Coming to law from science

“Chief Justice French’s background in science has been useful in expressing ideas. He has suggested that identifying elements of administrative justice is “a little like the identification of ‘fundamental’ particles in physics. When pressed, they can transform one into another or cascade into one or more of the traditional grounds of review developed at common law”. [Robert French “The Rule of Law as a Many Coloured Dream Coat” (Singapore Academy of Law 20th Annual Lecture, Singapore, 18 September 2013) at 18.] It has also come in handy when cases before the Court have dealt with scientific concerns, such as D’Arcy v Myriad Genetics Inc, [[2015] HCA 35, (2015) 325 ALR 100] a case about the patentability of DNA. But I wonder whether the real insight to be obtained from what his scientific background has brought to the Chief Justice’s work is to be picked up from his reference to his gratitude that he was exposed to a “culture” of science. That may give some insight into a style of leadership that, to an outside view, seems more collaborative and cooperative, less competitive than is sometime encountered in appellate courts, perhaps because their members are often drawn from a section of the profession with a very different, more competitive culture.” (footnotes from original, inserted in square brackets)

Sian Elias, Address On The Occasion Of The Supreme And Federal Courts Judges’ Conference Retirement Function For The Hon Robert French, Chief Justice Of Australia, Perth, Western Australia, 23 January 2017, at [13].

Science is about finding out what happens, theorising about why it happens, and using that to predict what will happen. Observations usually involve measurement and consequently mathematics. From observations theories can be formulated, again they are usually mathematical. The mathematics should suggest what future observations will be. Predicting observations using mathematics is not always accurate, in which case refinements of the theory are needed. Refinements are prompted by unexpected observations.

For example, looking at magnets and wires, inconsistencies between the predictions of classical mechanics and Maxwell’s equations about the forces impelling a current in a conductor, depending on whether the conductor or the magnet is moved, prompted Einstein – at least according to the way he wrote his paper – to develop the special theory of relativity. The paper announcing this was called (in English translation), On the Electrodynamics of Moving Bodies. Measurements of an event made from different frames of reference (here, in the special case of reference frames moving in straight lines at constant velocities) depend on the point of view, and this in turn has implications for measurements within a single frame of reference. Using observations on the constancy of the speed of light in a vacuum, and theorising that the laws of physics are the same everywhere, Einstein borrowed mathematical techniques developed by Lorentz and showed that some refinements – albeit extremely small ones for the events we normally observe – must be made to Newton’s laws of motion. In a later addendum he showed that the same mathematics he had used also predicted how the energy in matter is proportionate to its mass.

While that sort of mathematics has proved to have great predictive value where observations are made at the macroscopic level, it is not so useful at the sub-atomic level. It seems that the smaller something is, the greater the need for a mathematics incorporating probability. At the sub-atomic level, mathematics is a less accurate predictive tool than it is for events at a larger scale. To compensate for the reduced usefulness of basic mathematics at the sub-atomic level, new forms of mathematics are devised, starting with quantum mechanics. Specialists develop new forms of mathematics to meet the needs of inquiry; Descartes combined algebra and geometry, Newton and Leibniz independently developed calculus, and today there are many forms of specialised mathematics, taking their topics far beyond a lay-person’s understanding.

Unless a mathematical refinement has predictive value for those who must use it, it is worthless to science. The same need for predictive value applies to theories that are not mathematical.

Law is like science in that in considering a legal problem a lawyer will try to predict what a court would decide the answer should be. The facts of the legal problem are like observed facts in science. They are events that have happened. Deciding what should be the legal consequence of those facts can be like using a scientific theory to predict what will happen. Where a judge has a discretion, or where judgment must be exercised by a court, there is room for a predictive theory to be developed. Those areas of law, where there are discretions to be exercised and evaluations to be made, are different from other areas where the answer to a legal problem can simply be looked up. Discretion and judicial evaluation invite analysis and development of predictive theory.

Two areas of judicial decision-making that have particularly interested me both involve evaluative judgments: deciding whether improperly obtained evidence should be ruled inadmissible, and deciding whether the evidence in a case is sufficient proof of guilt.

My study of the decision whether a court should rule improperly obtained evidence inadmissible is available at https://www.tinyurl.com/dbmadmissibility . There is a method behind my theory which has mathematical analogues: the Cartesian plane, a diagrammatic representation of results of cases, a boundary curve reflecting the rationality of the decision process. It provides a pictorial representation of results, and a method for identifying wrong decisions. Wrong decisions are like inaccurate scientific observations; they do not require rejection of an inconsistent theory unless they build up in number and have consistency among themselves to the point where it is no longer useful to call them wrong.

