Whose verdict?

Appeals against conviction require consideration of whether there has been a substantial miscarriage of justice. This, in turn, can raise two questions: whether the trial was fair, and, whether the accused was wrongly deprived of a real chance of an acquittal. These are independent questions. The latter is often (and wrongly) taken to be an opportunity for an exacting judicial analysis of the evidence, notwithstanding the oft-repeated claim that it is not for the appellate judges to substitute their verdict for that of the jury. R v Bain [2004] 1 NZLR 638, (2003) 20 CRNZ 637 (CA) is a prime example of applying the trained judicial mind to the analysis of the evidence, rather than considering how the jury might have reacted to proposed new evidence.

An interesting observation on the fact that jurors may not apply linear logic to their task of coming to a verdict was recently made by Kirby J (happily siding with the majority) in R v Stevens [2005] HCA 65 (21 October 2005), para 82:

“One assumes that the human mind, and even more the collective mind of a jury, operates in serious decision-making, rationally and reasonably. But the mind does not necessarily act according to linear paths of strict logic. At any time in a criminal trial, several issues are in play. As Callinan J correctly points out [at para 158: “Nor do I think it is an answer in this case to say that one defence, or a direction in respect of it, subsumed another to the extent that the latter needed not to be mentioned or put to the jury in appropriate terms. Different people may have different perceptions of facts. Certain words, or language, or expressions of concepts, may provoke different responses in different people”], different people, especially a group of people, may have different perceptions of facts and of words, expressions and language (such as on being told of the substance of the Code’s provisions on accident). The appellant, who was facing, if convicted, the heaviest penalty known to the law, was entitled to have the chance of a favourable response of the jury to the exemption provided by the Code from criminal responsibility for accident, properly explained. The trial judge ought not to have deprived the appellant of that chance.”

An example of acute judicial analysis of the trial evidence, this time with a view to discovering whether the accused had been deprived of the right to adequate facilities to prepare a defence, is the judgment of Thomas J in R v Griffin [2001] 3 NZLR 577, (2001) 19 CRNZ 47 (CA). He concluded that on the evidence, lack of opportunity to have a defence expert examine the complainant did not adversely affect the result, and therefore there was no unfairness. That was, with respect, an incorrect melding of the two questions set out above. He may well have been correct to conclude that there had been no loss of a real chance of an acquittal, on the evidence adduced at trial. But, if the trial was unfair there should have been (as the majority held) a substantial miscarriage of justice. Thomas J treated procedural fairness as irrelevant if the verdict appeared to be correct. He allowed pragmatism (or, as he calls it, substantialism) to override the formal requirements of a fair trial. The majority of the Privy Council did the same in R v Howse [2005] UKPC 31 (19 July 2005), blogged here on 23.7.05. In Griffin, the majority held that had it could not be said that, had the error not occurred, the jury would inevitably have convicted, and a new trial was ordered. They did, however, recognise that this consideration of the second question was probably unnecessary, as they had found that the trial had been unfair. They said, para 40, that it was difficult to imagine a case where there would not be a substantial miscarriage of justice after a breach of the relevant right.

Helpful Acts?

Legislation can make the law absurdly complicated. In Tabe v R [2005] HCA 59 (6 October 2005) Australia’s senior judges split 3 – 2 on an issue that should have been simple. When a person is charged with attempting to get possession of a drug, does the prosecution have to prove that he believed that he could do so?

A refreshingly simple person would think the answer obvious. Why would someone try to get something unless he thought he could? Sad to say, in Queensland things are not so straightforward. That State’s Criminal Code, s 24, provides:

“(1) A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.
(2) The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”

Where this applies, an innocent belief will be a defence if it goes to an essential ingredient of the offence. So, if it is reasonably possible that you thought the thing you were trying to get was some substance you were entitled to have, you would not be guilty of unlawfully attempting to obtain a drug. Fair enough.

Unfortunately, the Drugs Misuse Act 1986 (Q), s 57, makes the position obscure. It provides, in para (d):

“(d) the operation of the Criminal Code, section 24 is excluded unless that person shows an honest and reasonable belief in the existence of any state of things material to the charge.”

Seems redundant, you might think. However, one of the cherished ideas in what is called “statutory interpretation” (as if statutes were written in foreign languages) is that the words of an Act are to be given effect because the legislature would not have intended redundancy.

So, the next logical step seems to be to ask, what are the things that s 57(d) calls material to the charge? Section 57(d) appears to be saying that honest and reasonable mistakes about these are matters for the person charged to prove. This would give it an effect beyond that of s 24 of the Code, which may not place a burden of proof on the defendant. So the issue would then be, what does the prosecution have to prove, before the burden shifts to the defence if a mistake is being relied on?

