Bain, again

Supporters of David Bain will, no doubt, be studying Mallard v R [2005] HCA 68 (15 November 2005). Both started as petitions for the exercise of the Royal prerogative. Just as in R v Bain [2004] 1 NZLR 638, (2003) 20 CRNZ 637 (CA), this was a reference to the court of the question of the conviction of the petitioner, although, in Mallard, the proceedings reached the High Court of Australia on appeal from the determination of the reference by the Court of Criminal Appeal of Western Australia. The equivalent New Zealand provision is s 406 of the Crimes Act 1961. In Bain, the Court of Appeal noted, para 4, that

“A reference under s 406(a) has the effect of an appeal against the convictions so referred. Hence this Court must consider the matters arising as if David Bain was appealing against his convictions a second time.”

In Mallard, the corresponding provision was described, at para 6, in the following terms:

“The significance of this history for present purposes, is that the exercise for which s 140(1)(a) of the Sentencing Act 1995 [WA] provides is effectively both a substitute for, and an alternative to, the invocation, and the exercise of the Crown prerogative, an exercise in practice necessarily undertaken by officials and members of the Executive, unconfined by any rules or laws of evidence, procedure, and appellate conventions and restrictions. That history, briefly stated, argues in favour of an approach by a court on a reference of a petition by the Attorney-General to it, of a full review of all the admissible relevant evidence available in the case, whether new, fresh or already considered in earlier proceedings, however described, except to the extent if any, that the relevant Part of the Act may otherwise require.”

A significant point concerning the approach of the appellate court in these circumstances (where fresh evidence is relied on by the petitioner) was made in Mallard. This is that it is wrong for the appellate court to view the evidence in a way that is constrained by the verdict that had been reached at trial. At para 10 of Mallard the Court criticised the approach taken by the CCA (WA) whereby limitations were perceived on the court’s jurisdiction to consider the evidence. Instead, the HCA held that the reference of “the whole case” to the appellate court carried no such limitations, and

“…The inhibitory purpose and effect of the words “as if it were an appeal” are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and further, and perhaps most relevantly, to require the Court to consider whether the overall strength of the prosecution case requires the Court to apply the proviso …”.

The corresponding New Zealand provision does not use the phrase “the whole case”, but it is clear that the meaning is intended to be the same. It refers to “the question of the conviction”, and, as with the Western Australian provision, it contrasts that with reference of “any point arising in the case”.

It seems fair to say, therefore, that on reference of the conviction, the Court of Appeal should not feel constrained in its view of the facts by the jury’s decision. It is wrong, on this view, to say that because the jury must have accepted certain evidence, that that evidence carries enhanced status for the purposes of determining the reference.

Another indication of the correct approach, stated in Mallard at para 23, is

“It was not for the Court of Criminal Appeal to seek out possibilities, obvious or otherwise, to explain away troublesome inconsistencies which an accused has been denied an opportunity to explore and exploit forensically.”

In a separate, concurring, judgment, Kirby J held, para 84, that in a fresh evidence case, the question was whether absence of that evidence

“… could have seriously undermined the effective presentation of the defence case, [as] a verdict reached in the absence of the material evidence (and the use that the defence might have made of it) cannot stand.”

Mallard also contains a useful review of the prosecution’s duty of disclosure of evidence to the defence.

In the light of Mallard, the need to reconsider Bain is clear.

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Death and certainty

How much formalism is too much? In interpreting statutes, to resolve an ambiguity, judges may focus on the context of the problematic phrase: the paragraph, subsection, and the placing of the section in the scheme of the Act, are considered. In addition, standard tools of interpretation, such as ejusdem generis, and noscitur a sociis, may be used.

Another approach, which may be used in conjunction with this formalistic method, or as an alternative, is the purposive, or pragmatic approach. According to this, the meaning of ambiguous legislation should be determined by reference to what would promote or further Parliament’s purpose in enacting the provision.

There is no consistency in approach to interpreting ambiguous criminal legislation. For example, in R v Secretary of State for the Home Dept; ex p Pierson [1998] AC 539, Lord Steyn said at 585:

“Counsel for the Home Secretary argued that the fixing of the tariff cannot be a sentencing exercise because the judge pronounces the only sentence, ie one of life imprisonment. This is far too formalistic. In public law the emphasis should be on substance rather than form. This case should also not be decided on a semantic quibble about whether the Home Secretary’s function is strictly ‘a sentencing exercise’. The undeniable fact is that in fixing a tariff in an individual case the Home Secretary is making a decision about the punishment of the convicted man.”

