Third party challenges to trial publicity

When may a third party obtain suppression of publication of the name of an accused? In Re S (a child) [2004] UKHL 47 (28 October 2004) the legal representative of a child sought to protect him from publicity that would arise from his mother’s trial on a charge of murdering his brother. The first notable feature of the case is that it illustrates the process of balancing competing rights. These rights, pursuant to the European Convention on Human Rights (ECHR), are the right to privacy (Art 8) and the right to freedom of information (Art 10).

The House of Lords was careful to emphasise that the circumstances of each case have to be considered. Lord Steyn delivered the speech with which the other Law Lords agreed. He set out the method in para 17:

“… First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.”

Following that approach, the prevailing right was held to be the Art 10 right to information, and the injunction sought against publication was refused.

The second notable aspect of this case is what it says about the common law inherent jurisdiction of the court to prohibit publication. It was held (para 23) that the jurisdiction to prevent publication is now derived from Convention rights, and as far as existence and scope of the power is concerned, the prior case law on inherent jurisdiction need no longer be considered. However, that case law remains relevant in illustrating the balancing process, which developed with acknowledgement of European jurisprudence even before October 2000 (when the Human Rights Act 1998[UK] – “the UK Act” – came into force).

We may well wonder whether this suggests, by analogy, anything for New Zealand law. The UK Act, s 3, requires domestic courts to give effect to the jurisprudence of the European Court of Human Rights so far as it is possible to do so. This is a clear indication that Strasbourg decisions, rather than the prior common law, should henceforth be the guide to the interpretation of Convention Rights.

By contrast, in New Zealand, NZBORA 1990 affirms and promotes the rights set out in it, and it affirms New Zealand’s commitment to the ICCPR. There is no provision requiring foreign court decisions to be followed. The right to freedom of information is contained in NZBORA, s 14, but the right to privacy, relied on in Re S (a child), is not. It is preserved at common law by virtue of s 28, which continues existing rights and freedoms notwithstanding their omission from NZBORA. Such inherent jurisdiction as there is, therefore, should remain alive, and indeed may draw upon the balancing process described in Re S (a child).

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Sex and time

A hundred years on, R v Blight (1903) 22 NZLR 837 (CA) retains its potency. The House of Lords has referred to it in R v J [2004] UKHL 42 (14 October 2004), in which a majority upheld the prohibition on the prosecution evading a statutory time limit by alleging a similar offence, not subject to such a limit, based on the same facts:

[65] … there may indeed be some initial difficulties. But your Lordships would merely be adopting the same approach as has applied in the case of the equivalent legislation in New Zealand for over a century, following the decision in R v Blight 22 NZLR 837. Significantly, [Crown counsel] was unable to point to any insuperable problems which the prosecutors or courts had encountered there. On the contrary, when, in R v Hibberd [2001] 2 NZLR 211, the Court of Appeal came to interpret the Crimes Act 1961 as amended to cover homosexual offences, in the light of their experience they deliberately adopted the same approach to the time-bar as had been laid down in R v Blight.

Baroness Hale dissented:

[90] … The rationale behind the time limit can no longer be that which it was said to be in R v Blight 22 NZLR 837. If it is that the defendant can no longer have a fair trial, I would certainly agree that such prosecutions should be stayed either as an abuse of process or as outside the prosecutor’s competence to bring. If it is, as was suggested by the Criminal Law Revision Committee when it recommended retention of the time limit in its 15th report in 1984, that people should not be prosecuted for offences which were “stale”, it is unclear what this means in a case where a fair trial is still possible. If it means that something which was once a matter deserving of punishment is no longer so because of the passage of time, then this will not invariably be so. At one extreme will be the teenage romance between a boy and a girl who have since gone their separate ways, where no possible personal or public interest would be served by prosecution. At the other will be prolonged and serious abuse of a position of trust by a person who might well be left to do it again unless action is taken. It will all depend upon the circumstances, in which the interests of the accused, the victim and of society will all play their part. A just and humane prosecution policy should be capable of taking all these factors into account.

The difference between the majority and the minority reflects formalist and pragmatic analysis, respectively.

Evidential or legal burdens on the defence

Sometimes the legislation creating an offence places a burden on the defendant, if he is to avoid conviction, to prove something. In the absence of any statutory specification of the standard of proof which is placed on the defence by such provisions, the common law has traditionally held them to impose a legal burden of proof on the balance of probabilities. If he fails to meet this burden, the accused may be convicted even though there might be a reasonable doubt about his guilt. In this sense, legal burdens infringe the presumption of innocence. Courts have recognised this, but have regarded the shift in legal burden as justified. Justifications have been the mischief at which the legislation is aimed, and the ease with which the burden may be met.

