendant, it is the perceived risk, not a known risk, that is a component of recklessness. The defendant’s perception of the probability of the relevant criminal outcome is sufficient, and if “knowledge” of the risk is referred to, it should be understood here in the loose sense of risk perception.

Take a coin, any coin

It is good to see an article on Bayesian reasoning with conditional probabilities in the current issue of the Times Literary Supplement: “Thomas Bayes and the crisis in science” by David Papineau (June 28, 2018).

As Professor Papineau points out, Bayesian analysis is used in many fields, including law.

One of the difficulties in discussing Bayesian reasoning, or indeed any complex subject, is that clear and simple points can become obscured by technical terms.

It took me a while to get to grips with Professor Papineau’s coin-tossing illustration. What it is designed to illustrate is an error of reasoning that is, apparently, found in too many published scientific studies. Essentially, the error involves drawing a conclusion from too little information.

If you take a coin – any coin – and toss it five times, and if you get five heads, how likely is it that the coin is biased? Pretend that you do not have special coin-tossing skills that allow you to determine the result of a toss. Also pretend that it doesn’t occur to you to just keep tossing the coin to see what proportion of the sequences of five-tosses give results of five-heads.

After only a little reflection you realise that an unbiased coin will, on average, produce five-heads once every 32 times the five-toss sequence is carried out. One in 32 gives a probability of 0.03, approximately. The probability of getting five-heads from an unbiased coin looks very low, and you might be tempted to conclude that, therefore, there is a probability of 0.97 that the coin is biased.

Apparently, a significant number of scientific studies have been published in peer-reviewed journals, reporting conclusions arrived at through that sort of reasoning.

Bayesian analysis, if you are able to do it, will quickly show you that such conclusions are ridiculous, or, as Professor Papineau says, “silly” or “nonsense on stilts”.

If you are a lawyer, you might have to convince a judge or jury that an apparently obvious conclusion, reached by a respected expert, is wrong. It is far from easy to do this, and that may be why Bayesian analysis is taking so long to be routinely applied in courtrooms.

Fundamentally, the probability of getting five-heads if the coin is not biased, is not the same as the probability of the coin not being biased if it produced five-heads. The probability of A, given B, is not the same as the probability of B, given A.

My favourite way of illustrating this is to say: the probability of an animal having four legs, given that it is a sheep, is not the same as the probability of it being a sheep, given that it has four legs. The first tells you something about sheep, the second something about quadrupeds.

We know something about an unbiased coin: about three per cent of the times it is tossed five times it will produce a sequence of five-heads. But what do we know about a coin that has produced a five-head sequence? Is it biased or unbiased? If it is biased, how biased is it? Does it always produce five-heads or only some proportion of the times it is tossed five times? Is a biased coin commonly found or is it rare? Those things need to be known in calculating the probability that the tossed coin which produces a five-head sequence is biased.

At the risk of over-explaining this, let’s ignore – just for a moment – the rarity of biased coins and consider possible results of 100 five-toss sequences for a biased, and an unbiased, coin:

Biased             Unbiased

Five-heads       25                      3

Other               75                     97

These results give three per cent of the results for the unbiased coin showing five-heads. The biased coin was, in this example, biased in such a way that it showed five-heads 25 per cent of the time and any other result 75 per cent of the time. So, of the five-heads results, three were from the unbiased coin and 25 from the biased coin, so the percentage of five-heads results that were from the biased coin is 25/28 times 100, or 89.3 per cent. Assuming you were equally likely to have tested either of the two coins, after one sequence of five tosses, the probability of the tossed coin being biased, given the five-head result, is approximately 0.89, which would not be regarded scientifically as significant proof of bias. Conventionally, for a significant conclusion that the coin was biased the conclusion could only be wrong no more than 5 per cent of the time.

This is not to say that the result is of no use. It does tend to prove the coin is biased. The strength of its tendency to prove bias is the likelihood ratio: the ratio of the probability of five-heads, given the coin is biased (from the above table this is 0.25) to the probability of five-heads, given the coin is unbiased (0.03), a ratio of 8.3 to 1. On the issue of bias, the result should be reported as: whatever the other evidence of bias may be, this result is 8.3 times more likely if the coin is biased than if it is not biased. The other evidence may be from a survey of coins which measured how often we can expect to find biased coins.