The sufficiency of evidence as proof of guilt is an inherently probabilistic question. Reasoning with conditional probabilities is something we all do instinctively, but mathematical analysis can reveal fallacies in intuitive thinking. Analogies from mathematical theory can indicate the probative value of items of evidence and the effect of those on the probability that a defendant is guilty. Law does not require mathematical precision, but mathematical method can be a useful tool. I illustrate this in my draft paper (draft because I like to have the opportunity to keep these papers up to date) available at https://tinyurl.com/dbmpropensity .

Those are illustrations of some of the ways in which a background in science can be of assistance to a lawyer.

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Kalbasi v Western Australia: analysing conviction appeals without Weiss

In Kalbasi v Western Australia [2018] HCA 7 the Court split 4-3 on whether Mr Kalbasi’s conviction was a substantial miscarriage of justice.

In trying to answer this question the judges used a notoriously difficult decision of the Court, Weiss v The Queen (2005) 224 CLR 300;  [2005] HCA 81. The differences in the conclusions reached by the judges suggests that Weiss doesn’t work.

In New Zealand we no longer struggle to decide whether a miscarriage of justice is “substantial”. The reformed law is in s 232 of the Criminal Procedure Act 2011.

True to say, Weiss has some lingering influence here, by way of applying Matenga v R [2009] NZSC 18, as can be seen in Wiley v R [2016] NZCA 28 at [18], [49], [51], but that may be only a clinging-to-the-wreckage instinct which the Supreme Court could well correct when it decides the appeals in Z v R (the leave decision was [2017] NZSC 172, 17 November 2017, not available online.)

How would Kalbasi have been decided under s 232?

Kalbasi is a wonderful example of a plethora of appeal issues arising from relatively straightforward facts. Jeremy Gans discusses these at the HCA blog.

I think that, applying s 232 here, we would agree with the conclusion reached by the majority in Kalbasi.

Was the trial unfair (s 232(4)(b))? At common law a trial is fair if the law was accurately applied to facts that had been determined impartially. Impartially includes without bias and without apparent bias, and requires that the fact-finder has given appropriate weight to the various items of evidence and has reasoned correctly.

Although there was an error of law in Kalbasi – everyone thought the presumption of purpose of supply applied, but it didn’t because the charge was only one of attempting to have possession (of methamphetamine) for the purpose of supply. It was an attempt because the police had substituted salt for the drug in the package. The error was immaterial for two reasons: the defence that was relied on (absence of proof of possession) made the subsequent issue of purpose irrelevant, and the quantity of the drug had been about 2000 times that at which the presumption is triggered, so there would have been, without a presumption, a strong factual inference for the defendant to raise a doubt about if that purpose had been contested.

So as a practical matter, the error of law didn’t matter. In some trials it is necessary for all defences to be considered, even those on which the defendant has not relied, but in this case the facts made a contest on the issue of purpose hopeless for the defendant. The error of law was inconsequential on these facts.

Were the facts determined impartially? The issue on possession was whether the defendant had exercised a power of control over what he thought was the drug. Control was properly explained to the jury. The defence was that the defendant did not have control because he was just present to take a small quantity of the drug for his own use. Usually, this would be a defence offered to negate the allegation of purpose of supply. But in the circumstances here the tactical decision to challenge possession rather than purpose was not unreasonable.

The defendant did not give evidence, and there was no criticism of that choice. It left the issue of possession, and more precisely of control, as a matter of inference. There were circumstances that supported the conclusion that Mr Kalbasi had a greater interest than merely obtaining a small quantity of the drug for his own use.

Given that the trial was fair, was there a real risk that the outcome of the trial had been affected by any error, irregularity or occurrence (s 232(4)(a))?

The judge had used a library book analogy to explain the difference between ownership and possession. The same analogy could have more pertinently illustrated the difference between custody and control. If you are the only visitor in a small library, and the librarian leaves the room briefly, you may be said to have custody of the books, but you would only have control of a book you picked out of the shelves. Control may be temporary and conditional on return, and it may be shared, and the evidence was that Mr Kilbasi had worn a latex glove and assisted with cutting or inspecting what he thought was the drug. So even if the library book analogy had not been used in the most apposite way, the jury would not have been misled about what control is.

There was no real risk that the outcome of the trial had been affected by an error, and the conviction was not a miscarriage of justice.

When judges get nasty

It’s good to see the Chief Justice taking an interest in judicial bullying of counsel.