In Attorney-General’s Reference (No 4 of 2002) [2004] UKHL 43 (14 October 2004) (decided jointly with Sheldrake v DPP) the House of Lords had to consider the effect of human rights law on this position, in the light of its obligation pursuant to s 3 of the Human Rights Act 1998 [UK] to apply the law so as to conform with the jurisprudence of the European Court of Human Rights in its interpretation of the European Convention on Human Rights. Section 3(1) provides:

“3. – (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

Lord Bingham of Cornhill delivered the leading speech for the majority; the minority agreed with his statement of the law but differed in its application in relation to one of these two appeals. At para 9 the parallel concerns of domestic and European law were mentioned:



“The right to a fair trial has long been recognised in England and Wales, although the conditions necessary to achieve fairness have evolved, in some ways quite radically, over the years, and continue to evolve. The presumption of innocence has also been recognised since at latest the early 19th century, although … the presumption has not been uniformly treated by Parliament as absolute and unqualified. There can be no doubt that the underlying rationale of the presumption in domestic law and in the Convention is an essentially simple one: that it is repugnant to ordinary notions of fairness for a prosecutor to accuse a defendant of crime and for the defendant to be then required to disprove the accusation on pain of conviction and punishment if he fails to do so. The closer a legislative provision approaches to that situation, the more objectionable it is likely to be. To ascertain the scope of the presumption under the Convention, domestic courts must have regard to the Strasbourg case law. It has there been repeatedly recognised that the presumption of innocence is one of the elements of the fair criminal trial required by article 6(1): see, for example, Bernard v France (1998) 30 EHRR 808, para 37.”



Strasbourg law was summarised in para 21:



“From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case.”



The question comes down to proportionality. In the appeal over which the House of Lords was split, the question involved the interpretation of s 11 of the Terrorism Act 2000 [UK], which provides:



11 Membership

(1) A person commits an offence if he belongs or professes to belong to a proscribed organisation.

(2) It is a defence for a person charged with an offence under subsection (1) to prove—

(a) that the organisation was not proscribed on the last (or only) occasion on which he became a member or began to profess to be a member, and

(b) that he has not taken part in the activities of the organisation at any time while it was proscribed.

What standard of proof does subsection (2) carry? Six considerations were relevant (para 51):

“(1) … a person who is innocent of any blameworthy or properly criminal conduct may fall within section 11(1). There would be a clear breach of the presumption of innocence, and a real risk of unfair conviction, if such persons could exonerate themselves only by establishing the defence provided on the balance of probabilities. It is the clear duty of the courts, entrusted to them by Parliament, to protect defendants against such a risk. It is relevant to note that a defendant who tried and failed to establish a defence under section 11(2) might in effect be convicted on the basis of conduct which was not criminal at the date of commission.



(2) While a defendant might reasonably be expected to show that the organisation was not proscribed on the last or only occasion on which he became a member or professed to be a member, so as to satisfy subsection (2)(a), it might well be all but impossible for him to show that he had not taken part in the activities of the organisation at any time while it was proscribed, so as to satisfy subsection (2)(b). Terrorist organisations do not generate minutes, records or documents on which he could rely. Other members would for obvious reasons be unlikely to come forward and testify on his behalf. If the defendant’s involvement … had been abroad, any evidence might also be abroad and hard to adduce. While the defendant himself could assert that he had been inactive, his evidence might well be discounted as unreliable. A’s own case is a good example. He arrived as a stowaway. He described himself on different occasions as Palestinian and also as Jordanian. An immigration adjudicator concluded that he was Moroccan. The judge, as already noted, thought he might well be a fantasist. He was not a person whose uncorroborated testimony would carry weight. Thus although section 11(2) preserves the rights of the defence, those rights would be very hard to exercise effectively.

(3) If section 11(2) were held to impose a legal burden, the court would retain a power to assess the evidence, on which it would have to exercise a judgment. But the subsection would provide no flexibility and there would be no room for the exercise of discretion. If the defendant failed to prove the matters specified in subsection (2), the court would have no choice but to convict him.

(4) The potential consequence for a defendant of failing to establish a subsection (2) defence is severe: imprisonment for up to ten years.

(5) While security considerations must always carry weight, they do not absolve member states from their duty to ensure that basic standards of fairness are observed.

