Proving propensity

Propensity evidence is evidence about the defendant’s conduct, not directly connected to the presently alleged offending, but which shows a propensity to act in a way that is relevant to an issue now before the court. To what, if any, standard must propensity be proved before it can be used in the process of determining the facts on the present allegation?

The United Kingdom Supreme Court has held that propensity must be proved beyond reasonable doubt before it can be taken into account in fact-finding: R v Mitchell (Northern Ireland) [2016] UKSC 55 (19 October 2016).

The Court noted that the common law had not settled this question, and legislation only covered admissibility, not standard of proof.

New Zealand common law has taken the position, almost as a mere assumption, that no particular standard of proof of propensity is required, but that instead admissible evidence of propensity is just circumstantial evidence that can be considered with all the other evidence in determining guilt on the present charge. For example, see R v Guy (1996) 13 CRNZ 589 (CA). And if the defendant had been previously charged with offending that would be evidence of a relevant propensity, but had been acquitted, evidence of the facts supporting that earlier allegation can, notwithstanding the acquittal, be given to prove the propensity: R v Degnan [2001] 1 NZLR 280, (2000) 18 CRNZ 319 (CA).

Is there necessarily an inconsistency here with Mitchell? That case only requires the propensity, not the evidence of it, to be proved beyond reasonable doubt. Its effect is that the method for determining facts if propensity evidence is relied on is to consider all the admissible evidence of propensity, to assess it and to decide whether propensity is proved beyond reasonable doubt. If it is, then it may be taken into account with the evidence of the present allegation. If it is not proved to that standard it must be ignored. It is not mixed with the other evidence in the case when the fact-finder is deciding whether there is a propensity.

This is inconsistent with the New Zealand approach. See for example R v Holtz [2003] 1 NZLR 667, (2002) 20 CRNZ 14 (CA), discussed here on 14 October 2004, where no standard of proof is required except for an ultimate conclusion of guilt. It is sufficient (at [39]) that the fact-finder “conclude” or be “satisfied” that the evidence of propensity establishes the relevant propensity. There the Court “rejected a general requirement that pattern or the like must be found beyond reasonable doubt before similar fact evidence may be used”.

The Mitchell rule requires the fact-finder to ignore evidence that is in reality highly probative. The judicial consideration of a variety of solutions to this problem in HML v The Queen [2008] HCA 16 (discussed here on 26 April 2008) was not mentioned in Mitchell. In Mohammed v R [2011] NZSC 52, [2011] 3 NZLR 145, (2011) 25 CRNZ 223 (discussed here) the focus was on other aspects of how juries should be directed on propensity evidence, so this point may still be open.

Error and injustice

In Booth v R [2016] NZSC 127 the Court changed the interpretation of the Parole Act 2002 to make some prisoners eligible for release earlier than they had been under the law as it had been understood and applied.

The Court did not decide whether any prisoners should get compensation.

When considering whether compensation should be given, there are several categories of prisoners to look at:
1.   Some prisoners were released the day after Booth was decided.
2.   Others will be released as soon as inspection of their files reveals that they should be released under Booth.
3.   Other prisoners will have their release dates re-calculated in compliance with Booth.
4.   And some prisoners have served their sentences under the law as it had previously been understood to have been, but if Booth had been applied to them they would have been released earlier.

Plainly, category 3 prisoners will be released on their correctly calculated dates and will not have been imprisoned longer than the law now permits. Compensation is not an issue for them.

Compensation is a live issue for category 2 prisoners whose release is delayed because of the time needed to ascertain their eligibility for release under Booth.

Less obvious, but still in my view fairly clear, is the position of prisoners in categories 1 and 4. These prisoners have all been in custody for longer periods that the law under Booth allows. But were they unlawfully detained? They were detained in compliance with the law as it had been understood to have been under a Court of Appeal decision (Taylor v Superintendent of Auckland Prison [2003] NZCA 159; [2003] 3 NZLR 752 (CA).) That case was not appealed (an appeal would have had to go to the Privy Council) and it was a long-standing precedent.

Does a change in the interpretation of legislation have retrospective effect? Courts have an inherent power to limit the retrospective effect of their decisions: Cadder v HM Advocate (Scotland) [2010] UKSC 43 at [58]. In Jogee and Ruddock v R [2016] UKSC 8 at [100] the principle of finality in litigation was referred to in the context of (what may be seen as more fundamental) the issue of convictions obtained under law which was subsequently held to have been wrongly understood:

“ … where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to the Court of Appeal out of time. That court has power to grant such leave, and may do so if substantial injustice be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken. This principle has been consistently applied for many years.”

