A slippery slope

What is a reasonable doubt? Judges and juries may disagree over whether the prosecution has established beyond reasonable doubt that a confession was obtained voluntarily.

If the judge thinks the prosecution has proved that the confession was voluntary, then it is admissible. The jury (or, perhaps, any individual juror) may, however, not think the prosecution has proved the voluntariness of the confession beyond reasonable doubt. Where that is so, the jury (or, perhaps, the juror) must ignore the confession. This was established in R v Mushtaq [2005] UKHL 22 (21 April 2005), in a decision departing from the law as it had been understood to be (Chan Wei Keung v R [1967] 2 AC 160, and disagreeing with Basto v R (1954) 91 CLR 628 HCA).

The Law Lords did not consider the difficulties suggested by the phrases I have put in brackets: does the jury act as a whole in determining the voluntariness of the confession, so that it is only voluntary if all jurors agree that the prosecution has proved that beyond reasonable doubt? Or, is it a matter for each juror individually to determine when assessing what evidence he accepts and what he rejects?

Normally, jurors are told to act as individual fact-finders; the only requirement for unanimity attaches to the verdict they reach. This suggests that some jurors might rely on a confession as evidence of guilt, because they are satisfied that it was made voluntarily and is in other respects reliable, whereas other jurors may have to reach a conclusion without using the confession if they have a reasonable doubt about its having been voluntary.

One would have thought that it is correct to regard the jurors as individuals on all matters except the verdict, although the Supreme Court of New Zealand has, without directly addressing the point, apparently regarded the jurors as having to be unanimous on whether the basis for a statutory presumption to operate has been proved: Siloata v R 16/12/04, SC CRI 8/2004.

Apart from this uncertainty, which will probably be resolved in favour of the jurors-as-individuals approach, Mushtaq carries the theoretical danger that weak judges will tend to ignore their own doubts about the voluntariness of confessions, knowing that the jurors will have to make up their own minds about that.

The rationale of Mushtaq is based on the right to a fair trial, and the associated right against self-incrimination, and the role of the jurors as the ultimate arbiters of fact (per Lord Rodger at para 46, 49, 54, Lords Steyn, and Phillips agreeing; and per Lord Carswell at para 73; Lord Hutton dissented on the law, holding that the traditional distinction between the functions of judge and jury, admissibility and weight, applied). Given that potentially broad base, one might wonder whether the admissibility consequences of other forms of official misconduct, for example wrongful search procedures, are going to be left to juries. Why should the defence be prevented, after an unsuccessful voir dire on the issue of unreasonability of search and the application of Shaheed balancing, from raising the same matters with the jury as the basis for a submission that they should ignore the evidence that the judge has ruled admissible?

To prevent that, emphasis would have to be given to the special responsibility of the judiciary to oversee the propriety of police conduct and to prevent abuse of process, but the majority in Mushtaq did not rely on that point. The 4 to 1 rejection of Lord Hutton’s approach counts against this view. The better argument is that Mushtaq is based in trial fairness, whereas the public policy exclusion of improperly obtained evidence does not necessarily involve trial fairness considerations, so the Judge has sole jurisdiction over the admissibility of that evidence. However, to argue that way is to concede (dangerously) that the jury should have jurisdiction to ignore evidence in the interests of what it considers to be trial fairness. The law is poised at the top of a slippery slope.

Turpitudinous driving

Motor manslaughter must be distinguished from causing death by reckless driving, causing death by dangerous driving, and causing death by careless driving. The Crimes Act 1961[NZ], s 150A(2) applies, inter alia, to motor manslaughter charges, and it requires “a major departure from the standard of care expected of a reasonable [driver]”.

While manslaughter requires that death be caused by an unlawful act, mere negligent driving, or dangerous driving, is of itself an insufficiently unlawful act to constitute manslaughter because those are separate offences. In R v Powell [2002] 1 NZLR 666 (CA) it was held that that where the unlawful act relied on as the basis of a manslaughter charge involves carelessness or negligence, the same high degree of negligence is required as for breaches of the legal duties to which s 150A expressly applies. See also R v Fenton [2003] 3 NZLR 439; (2003) 20 CRNZ 76 (CA).