Now suppose that such a biased coin is only found once in every ten thousand coins, and that all biased coins have the same bias. The probability of a randomly chosen coin you have tossed being biased is, when you do the calculation using a Baysean formula, 0.0008. Eight occurrences in ten thousand. Much lower than the 0.97 probability (97 occurrences in 100) of the coin being biased that might have been reported in a peer-reviewed journal.

Again, this is not as surprising as it may seem at first glance. There may be only one biased coin in 10,000 coins, and one occurrence of five-heads from a biased coin in 40,000 coins (using the one-in-four frequency in the table), but, in round figures, there will also be 1200 occurrences (three per cent) of five-heads from unbiased coins in those 40,000 coins. This is why, on this occurrence of biased coins, a five-head result is much more likely (1200 times more likely) to be from an unbiased coin than from a biased one.

Only a very brave judge or juror would bet a significant sum that a coin which when tossed produced a five-head sequence was not biased. The bets would go the other way and those significant sums would most probably be lost.

And, as an afterthought: if you feel estimating prior probabilities is a bit haphazard, the Bayesian formula can be turned around to tell you what priors you would need in order to get in the above example P(the coin is biased) = 0.95. You would, before doing the experiment, need to be convinced to a probability of about 0.70 that the coin was biased. This sort of approach is discussed in a paper by David Colquhoun (available courtesy of The Royal Society Publishing). If, as a lawyer, you want an easy introduction to Bayesian reasoning, see my draft paper on propensity evidence.

Lane v The Queen: error classification and a nudge for Weiss

Good to see Weiss v The Queen (2005) 224 CLR 300 getting another nudge into the obscurity it so richly deserves, in Lane v The Queen [2018] HCA 28 (20 June 2018).

Lane raises, for reflective readers, the difficulty of distinguishing trial errors that go to what Australians call the presuppositions, and errors that are less fundamental but which nevertheless require the quashing of a conviction.

The point of trying to distinguish these types of errors from each other is that when the former occur there is no need for an appellate court to ask whether the verdict could have been affected by the error, whereas when the latter occur the appellate court asks itself whether there is a real risk that the verdict would have been more favourable to the defendant (appellant) if the error had not happened.

Presuppositional errors require quashing of convictions, whereas other errors (beyond the trivial or irrelevant) raise the “real risk” question.

It is probably not inaccurate to think of presuppositional errors as those which undermine the fairness of trials. In Lane, the joint judgment of Kiefel CJ, Bell, Keane and Edelman JJ treats the error as presuppositional: the jury had not been told that unanimity on a particular factual issue was, in the circumstances of the case, required. While recognising the limited utility of classifications of errors, the joint judgment says that it does put the focus on the effects of the errors (at [46]), and that here the misdirection was apt to prevent the performance by the jury of its function of reaching a unanimous verdict. This required, without further inquiry, the quashing of the conviction.

We could say that a trial resulting in a verdict that did not comply with the law was not a fair trial.

The other view of the error in Lane was taken by Gageler J, who agreed with the orders made in the joint judgment. Here, the question was simply whether the possibility of lack of unanimity was more than theoretical (at [58]). In the circumstances, it could not be said that without the error the jury would have returned the same verdict (at [63]).

The joint judgment does not engage with Gageler J’s approach, so without an explanation for why it is wrong it has more weight than it would otherwise have. Even so, Lane is authority for the proposition that where the circumstances of a case are such that a jury may not have been unanimous on an issue where unanimity was required, a resulting conviction will have to be quashed.

My opening and scornful remark about Weiss is addressed to its endorsement of the appeal-judges-as-jurors view of what an appeal court can do. I am one of those who think that appellate judges should never make determinations of guilt. Their function is to assess whether there is a real risk that a verdict more favourable to the defendant (appellant) would have been returned if the error had not occurred, or whether the trial was unfair or was a nullity.