And in the same paragraph the Court added:

“Likewise in Mitchell (1977) 65 Cr App R 185, 189, Geoffrey Lane LJ re-stated the principle thus:

“It should be clearly understood, and this court wants to make it even more abundantly clear, that the fact that there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction.”

It is not the change in law that is the decisive point, but it is whether an exceptional substantive injustice can be demonstrated by a prisoner whose sentence was served under the old understanding of the law. Here the exceptional and substantive injustice is the detaining of prisoners in the Booth category for longer than they should have been as a result of not counting all their time on remand as part of the sentence served. Those who were released on parole at the earliest opportunity have therefore been detained for longer than was lawful because a proper allowance for time served was not made when calculating their parole eligibility dates. Similarly, those who were not released on parole but who had to serve their sentences until their statutory release dates were detained for longer than they should have been if the miscalculation of credit for time spent on remand meant that their statutory release dates were later than they should have been. It can not matter for this seriousness of impropriety that the unlawfulness was only recently discovered: the fact that the officials were obeying the misconceived understanding of the law is irrelevant.

That seems to me to be the legal answer. The policy answer will depend on the weight to be given to finality in litigation as against the need to ensure that those who enforce the law obey the law, particularly in relation to people – prisoners – who are otherwise without remedy against institutional abuse of power. Their vulnerability became entrenched at a time when the final appeal court – the Privy Council – was, as a matter of practicality, out of their reach. I think the policy answer will be consistent with the legal answer, that retrospective effect of Booth will be acknowledged, and that compensation should be paid. There will still be arguments about whether compensation can be given without discriminating in favour of those prisoners whose offences did not have victims, because of the Prisoners’ and Victims’ Claims Act 2005.

Good to get that settled?

Ah yes, another report on the Bain case. I have added some comments to an earlier post (15 December 2012).

Extended common purpose – correcting the common law on secondary liability

Well, interweb, if I’m going to do a post this year I had better get on with it.

Extended secondary liability has received attention on this site before, on Dec 22, 2011, and Dec 18, 2006.

The Privy Council, in a judgment delivered jointly with the Supreme Court of the United Kingdom, has corrected a long-standing (30 years) error in the law of this form of liability: R v Jogee [2016] UKSC 8 (18 February 2016).

The change, reverting to what had been the correct position, is that a secondary party must always intend that the offence be committed. The error had happened when the Privy Council gave judgment in Chan Wing-Siu [1985] AC 168. The Board had held that under the extended form of secondary liability intention is not required, but instead only foresight that commission of the offence is a probable consequence of the prosecution of an unlawful common purpose.

This is explained extremely clearly by Francis FitzGibbon in the London Review of Books, Vol 38, No 5, 3 March 2016.

Embarrassingly, the blame for all this is attributed to the then Sir Robin Cooke (later, Lord Cooke), who delivered the Board’s judgment in Chan Wing-Siu. If one is to place the blame in that way, one must assume that the other members of that Board were asleep: Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Brandon of Oakbrook, and Lord Templeman. None of them tugged at Sir Robin’s sleeve and said “hang on a minute mate” (or whatever the equivalent English expression was).

From where did Sir Robin get his misunderstanding of the common law? As a New Zealand judge he would have been familiar with our s 66(2) of the Crimes Act 1961, which is the provision for this form of liability. An early interpretation of the (not materially different) predecessor of this – s 90(2) of the Crimes Act 1908 – was that the secondary party had to intend the commission of the foreseen offence: R v Malcolm [1951] NZLR 470, 485 line 33 (CA) where there is only a brief comment “Subsection 2 of s 90 requires a common purpose” [emphasis added]. However that was criticised in an influential textbook, Criminal Law and Practice in New Zealand (2nd ed FB Adams, 1971) at para 664, where it was said that “the whole point of s 66(2) [is] that something is done which may have gone beyond the common primary purpose.”

So, contrary to Malcolm, s 66(2) has subsequently (at least) been understood to mean that the secondary participant need not intend the commission of the offence, but that only foresight of it as a probable consequence of pursuit of the common purpose is required.

Regardless of why the mistake may have been made and why it had gone unnoticed for decades, the common law is now that intention is required. Foresight of a risk is evidence of intention, not a substitute for it. Can a provision like s 66(2) be interpreted consistently with that? I think it can. A “common intention to prosecute any unlawful purpose, and to assist each other therein” refers to a range of intended offences. Otherwise, the subsection would have said “common intention to commit an offence”. The phrase “known to be a probable consequence of the prosecution of the common purpose” functions to keep liability within the bounds of what was intended.

[Update: The Supreme Court has declined to reinterpret s 66(2) to bring it into line with Jogee: Uhrle v R [2016] NZSC 64 (13 June 2016).]