I imagine there have been judicial bullies as long as there have been courts. Bullies can usually be quite nice people, but under pressure the character flaw is revealed.

My own method for dealing with bullying judges is rather unsubtle, as this exampleillustrates.

I am pleased to report the whole thing was settled amicably, the judge saying that we both seemed to be having a bad day at the office.

Rights, freedoms, and elderly children

In today’s decision Attorney-General v Smith [2018] NZCA 24 the Court of Appeal observed at [47] that

“… any rights analysis must begin with the presumption that Mr Smith [a sentenced prisoner] has the common law right to wear a wig if he wishes, simply because it is not illegal to do so.”

Sometimes cases are brought on grounds which obscure basic issues. There can be few points more basic in this context than the rights of people to do things that are not unlawful. Instead of relying on that right, it seems that this case was brought alleging a breach of the New Zealand Bill of Rights Act 1990, s 14. Arguments therefore were diverted to the issues whether wig-wearing is an “expression” within the terms of that section.

The High Court had held that it is, but the Court of Appeal overruled that. In that sense, Mr Smith lost the appeal. But it is wrong to say, as our news media are currently saying, that “Murderer loses legal right to wear wig in prison”, and “Wig-wearing murderer Phillip John Smith has no rights to hairpiece, court rules”.

Indeed, as things are between the parties, the dispute is settled and the issue is moot, and the Court of Appeal only issued a judgment because the issue of the engagement of s 14 “raises an important question with potential application in other cases” (at [26]).

You may wonder, as I do, why Mr Smith should want to wear a wig, given that mature men with full heads of hair look like elderly children.

Are principles always helpful?

The New Zealand Law Commission has published its Review of the Search and Surveillance Act 2012 (the SSA): NZLC R 141 (dated June 2017, but published on 30 January 2018).

With the aim of assisting officials who are conducting searches, the Commission recommends the enactment of principles. It acknowledges that the final wording of these principles may need revision. We can reasonably ask whether, in their present form, they will be of real use to those officials. Are these principles the product of armchair theorising, or will they usefully guide officers in law enforcement? Do all people have the same understanding of principles?

Here are the Commission’s proposed principles, with questions that I suggest may properly be asked.

Principle 1: conduct that may constitute an intrusion into the reasonable expectations of privacy of any individual should be carried out pursuant to a warrant, order, statutory power or policy statement;

From a constable’s point of view, what is a “reasonable” expectation of privacy, given that the constable is of the view that there are reasonable grounds to believe that evidence of an offence will be discovered? What are the discretionary considerations implied by “should”? What “statutory power” is relevant other than those in the SSA? Does this principle say any more than that the constable “should” obey the law?

Why not introduce a definition of “search”, and a provision stating that searches carried out otherwise than pursuant to the provisions of the SSA are unlawful?

Principle 2: a warrant or order should be obtained in preference to exercising a warrantless power;

What is “in preference”? The constable’s personal preference? Again with the “should”. Why is this just a principle and not a requirement with explicit exceptional conditions permitting warrantless searches? Are the grounds for a warrant more stringent than the grounds for a warrantless search?

Principle 3: State intrusion into an individual’s privacy should be proportionate to the public interest in the investigation and prosecution of the offence or the maintenance of the law;

Seriously, is a constable really expected to carry out this proportionality evaluation? Is a constable ever going to decide that no, in this case enforcement of the law doesn’t matter? Is this more helpful than requiring searches to be carried out reasonably – which itself is hardly more useful to a constable than saying “don’t be silly”.

Principle 4: powers under the Act should be exercised in a manner that minimises the level of intrusion on the privacy of any individuals likely to be affected;

Yes, well intended, but how is a constable to decide, in the quest for evidence that is reasonably believed to exist, when an intrusion on privacy is unnecessary? Again, is this no more helpful that telling the officer not to overdo it?

Principle 5: powers under the Act should be exercised having regard to te ao Māori (the Māori dimension) and any other relevant cultural, spiritual or religious considerations;

But all people are equal. What does “have regard to” mean? Do cultural, spiritual or religious considerations have priority? Are all cultural, spiritual or religious considerations of equal importance? The Sikhs’ kirpans are weapons, aren’t they? Are there to be dispensations?

Principle 6: powers under the Act should be exercised in a manner that minimises the impact on children and vulnerable members of the community;

Yes. Don’t be rude, don’t be rough, and don’t gratuitously cause stress. Or, be as nice as possible.

Principle 7: powers under the Act should be exercised in a manner that protects any privilege held by, or available to, any individual.