(6) Little significance can be attached to the requirement in section 117 of the Act that the Director of Public Prosecutions give his consent to a prosecution (a matter mentioned by the Court of Appeal in para 42 of its judgment) for the reasons given by the Court of Appeal in para 91 of its judgment in Attorney General’s Reference (No 1 of 2004) [2004] EWCA Crim 1025.”



Accordingly (para 53), since it was possible to “read down” the legislation, s 11(2) was held to place an evidential burden, not a legal burden on the accused. That means, as Lord Bingham began by saying (para 1):



“An evidential burden is not a burden of proof. It is a burden of raising, on the evidence in the case, an issue as to the matter in question fit for consideration by the tribunal of fact. If an issue is properly raised, it is for the prosecutor to prove, beyond reasonable doubt, that that ground of exoneration does not avail the defendant.”



This case has persuasive value for New Zealand courts, because the influence of the New Zealand Bill of Rights Act 1990 on our common law is comparable to the influence of the European Convention on Human Rights on English common law. It is an illustration of how the interpretation of the burden as evidential rather than legal is not “strained and unnatural” (as it had been described in R v Phillips [1991] 3 NZLR 175 (CA)).



In the two appeals considered by the House of Lords in the case reviewed here, one concerning a defence to an excess alcohol driving offence was held to require a legal burden on the defendant, while the other, in the context of alleged belonging to a terrorist organisation, was held to impose only an evidential burden on the accused.

Reasoning with similar fact evidence

The recent Canadian case, R v Perrier 2004 SCC 56 (30 September 2004), reminds us about the controversy concerning whether evidence about charges on which the jury acquits the accused can be used as similar fact evidence against him on other charges considered at the same trial: see Mahoney, “Basing Convictions on Acquittals: Conjuring by the Court of Appeal” in Robertson (ed) Essays on Criminal Law: A Tribute to Professor Gerald Orchard (2004, Brookers, Wellington). Mahoney argues that a juror who is unsure that the accused committed the other offences, and who therefore would find him not guilty of them, cannot then use the evidence of those when deciding whether the accused is guilty of the offence in respect of which the prosecution says the evidence is relevant on a similar fact basis.

The New Zealand Court of Appeal has held the contrary in R v Holtz [2003] 1 NZLR 667; (2002) 20 CRNZ 14. Care is needed, as the Court pointed out in para 47:

“The care with which evidence of similar acts is scrutinised is justified because of the prejudice that inevitably arises from the risk of guilt being improperly inferred from mere propensity or disposition evidenced by previous bad conduct. But, where the evidence is truly probative and cogent, admission is appropriate so long as the circumstances are such that, while allowing the probative value of the evidence to be availed of, the risk of improper use can be avoided by appropriate directions to the jury.”

Essentially the differences in these points of view is attributable to the differing standards of proof for the admission of evidence on the one hand, and the proof of guilt on the other.
In Holtz, at para 38, the Court said:

” … Where [similar fact] evidence is the only evidence or substantially the only evidence available from which the jury is asked to infer that the accused was the person who committed the offence charged, since the offence must be proved beyond reasonable doubt, the accused’s responsibility for the pattern of events necessarily must be found established beyond reasonable doubt before a verdict of guilty is justified. But that is because the offence charged must be proved beyond reasonable doubt. It is not because the similar fact evidence on which a verdict of guilty is based must be established beyond reasonable doubt before it can be used. By contrast it may be that in a particular case the evidence of pattern may be just another strand of circumstantial evidence pointing toward the accused. In that event, to require proof beyond reasonable doubt [of the similar facts], would be quite inconsistent with the proper approach to circumstantial evidence. Accordingly we do not accept as of universal application that, where identity is in issue, similar fact evidence cannot be used unless it is found to the standard of beyond reasonable doubt that the accused was responsible for the past conduct and that the same person was responsible for the offence charged….”

Mahoney agrees (p 41) that similar fact evidence is a form of circumstantial evidence, but suggests that, on the question of admissibility, similar fact evidence needs special treatment because its admission is exceptional. That said, however, Mahoney focuses his argument not on the decision as to admissibility, but rather on the way the jury should use similar fact evidence. He accepts (p 43) that jurors may have initial doubts about circumstantial evidence, and still use it in coming to their decision; but, he continues, if they find the accused guilty of the main offence, that means they must, at that point, have no doubts about the similar fact evidence:

“It is impossible to declare the accused guilty beyond reasonable doubt if doubts about the circumstantial evidence remain at the end of the jury’s deliberations. Doubts about the evidence upon which a verdict is founded amount to doubts about the verdict.”