[Another update: The High Court of Australia has refused to revise the common law insofar as it applies in Australian jurisdictions, and will not bring it into line with Jogee: Miller v The Queen [2016] HCA 30 (24 August 2016).]

Decision models for the stay of criminal proceedings

Legal terminology at common law can change over time.

For example, exclusion of improperly obtained evidence is decided by what used to be called a discretion, but which is now called an application of judgement as a matter of law. The difference between exercises of judgement and exercises of discretions is not always easy to see. Bail decisions are currently called discretionary, but who knows whether they might come to be called exercises of judgement?

The only practical difference is in how they are approached on appeal. This difference has arisen because, during the latter part of the twentieth century, the common law developed powers of review, applicable to all decisions affecting people’s legal interests including decisions of judges in lower courts.

On review, the correctness of the method applied by the decision-maker is determined, and this involves looking to see whether certain kinds of errors occurred. These errors are: erroneous application of principle, wrongly taking into account irrelevant matters, not taking into account relevant matters, or being plainly wrong. If one or more of those errors occurred the review court will usually remit the issue back for determination in the correct way, and only occasionally will the review court be in a position to make the determination itself. The review court acknowledges the advantages that the decision-maker had in seeing and hearing witnesses, or in having special expertise in the relevant subject.

Review applies to discretionary decisions. What is usually called “general appeal” applies to exercises of judgement. On a general appeal the court will, if it finds that an error occurred, apply its own view of the appropriate outcome. There has to be a demonstrable error, and this is called the error principle. On general appeal the court can hear evidence if necessary, but usually the evidence taken in the court below is sufficient.

There will obviously be overlap between errors that qualify to come within the error principle and errors that qualify for purposes of review. Nevertheless, as the law currently is, the difference in the form of proceedings can lead to very different outcomes resulting from the same sort of errors. This makes the classification of a decision as either discretionary (review) or a matter of judgement (general appeal) rather important.

The point I am making from all this is that the common law can create distinctions which are difficult to apply and yet which have serious implications as to outcome.

The decision to exclude improperly obtained evidence (now a matter of judgement but it used to be a discretion) had developed at common law but is now, in New Zealand, governed by statute and therefore will be elaborated in case law. By “case law” I mean judicial interpretation of legislation, as opposed to common law which is entirely judge-made. There are other ways of using the term common law, but that is what I mean. The admissibility of improperly obtained evidence is determined by applying a relatively clear decision model. I mean that the model is clear, even if the result of its application in individual cases may not be easy to predict. This model is a balancing of factors favouring admission against factors favouring exclusion, the result being assessed in terms of the need for an effective and credible criminal justice system. This need could be imagined as a sort of scale to indicate the consequences of where the balance has come to rest.

That model, or method for making the decision, is conceptually clear, although only lawyers and judges and people who have made a study of the subject are likely to have sufficient knowledge of the case law to understand what the balancing factors are and how the scale distinguishes between admissible and inadmissible evidence by using precedent to establish markers for future reference.

But, significantly for what I will say below, the factors favouring admission of improperly obtained evidence are dominated by the seriousness of the alleged offending in the particular case. Therefore it is important to have a clear way of deciding what is a serious offence. At common law the criterion was that the starting point for sentencing would be in the region of four years’ imprisonment. Subsequent case law has followed that, but in 2011 some doubt was cast on that in the Supreme Court, arising from a different view expressed by at least one judge with probably some support from one other, although the decision of the Court does not seem to have been intended to make a change that would require overruling a large number of decided cases. That different view was that seriousness should be measured by the maximum penalty for an offence.

Over the last few years in New Zealand the courts have been particularly concerned with how to decide whether to stay criminal proceedings. One difficulty that seems to have been avoided is deciding whether a decision to stay is discretionary or a matter of judgement. It seems to be the latter, although before the difference in terminology emerged the cases may well have called it discretionary. But what is the model for making the decision?

There is no statutory guidance on this. It is purely a common law matter. In Wilson v R [2015] NZSC 189 (14 December 2015) the model devised in England was used. Unfortunately this law uses the term “discretion” in an historical sense from before the review powers developed to the extent that they have, so that discretion here means an exercise of judgement:

“[51] … a judge considering a stay application was required to weigh the countervailing considerations of policy and justice and then to decide in the exercise of his or her discretion whether there has been an abuse of process ‘which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed.’” [footnotes omitted, here and in the extracts quoted below]

Blanch though we may at the “his or her”, it looks as though this reference to public conscience is to a scale, of the sort I mentioned above in relation to improperly obtained evidence. Countervailing considerations are weighed against this scale.