And, in R v Karpavicius [2002] UKPC 59 (PC) Lord Steyn said, para 15:

“…In a more literalist age it may have been said that the words of s 6(2A)(c) [of the Misuse of Drugs Act 1975[NZ]] are capable of bearing either a wide and narrow meaning and that the fact that a criminal statute is involved requires the narrower interpretation to be adopted. Nowadays an approach concentrating on the purpose of the statutory provision is generally to be preferred: Cross, Statutory Interpretation (3rd ed), 1995, pp 172-175; Ashworth, Principles of Criminal Law (3rd ed), 1999, pp 80-81. This is reinforced by s 5(1) of the Interpretation Act 1999 [New Zealand] which provides that the meaning of an enactment must be ascertained from its text and in the light of its purpose.”

We must, then, wonder whether Lord Steyn has consistently taken this pragmatic approach in Smith v The Queen (Jamaica) [2005] UKPC 43 (14 November 2005). Here, the Privy Council split 3-2 on a question of interpretation, and Lord Steyn was part of the majority.

The issue in Smith was the meaning of the phrase “in the course or furtherance of” in the definition of capital murder in Jamaica. There, capital murder (ie where the sentence may be death) occurs where murder is committed “in the course or furtherance of … burglary or housebreaking” (s 2(1)(d) of the Offences Against the Person Act 1864, as amended in 1992).

The facts of Smith were refreshingly brief; they were summarised in the minority judgment, para 18, as “The appellant stood on a ladder against the outside of the deceased’s house at night, pulled aside a curtain and a piece of plastic in a window, inserted his head and upper body through the window and struck the deceased a number of blows with a machete as she lay in her bed under the window.”

There was no doubt that his entry with felonious intent constituted burglary. The question was whether the murder was in furtherance of the burglary. He committed the burglary with intent of murdering. The minority considered that the murder was therefore committed in the course of or in furtherance of the burglary. This, one might have thought, is the ordinary and natural meaning of the phrase. But no; another interpretation is possible: the offender had a single purpose of murder, and the burglary was in furtherance of the murder, not the other way around, so the murder was not within the definition of capital murder. This was the majority view.

There are two competing public policy justifications. The minority refer, para 23, to the purpose of the section as being:

“…to protect citizens from being murdered in their own homes by intruders who break in at night and to deter offenders from committing such murders. We consider that the legislature could not have intended that an intruder who broke into a house, which he believed to be unoccupied, for the purpose of stealing therein and then, coming upon the occupier, killed him or her, should be guilty of capital murder, but that a person who broke into a house with the express purpose of killing the occupant and did so should not be guilty of capital murder.”

On the other hand, the majority refer, para 8 to:

“The vice in these cases, which was thought by …[Parliament] to justify the death penalty, was that the defendant resorted to killing his victim in the course or furtherance of committing the [lesser offence]. It was the wanton and cynical nature of the killing, the debasing in the context of a comparatively minor criminal act of the value that is to be attached to human life, that was regarded as particularly reprehensible.”

The majority adhered to authority that required a “duality of purpose” before capital murder was committed: Lamey v The Queen [1996] 1 WLR 902 (PC). Such adherence to precedent is an illustration of formalism being dominant over pragmatism: see Thomas, “The Judicial Process” (2005). Thomas would remove all formalism from the law, whereas the current approach of courts is to employ either formalism, pragmatism, or a blend of them both, as seems appropriate.

This is also illustrated in Lamey, where the Board (which again included Lord Steyn) considered the interpretation of another paragraph of s 2(1) of the Jamaican legislation. This one, (f), includes within the definition of capital murder, any murder committed in furtherance of an act of terrorism. The unanimous judgment refers to the approach to penal statutes:

“6. The starting point in any consideration of section 2(1)(f) must be the fact that its object was to reduce the categories of murder which attracted the death penalty. It follows that a construction which produces little or no reductive effect is unlikely to be correct. Furthermore regard must be had to the general principle that a person should not be penalised and in particular should not be deprived of life or freedom unless under clear authority of law (Bennion’s Statutory Interpretation, 2nd Edn. page 574).”