How is a constable to know when a person has a privilege, for example, against self-incrimination in respect of an offence which is not going to be charged? What does “protects” mean?

I hope not to encourage cynicism, but the words of Posner in Divergent Paths (see my note) at p 128 come to mind:

“The anxiety is that law really is not a rigorous field (which is true) but a field dominated by hunch and priors and rough balancing of competing considerations given only subjective weights, and by often inaccurate facts and lying or muddled witnesses and sly lawyers and confused or disingenuous judges.”

Divergent applications of principles can occur not only because people have different objectives, but also when they include interpretive concepts (in the sense used by Dworkin; see my review of Justice for Hedgehogs). We might all agree on what a “reasonable expectation of privacy” is, but we may differ on what is an example of it. Similarly with concepts of proportionality, minimal intrusion, relevant cultural, spiritual or religious considerations, vulnerable members of the community, and protection of privilege. Rather than being unifying, principles may foster divergent answers to the question of what conduct should be permitted. Dworkin’s theory suggests that in order to agree on instances of interpretive concepts people need to agree on ethics (how one should live) and morality (how one should treat others), and this requires recognition of the equal importance of all lives, and the need for people to take responsibility for their own lives. For present purposes the point is that a principle can require quite a lot of unpacking before its message in a particular case is revealed.

It is fair to ask whether application of any of the suggested principles could have influenced police conduct in, and the outcomes of, admissibility cases. Of those decided by the Court of Appeal under s 30 of the Evidence Act 2006 in 2017 (see my summary , at para [110], of these), there were only two where evidence obtained by improper search was inadmissible. In one a police dog bit the defendant on the arm during his apprehension and arrest, medical attention was required, and evidence found on the defendant but which was not central to the prosecution was inadmissible. In the other case, also involving the inadmissibility of evidence that was not central to the prosecution, a phone was searched during a detention that was unlawful and there was opportunity for the police to obtain a warrant. It is arguable that in this case a statutory principle could have affected police conduct, but so could proper administrative instructions given within the police organisation. There were two other cases which could be considered as searches because information was obtained from the defendant’s body: in one DNA evidence was excluded where there had been a breach of the statutory code of procedure in relation to DNA samples, and in the other the circumstances strongly suggested that the defendant had been badly beaten while being unlawfully detained in police custody and before medical evidence was obtained of his being under the influence of alcohol to the extent of being incapable of driving. It is doubtful that in either of those cases principles would have changed police behaviour.

Although hardly a statistically significant sample, at least it shows that in one year there was only one case of improper search where statutory principles might have affected police conduct to the extent that evidence would not have been ruled inadmissible. That was a warrant-preference case. Again, instructions given within the police service should be just as effective as a statutory principle.

Furthermore, a constable who gives evidence reciting statutory principles is likely to be believed in claiming that in the particular circumstances it was necessary, and not inconsistent with those principles, to act in the way that occurred. This could reduce the accuracy of fact-finding.

Posner gives us some holiday reading

It is impossible to have more fun than to spend a little time in the holidays reading Richard A Posner, Divergent Paths: The Academy and the Judiciary (Harvard University Press, Cambridge Mass., and London, 2016). Here is a snippet (p 13):

“Law schools will do almost anything to boost their ranking in U.S. News & World Report, which treats faculty-student ratio and number of library books as plus factors in the ranking, though they have little (library books virtually nothing) to do with the quality of legal education.”

And on the topic of judicial embrace of multifactor tests as aids to judicial decision making, which Judge Posner calls a common pretense of analytical rigour in adjudication, (p 117):

“Not only is the list of factors usually open-ended and therefore incomplete, but the factors are rarely given weights, and so unless all line up on one side of the dispute no decision can be derived from them; they are window dressing.”

And as a federal appellate judge, Posner has this to say about judicial disagreements (p 235):

“The problem of feuding federal judges would be solved in a trice if the Chief Justice summoned them to his office in Washington and told them to stop behaving like children.”

Well, I’m not trying to summarise what Posner says in this endlessly interesting book. We who are not Americans can easily see its relevance to our own legal environment.

Posner, who, to put it mildly, is one of the more intelligent judges, embraces Bayesian reasoning with conditional probabilities. A small glitch – surprising and ironic – occurs on pp 338-339 (if my Kindle’s pagination is correct) in his illustration of why lawyers need to be able to understand DNA evidence. But never mind.

I have, over the years of writing this blog, referred to Posner on several occasions. His fearless brilliance is an inspiration for jurists, and his enthusiasm brings both joy and outrage. And laughter.