Important among the balancing factors:

“[54] … the gravity of the alleged offence was a factor of ‘considerable weight’ for a court undertaking the balancing process to determine whether to stay proceedings on abuse of process grounds.”

And, of great interest in clearing up any confusion over how to assess the seriousness of the alleged offending, it is the starting point for sentencing, not the maximum penalty, that is relevant. This follows from, as it turns out, the majority’s resort to what was really the model applicable to the admissibility of improperly obtained evidence, and their description of the offending here as “moderately serious” [92(a)] although it included supply of LSD (maximum life imprisonment).

Unfortunately the model for deciding stays was significantly muddled by reliance on the following common law dictum:

“[54] … ‘The central question for the court in all these cases is as to where the balance lies between the competing public interests in play: the public interests in identifying criminal responsibility and convicting and punishing the guilty on the one hand and the public interest in the rule of law and the integrity of the criminal justice system on the other. Which of these interests is to prevail?’”

The majority judgment in Wilson concluded on this:

“[60] … when considering whether or not to grant a stay in a second category case [that is, one where the fairness of the trial is not in issue], the court will have to weigh the public interest in maintaining the integrity of the justice system against the public interest in having those accused of offending stand trial. In weighing those competing public interests, the court will have to consider the particular circumstances of the case. While not exhaustive, factors such as those listed in s 30(3) of the Evidence Act will be relevant, including whether there are any alternative remedies which will be sufficient to dissociate the justice system from the impugned conduct. In some instances, the misconduct by the state agency will be so grave that it will be largely determinative of the outcome, with the result that the balancing process will be attenuated. The court’s assessment must be conducted against the background that a stay in a second category case is an extreme remedy which will only be given in the clearest of cases.”

This has changed what should have been the scale into a balancing factor. Plainly the integrity of the criminal justice system should be an absolute requirement, not something that can be traded away in the interests of prosecuting serious crime.

Once that is accepted it follows that the model that should be used here is not the sort of balancing where two competing interests are measured against a scale, but instead it is a movement along a single scale of magnitude, going one way or the other and reaching a resting point on that scale. It is like a thermometer, not a balance. It isn’t really weighing anything, just measuring the intensity of the wrongful conduct of officials and seeing if that reaches a point where the integrity of the criminal justice system is compromised.

I think the Chief Justice was right (dissenting on the issue of whether a stay should have been ordered but agreeing in the result of the appeal), to emphasise, uncontroversially,

“[121] … the critical question is not the strength of the prosecution evidence or the weakness of the defence, but the effect of the defect on the legitimacy of the trial.

“[123] … the critical issue … was whether the trial could be legitimate given the serious irregularity.”

However she did not distance herself to any marked extent from describing the decision model as one of balancing, and instead retreated from clarity by adopting a rather flaccid dictum:

“[133] … general guidance on how the jurisdiction is to be exercised is not useful when ‘an infinite variety of cases could arise’.”

Decision models are designed to deal with an infinite variety of cases. Overall the ultimate issue of whether a stay should have been ordered in this case, which seems to conclude the Antonievic saga, came down to a vote count, without much clarity being given for future guidance. The majority’s application of the law to the appeal is really a retreat to the issue whether exclusion of the evidence was appropriate (using the conventional balancing exercise applicable to that decision) and then a recognition that the impropriety here did not go beyond what could appropriately be remedied by exclusion of some of the evidence.

So, to return to my theme of how the common law terminology and methods can change over time, a decision to stay criminal proceedings is no longer appropriately described as discretionary, but is a matter of judgement. On appeal the court will come to its own view of what should have been done. The decision model is currently that of weighing, but, I suggest, it should ultimately develop into a measure of the intensity of wrongdoing by officials to determine whether it affects the integrity of the criminal justice system. It is a different model from that applicable to improperly obtained evidence, and it should only apply if exclusion of tainted evidence is inadequate to protect the integrity of the criminal justice system. Where the wrongdoing colours the obtaining of evidence, the first decision will be the balancing required to determine the admissibility of that evidence, and then, if the wrongdoing was particularly bad it should be assessed for its impact on the integrity of the judicial proceedings. As has long been recognised, the position is different if the wrongdoing affects the fairness of a trial adversely to a defendant, for then a stay must be ordered.

Hardcopy edition of Misuse of Drugs

My textbook Misuse of Drugs will be published by Thomson Reuters NZ Ltd on 11 December in a new hardcopy edition. Orders may be made here.

Criminal Procedure in New Zealand, 2nd ed 2015

The second edition (hardcopy) of the criminal procedure text by Professor Finn and me will be available from 23 October, and may be ordered from Thomson Reuters NZ Ltd. Electronic formats, updated quarterly, are also available by subscription.