Back to attempting to get possession of a drug. The physical ingredients of the offence were not critical in Tabe. It was not argued, on the facts of the case, that the defendant had not done acts sufficiently proximate to the completion of the offence to amount to an attempt to commit it. It was the mental elements of the offence that were the focus of the dispute.

On first principles, putting aside the judicial reasoning in Tabe, one would have thought that, if belief that the thing is a drug (the essence of the mistake which was, according to s 57(d) for the defence to prove) is not something that the prosecution has to prove, all that the prosecution must prove to establish a prima facie case is the defendant’s intention to perform the acts that he did. This, indeed, is what the majority held (Gleeson CJ in a separate judgment, and Callinan and Heydon JJ in a joint judgment).

The minority (McHugh and Hayne JJ, in separate judgments) saw the issue in two ways. McHugh J focused on the requirement of attempt that the defendant must have had an intention to commit an offence, so that an intention to obtain a drug (and hence a belief that the thing was a drug) was a matter for the prosecution to prove to establish a prima facie case. He also agreed with Hayne J’s approach, which reached the same conclusion by an analysis of the ingredients of possession.

I should point out, here, that none of the judges in Tabe used the expression “prima facie case” except (twice) where it appeared in quotations from another case. It is useful to remember the fundamentals of criminal law. Where an attemptis alleged, it is inevitable, if the prosecution case is to get off the ground, that evidence of belief in the existence of the thing sought, will have to be aduced. In Tabe, (I simplify the facts a little), the defendant thought that an envelope he was collecting contained a drug. It did not, because it had been intercepted by the police and its contents had been replaced with an innocuous powder. Hence the charge was attempt, rather than the full offence of possessing the drug. The evidence in the case included these background matters, and of course established a prima facie intention by the defendant to obtain a drug. Without that evidence, the prosecution could have hardly established a prima facie case by proving that the defendant went to collect an envelope. We would all be on trial, if that were sufficient.

Pragmatism must have motivated the Chief Justice of Australia to deliver the rather ham-fisted justification for his approach (para 20), namely that because most people charged with this claim that their intentions were innocent, that should be a matter for them to prove.

Legislation that speaks briefly can cause problems. Parliament need not try to emulate the Ten Commandments, admirable at least for their brevity. (Horace: “brevis essere laboro, obscurus fio.” I try to be brief, but I become obscure.) Getting down to detail, in the tradition of Leviticus, can be appropriate. However this too can be taken too far, as our Sentencing Act 2002 illustrates; it reads like a Dummies guide. But, I digress. It would be appropriate for legislators to remember Cicero’s remark (De Natura Deorum, iii, iv): “The clarity of the case is impaired by arguments.”

Silence

Broad common law rights that have been included in the Bill of Rights are not limited to the extent of their definition in the Bill. For example, s 23(4) of NZBORA provides that everyone who is arrested or detained under any enactment for any offence or suspected offence has the right to refrain from making any statement. But if the person questioned has not been detained or arrested, the right to silence that exists at common law continues to apply.

In R v Turcotte [2005] SCC 50 (30 September 2005) the Supreme Court of Canada referred to the common law right to silence (para 41):

“41 Under the traditional common law rules, absent statutory compulsion, everyone has the right to be silent in the face of police questioning. This right to refuse to provide information or answer inquiries finds cogent and defining expression in Rothman v. The Queen, [1981] 1 S.C.R. 640, per Lamer J.:
“In Canada the right of a suspect not to say anything to the police … is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do otherwise by law. It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise. [Footnotes omitted; p. 683]””

Silence, however, can, albeit only rarely, be indicative of a consciousness of guilt. Other types of conduct that can indicate a consciousness of guilt are flight, resisting arrest, breach of bail, concealment (lying, giving a false name, using a disguise, disposing of evidence). Silence, however, is special insofar as the person has the right to be silent, and this right would be rendered illusory if it could be used to support an inference of guilt.

This was recognised in Turcotte, where examples of the limited circumstances in which the silence of an accused may be rendered relevant and probative were cited (para 49 – 50): where the defence claim the accused co-operated with the police, where the defence alleges that the police investigation was flawed, and where alibi is not disclosed before trial. Silence may also be relevant to credibility (not as proof of guilt) where two accuseds jointly tried blame each other for the offending, and one gives evidence at trial but had not made a statement to the police (para 48).

The right to silence is not waived merely because the suspect answers some questions (para 52). The fact that the accused was silent may be an inextricable part of the narrative, but, where it is, the judge must tell the jury that it is not evidence of guilt. Failure to do so can result in a new trial being ordered, as it was in Turcotte.