What amounts to a major departure from the standard of care expected of a reasonable driver, so as to be more than dangerous driving causing death, is a matter for the jury to decide, and it is difficult to formulate general guidelines. The Privy Council has considered this in Brown v The Queen (Jamaica) [2005] UKPC 18 (13 April 2005). There, it was held that the offence of motor manslaughter must be defined in the context of similar offences such as, in that case, reckless driving causing death. This case is applicable to the New Zealand context, where there are offences of reckless, dangerous and careless driving. At para 25 of Brown the Board held:

“There must be proof of an extra ingredient, over and above the elements proof of which will ground a charge of causing death by reckless driving, but in their Lordships’ opinion juries have to be directed on the meaning of recklessness if they are to give proper consideration to a charge of motor manslaughter.”

An appropriate direction to the jury would need to be framed around the following considerations, para 30:

“(a) Manslaughter in this context requires, first, proof of recklessness in the driving of a motor vehicle, plus an extra element of turpitude. That extra element is that the risk of death being caused by the manner of the defendant’s driving must in fact be very high.
(b) The jury should be told specifically that it is open to them to convict the defendant of causing death by reckless driving if they are not satisfied that the risk of death being caused was sufficiently high.
(c) Proof of reckless driving requires the jury to be satisfied
(i) that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property;
(ii) that in driving in that manner the defendant had recognised that there was some risk of causing such injury or damage and had nevertheless gone on to take the risk.
(d) It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard which from their experience and observation would be observed by the ordinary and prudent motorist.
(e) If satisfied that an obvious and serious risk was created by the manner of the defendant’s driving, the jury must, in order to reach a finding of recklessness, find that he appreciated the existence of the risk; but they are entitled to infer that he was in that state of mind, though regard must be given to any explanation he gives as to his state of mind which displaces the inference.”

In New Zealand law, reckless driving involves foresight of dangerous consequences that could well happen combined with an intention to continue a course of conduct even though those consequences are a clear risk: R v Harney [1987] 2 NZLR 576 (CA). This might be compared with the law of England and Wales, which is currently that (Brown, para 26) a person is reckless with respect to “(i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk”: R v G [2004] 1 AC 1034. In New Zealand, the position is summarised in Brookers Law of Transportation as:

“… there are three elements involved in proving reckless driving:
(a) The driver fell below the standard of care expected of a reasonable and competent driver.
(b) The resulting situation was objectively dangerous.
(c) The driver was aware of the potential danger and continued to act despite knowledge of the possible consequences.”

Reckless driving is thus dangerous driving with an added element of foresight. Dangerous driving is judged objectively, but includes a requirement of failure to meet the standard of care required of a reasonable and competent driver.

Brown should be of assistance in motor manslaughter cases in New Zealand. Whether a conviction for manslaughter is appropriate in respect of a death arising from reckless driving will be a matter for the jury to determine according to whether the risk of death, in the circumstances known to the accused, was, judged objectively, “very high”. What the accused knew includes what he was indifferent to, and what he closed his mind to: R v Reid [1992] 1 WLR 793 (HL) per Lord Goff at 810 – 811.

Another aspect of Brown is the treatment of three points which were submitted to have given rise to substantial miscarriages of justice. These were: unfairness in the judge’s summing up; failure in the summing up to distinguish the functions of judge and jury; failure of defence counsel to rely on the accused’s good character.

The first point was considered in the context of the summing up as a whole, and it was held that there was no unfairness. There was thus no miscarriage of justice, and a fortiori no “substantial” miscarriage of justice, and the proviso did not need to be resorted to.

The failure to distinguish functions of judge and jury was made out as a point, but again, read in the overall context the Board was able to conclude (“not without hesitation”: para 34) that the jury would have been aware of its proper function. The judge’s misdirection was a miscarriage of justice, but it was not substantial, and the proviso was applied.

The good character point was a “regrettable omission” by counsel (para 38), but again, on balance, the proviso was applied because the miscarriage of justice was, in the particular circumstances of the case, not substantial.

Words for the living, money for the dead

Remedies available to prisoners who have been denied the right to a fair hearing, or denied the right to legal representation, on charges relating to prison discipline, may be quite modest. In Whitfield and Others v. the United Kingdom (nos. 46387/99, 48906/99, 57410/00 and 57419/00), 12 April 2005, the European Court of Human Rights found in favour of 3 prisoners, one of whom was now dead, and held that for the two who were still alive, the findings of the Court were just satisfaction, and the deceased prisoner’s estate was awarded E3,000 for non-pecuniary damage. Each was awarded E2,500 for costs and expenses.