The Supreme Court of Canada mentioned the topic obliquely in Perrier. As to the question of admissibility, the Court said:

“[18] … The point is that we must be cautious when using propensity evidence in the context of identity. We want to be sure, on a balance of probabilities, that the same person committed the acts in question such that we can safely say it is not a coincidence nor a case of mistaken identity.”

Then,

“[23] Once the trial judge has determined that the crime charged and the similar act were likely committed by the same person, the judge must then consider whether there is evidence linking the accused to the similar act. …
If the similar facts relied upon were not in fact the acts of the accused, then they have no probative value.
“[24] The threshold is not particularly high. The trial judge must determine whether there is “some evidence” linking the accused to the similar acts. However, evidence of mere opportunity or possibility is not sufficient.”

All well and good, as far as admissibility is concerned. How, then, should the jury reason if the evidence is ruled admissible? The SCC followed the English approach:

“[29] … ‘The issue for the jury, once they are satisfied that it is the same gang who have committed both groups of offences, will be whether the prosecution have established on all the admissible evidence that the particular defendant was a member of that gang and, where the prosecution say that that defendant was a member of the gang on both occasions, whether the totality of the evidence has established that beyond reasonable doubt.’ “ (a quotation from R. v. Brown, [1996] E.W.J. No. 2403 (QL) (C.A.))

In Perrier it was held that the evidence should not have been admitted, and the Court did not need to examine in more detail how the jury might otherwise have properly used it. There does, however, appear to be consistency with the Mahoney approach.

It is not always necessary to go as far as Mahoney and require juries to convict on the similar fact charges if they also convict on the main charge. As was pointed out in Holtz, things that are, on the balance of probabilities, true, can combine with other evidence to establish something else beyond reasonable doubt. A jury may well be sure of the main charge and acquit on the others, as they did in Holtz. See also the entries under the heading Bayes’ Theorem in the Index to this site.

Last criminal appeal to the Privy Council

The final criminal appeal from New Zealand to the Privy Council is expected to be heard early next year. The Court of Appeal decision, R v Howse (2003) 20 CRNZ 826 has already been noted in this blog for its unrestricted view of the jurisdiction of that statute-based court to hear appeals based on claims of a miscarriage of justice. That point, of course, will not be the subject of the forthcoming appeal. The appeal will hinge, we may anticipate, on whether the accused had a fair trial. If he did not, the next question will be whether an unfair trial can be cured by the proviso that notwithstanding the unfairness there was no miscarriage of justice.

On the first, and threshold, issue, whether the accused received a fair trial, the Court of Appeal was less than forthright. It found that several errors had occurred, and that these could be regarded, “…prima facie at least, as having occasioned a miscarriage of justice” (para 43). The errors concerned the admission of evidence that should have been ruled inadmissible, and the failure of the trial judge to direct the jury on how evidence of what the murdered victims had said could be used by the jury. In effect, the appellant will have to persuade the Privy Council that the errors amounted to breaches of the right to a trial according to law by an unbiased jury; in other words, the right to a fair trial. The Court of Appeal was less than forthright because it did not say directly that these errors amounted to breach of the accused’s right to a fair trial. In calling the position a prima facie miscarriage of justice, the Court treated the concept of fair trial as being subject to whether there was a miscarriage of justice.

The second question, whether an unfair trial is necessarily a miscarriage of justice, can only be treated as open if one is prepared to acknowledge that, if a court thinks that the evidence against an accused is overwhelming, trial fairness does not matter. Most people, we venture to suppose, would baulk at reaching such a conclusion. A breach of the right to a fair trial should of itself amount to a miscarriage of justice.

The usual test for whether a miscarriage of justice has occurred is whether the accused has been wrongly denied a real possibility of an acquittal through an error or errors at trial. That requirement should not apply where the trial has been unfair to the accused.

The good and the bad

Although we have some reservations about the correctness of the Court of Appeal’s decision in R v Howse [2003] 3 NZLR 767; (2003) 20 CRNZ 826, it is reassuring to note a passage in the judgment that reinforces the primacy of justice over jurisdictional limitations:

“… The ultimate criterion on appeal is whether a miscarriage of justice has occurred. There cannot properly be any jurisdictional bar after trial preventing an accused from attempting to demonstrate such a miscarriage. Nor, for similar reasons, does it matter that evidence challenged on appeal was not challenged at trial. That does not jurisdictionally preclude this Court from addressing a point and giving effect to it if it has sufficient force.” (para 15)



To suggest that the Court will not let itself be constrained by statutory limitations on its jurisdiction, if that constraint would lead to a miscarriage of justice, may be taking this dictum too far. However, one is reminded of the sensible approach of the House of Lords, which, when confronted with applying a statute that would have prevented a fair trial for the accused, held that the statute, although absolute in its terms, nevertheless was subject to an implied exception which the court could “read in”: R v A [2002] 1 AC 45; [2001] 3 All ER 1, discussed in Mathias, “Criminal fairness in the House of Lords” [2002] NZLJ 435.