Note the slightly more restrictive approach endorsed here, compared with that taken in Karpavicius, above. In Lamey the conclusion was that paragraph (f) required two intents:

“8. … In their Lordships’ view the paragraph requires there to be a double intent on the part of the murderer namely an intent to murder and an intent to create a state of fear in the public or a section thereof.”

In Smith, this approach was applied to paragraph (d), and this reasoning is an example of formalist analysis.

Dealing with vagueness

Rights may be expressed in unavoidably vague terms, so how can they be said to be absolute? An example is the right not to be subjected to inhuman or degrading treatment. Does it make sense to say that this right is absolute?

This was the fundamental question that confronted the House of Lords last week in R v Secretary of State for the Home Department, ex parte Adam [2005] UKHL 66 (3 November 2005). It was decided that this right is absolute, once a threshold level of inhuman or degrading treatment has been reached, and that the threshold is relative to the circumstances of each case. Furthermore, the threshold is a high one (except where pain and suffering are deliberately inflicted).

It may be clearer to say that, once treatment can properly be described as inhuman or degrading, then there has been a breach of the right. To say that the threshold is a high one (in particular, Lord Bingham, para 7) is really a way of saying that inhuman or degrading treatment must be relatively harsh. How harsh, depends on the circumstances. On this point, Lord Hope quoted, at para 54, cases from the European Court of Human Rights:

“But the European Court has all along recognised that ill-treatment must attain a minimum level of severity if it is to fall within the scope of the expression “inhuman or degrading treatment or punishment”: Ireland v United Kingdom (1978) 2 EHRR 25, 80, para 167; A v United Kingdom (1998) 27 EHRR 611, 629, para 20; V v United Kingdom (1999) 30 EHRR 121, para 71. In Pretty v United Kingdom 35 EHRR 1, 33, para 52, the court said:

‘As regards the types of ‘treatment’ which fall within the scope of article 3 of the Convention, the court’s case law refers to ‘ill-treatment’ that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.’

It has also said that the assessment of this minimum is relative, as it depends on all the circumstances of the case such as the nature and context of the treatment or punishment that is in issue. The fact is that it is impossible by a simple definition to embrace all human conditions that will engage article 3.”

Significantly, the House of Lords in Adam rejected the spectrum analysis applied in the Court of Appeal, pursuant to which the question whether inhuman or degrading treatment amounts to a breach of the right depends on whether it is nevertheless justified, for example by government policy. Lord Brown, while not actually approving the spectrum analysis, came close to applying it by reasoning that the motive for the treatment may be relevant (para 94). Lord Hope, while not expressly distancing himself from Lord Brown’s approach, pointed out, at para 55, that it would be wrong to include government policy in the assessment of the threshold as that would allow proportionality in by the back door.

Given, then, that the concept of inhuman or degrading treatment is not qualified by considerations of government policy, how close can we get to a definition of it? Lord Bingham put it like this, para 8-9:

“… The answer must in my opinion be: when it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life. Many factors may affect that judgment, including age, gender, mental and physical health and condition, any facilities or sources of support available to the applicant, the weather and time of year and the period for which the applicant has already suffered or is likely to continue to suffer privation.
[9] It is not in my opinion possible to formulate any simple test applicable in all cases. But if there were persuasive evidence that a late applicant was obliged to sleep in the street, save perhaps for a short and foreseeably finite period, or was seriously hungry, or unable to satisfy the most basic requirements of hygiene, the threshold would, in the ordinary way, be crossed.”

We might like to consider whether this approach is applicable, by analogy, to the determination of fair trial issues. Whether the appropriate circumstances amount to unfairness can depend on the assessment of factors such as whether the accused would be able properly to challenge the prosecution case, and whether the case would be determined by an unbiased tribunal. Once that arises (not: once that threshold is crossed), then there is a breach of the absolute right to a fair trial.

Leaving readers with that thought, I return to celebrating the 25th anniversary of the publication of my first article, which appeared in England, in what was then the leading criminal journal in the common law world, the Criminal Law Review.