Provoking thought – a new issue of NZCLR

You can, on reading a new issue of a law journal, be provoked into thought. Not always, but the latest New Zealand Criminal Law Review, [2017] NZCLR 152-313 (freely available at the New Zealand Criminal Bar Association website) is a positive example.

I have found myself wondering about the following things:

Ink molecules stuck in paper fibres, bits and bytes: is the medium the message?

Is an electronic file a document? Why shouldn’t it be? Should the word “document” in a statute be construed electronically or functionally? In Dixon v R [2015] NZSC 147 the Supreme Court took a functional approach. It seems significant to me that the Court applied s 6 of the Interpretation Act 1999, which simply provides: “An enactment applies to circumstances as they arise.” This is the “always speaking” quality of enactments, discussed from an Australian perspective in a case note on Aubrey v The Queen [2017] HCA 18, by Dan Meagher. It matters not that at the time legislation came into force there were no electronic documents, because the question is whether in the relevant statutory context and in the light of its purpose, the word “document” should include an electronic file. This is the functional approach. Whether an electronic file actually exists in a determinable location is irrelevant to a functional approach. If the file can be read, saved, shared, and in some cases edited or annotated, it functions as a document.

The habit that lawyers have of finding difficulties where there are none can impede the social utility of legislation. In seeking to give effect to legislative intent the courts will try to keep the law as simple as possible. There is a risk that scholarship in a new area of law will, in anticipating judicial decisions, needlessly divert attention to irrelevancies. I am not saying that it has here, just that it might have.

We can’t be wrong about ourselves (can we?)

Another thing I have been provoked into wondering about is the inherent jurisdiction of courts. If the highest court in a hierarchy rules that inherent jurisdiction on a particular point exists, then that must necessarily be correct, unless the court failed to notice legislation that expressly excluded such jurisdiction. Where the highest court considers relevant legislation and interprets it as being consistent with the existence of an independent inherent jurisdiction, then that is the law. What point is there in arguing that the court was wrong?

This arose in discussion of Marwood v Commissioner of Police [2016] NZSC 139. There, the Supreme Court held that in a civil action for forfeiture of criminal proceeds a court has an inherent jurisdiction to exclude improperly obtained evidence. Prior to that it had been conventionally thought that in a civil case there is no jurisdiction to exclude improperly obtained evidence except in extreme cases. Central to the issue was the implications of s 30 of the Evidence Act 2006, which provides for when improperly obtained evidence may be excluded in criminal cases. The critical words are “This section applies to a criminal proceeding”. Does that mean there is no exclusion in civil cases, or is s 30 just setting out the method for the decision in criminal proceedings and being silent as to civil proceedings? The Supreme Court effectively answered those questions in Marwood.

Arguments about whether there should continue to be the inherent jurisdiction recognised in Marwood should now be addressed to the legislature, not to the courts. They will be policy arguments, not fine-grained arguments about statutory interpretation. And they would probably end up by concluding that a total prohibition on exclusion of improperly obtained evidence in this sort of civil case would be wrong, but that a statutory framework for the decision process, analogous to s 30, might be appropriate. It may not be, because the inherent jurisdiction gives the courts flexibility to develop a process appropriate to the needs of cases as they arise.

Are good people better than ordinary people?

This issue of the journal includes a clear and comprehensive summary of an important case on when recklessness is a component of mens rea. There are suppression orders still in place, so I don’t give the citation. But I would be more confident than the author of the case note seems to be that the decision applies generally, wherever an offence is not of absolute or strict liability but where liability is not expressly limited to intent or belief. I would also wonder why the court needed to say that a person is not reckless if they are honestly doing their best to comply with the law. Just unreasonably taking a known risk is the conventional way of describing recklessness. Has the threshold for recklessness been raised by requiring people to do “their best” to comply with the law? Why is compliance with the law mentioned at all, when the traditional definition of recklessness simply asks whether the defendant’s action in taking the known risk was reasonable? Don’t ask. Is “doing one’s best” to comply with the law compatible with the taking of any risk of breaking the law? There is potential for jury confusion and requests for further explanations of the relationship between what it was reasonable for the defendant to have done and what a reasonable person doing their best to comply with the law would have done.

A good book about bad things

The journal includes book reviews, and I was pleased to favourably review Robert J Frater QC’s Prosecutorial Misconduct (2nd ed, Thomson Reuters, Toronto, 2017). Editing has its perils: why did the editors changed my correct reference in footnote 19 to the ONSC to make it an incorrect reference to the ONCJ?