Who informed?

A recently reported case, although decided over a year ago, on 24 July 2003, illustrates how pressure of time can result in the Court of Appeal accepting unsoundly based submissions; R v De Bruin (2003) 20 CRNZ 782 (CA). The judgment was delivered the day after argument, because this was a pre-trial appeal and the trial was due to start within a short time.

The defence wanted to ask the police at trial who it was who had acted as a police informer, because grounds for attacking the credibility of that person may then have been apparent to the defence. It is only in rare cases that the identity of an informer will be a relevant matter, as for example where the informer may have planted evidence against the accused, or where the informer was in fact the offender and is seeking to pass blame on to the accused.Normally, if the police refuse to disclose information about an informer prior to trial, an application can be made by the defence for a court order for disclosure. Such an application will rely on the court’s inherent jurisdiction, in which case there is no right of appeal; it could not be made under s 344A of the Crimes Act 1961, which carries a right of appeal to the Court of Appeal, because until disclosure is made there is no evidence about which a ruling as to admissibility can be sought: R v Moore [2001] 2 NZLR 761; (2001) 18 CRNZ 519 (CA).

In De Bruin the Crown invited counsel for the defence to take the 344A approach, and in due course that was done. The invitation may have been disingenuous, because in the Court of Appeal the Crown changed its tack, arguing that:

“The essence of public interest immunity is that it protects from disclosure information which is otherwise relevant and admissible. The informer’s identity is admissible but protected.”



Of course at the stage at which this application was made, the trial was imminent, and the question was whether evidence of the informer’s identity could be elicited at trial, not whether it should be disclosed to the defence prior to trial. The Crown was deflecting the Court from the issue of the admissibility of an answer that a question at trial would elicit, by suggesting there was no issue about admissibility for the court to rule on under s 344A..

The Crown’s submission was, essentially, an argument that the informer’s identity could not be the subject of a 344A application or an appeal pre-trial because the issue was not the admissibility of the evidence of the identity of the informer; rather, suggested the Crown, the issue was for the trial judge, and was whether public interest immunity should be declined. That is, it was a matter for the trial judge in the exercise of the inherent power to prevent an abuse of process.

Unfortunately, the Court accepted this submission. However, the submission was flawed. If the identity of the informer was “protected”, it was inadmissible at trial; the real Crown submission was that although the informer’s identity was relevant, it should be ruled inadmissible. Indeed, in apparently conceding relevance (by accepting admissibility), the Crown could have been taken to be admitting that disclosure would assist the defence at trial.

If correct, the Crown’s submission would mean that no ruling about evidence that was sought to be excluded under the court’s inherent power to prevent an abuse of process would be a ruling about admissibility, because it would be a ruling about the discretionary exclusion of admissible evidence. In fact, such issues are routinely dealt with as admissibility issues and rulings are the subject of appeals. The usual construction of the legislation involves using the concept of admissibility in a broad sense: if the jury cannot learn of evidence, that is because it is “inadmissible”, even though, technically, it is “admissible but excluded pursuant to the court’s inherent jurisdiction.”

Analysing decisions into admissibility decisions, and decisions about the discretionary exclusion of admissible evidence, is useful in the context of determining the procedural rules concerning the operation of the discretion, but such analysis is not appropriate as an aid to statutory interpretation of s 344A.If the defence had used s 344A itself, applying for an order that questions it proposed to ask the appropriate witness (possibly the officer in charge of the case) would yield admissible evidence, the position would have been clear.

Another aspect of De Bruin is objectionable, although the Court can hardly be criticised for not anticipating the way the House of Lords would develop the law in R v H [2004] UKHL 3 (5 February 2004). In De Bruin it was presumed that the information could be withheld from the defence, subject to the defence satisfying the court that disclosure was necessary in the interests of trial fairness. In contrast, R v H held that full disclosure is to be presumed to be appropriate, and it is for the Crown to satisfy the court that information should be withheld; furthermore, if withholding of the evidence is permitted, the question then is whether the result would be a fair trial for the accused. If there would be unfairness to the accused, disclosure must be ordered even though the prosecution may then decide not to proceed with the case.

See also: Mathias, “Public interest immunity and fairness to the accused” [2004] NZLJ 301.