There are some comments in Lane which reject the notion of appeal judges as triers of fact, but those comments need to be read in the context of Lane. So, in that context, Weiss has received its nudge.

Update: The day after Lang was delivered, the New Zealand Supreme Court decided that an error at trial resulting in the jury being instructed incorrectly on mens rea elements required the appellate court to apply the “real risk” analysis, and made no reference to the more fundamental trial fairness ground. Readers are not, therefore, assisted in discovering why this was not a fairness issue. The decision is currently subject to suppression orders, so is only available to people who have access to the databases: [2018] NZSC 56.

Reviewing the Evidence Act 2006

Well jurists, it’s only a month to go before your submissions on the New Zealand Law Commission’s Second Review of the Evidence Act 2006, Issues Paper 42, are due in.

You don’t have to answer all questions, so you can focus on your favourite topics.

Mine are done, as you can see.

An admirable dissent

On rare occasions you read a dissenting judgment that is reasoned with such brilliant clarity that you may bruise your hands in applauding.

So it is with S (CA377/2017) v R [2018] NZCA 101 (19 April 2018).

Counsel had not told the defendant that there was the option of having a judge alone trial (JAT) and, without consulting the client on the matter elected jury trial on his behalf.

After being convicted at trial the client became aware that he could have had a JAT, and deposed that he would have chosen that mode of trial if the matter had been discussed with him.

What was the status of the error? Under s 232 of the Criminal Procedure Act 2011, if it rendered the trial unfair it would be unnecessary to show that it had affected the outcome of the trial.

The majority two judges of the Court of Appeal held that the error did not render the trial unfair, and this was the point on which one judge dissented.

In the absence of local case law, the majority were guided by the Supreme Court of Canada in R v Turpin [1989] 1 SCR 1296, the Supreme Court of the United States in Singer v United States 380 US 24 (1965), and the High Court of Australia in Brown v R (1986) 160 CLR 171.

This led to the position that, as there was no “right” to a JAT, but only a right to elect jury trial (with JAT being the default position – what one might think of as the factory setting), the trial was not unfair in terms of s 232(4)(b). Patience with subtlety is necessary to follow the reasoning.

Nor, said the majority, was the error fundamental because it had not been included in a list of fundamental errors compiled in an earlier decision of the Court. (But, as the dissenter observed, neither had it been specifically excluded.)

And there was nothing to indicate that the error had affected the outcome of the trial.

It would be wrong for counsel to rely on the majority judgment as permission to avoid taking instructions on election of jury trial whenever there is a choice to be made, pending resolution of the issue in the Supreme Court (in this or a similar case). The Court certainly did not intend to give permission to make errors.

The dissent essentially takes the position that, just as it would be a fundamental error to fail to inform a defendant of the right to elect jury trial, so too is it a fundamental error to fail to inform a client of the option of judge alone trial. It fits with other fundamental errors identified in Hall v R [2015] NZCA 403 at [65]: decisions as to plea, giving evidence, and presenting a defence, and with the duty referred to at [71].

There was no doubt that the jury trial that happened in this case was in its substance fair. What s 232(4) relevantly requires, to amount to a miscarriage of justice, is an error in relation to the trial that resulted in an unfair trial. An “unfair trial” is not defined, but there could be two types of unfairness: substantive and procedural. Is a trial procedurally fair if it proceeds in a mode that was not, when there was a choice, chosen by the defendant?

Another, and probably better, way of looking at this is to ask whether the error rendered the jury trial a nullity. Is the defendant’s decision a jurisdiction-creating act? The default mode of trial, judge-alone, occurs without a decision from the defendant, and the jury mode is only activated by the defendant’s election. This legislative scheme is consistent with jurisdiction to have a jury trial being created by the defendant’s act, and such a trial being a nullity in the absence of such act.

Update: on 30 July 2018 the Supreme Court granted leave to appeal on the question whether the Court of Appeal was right to dismiss the appeal on the mode of trial point: [2018] NZSC 64.