Overcoming the void

As everyone knows, the law of Scotland has its origins in Roman-Dutch law. Its technical language can look a little strange to English jurists. A recent Privy Council decision on Scottish law illustrates how light can be shed on common issues. Here, in Ruddy and others v Procurator Fiscal [2006] UKPC D2 (6 February 2006), the Judicial Committee leant heavily on the expertise of Lord Rodger, all members agreeing with his opinion.

I will describe the case, insofar as I can, in English.

If a judicial proceeding is fundamentally flawed, so that in oft-used terminology it may be called “null and void”, or “a nullity”, may its result nevertheless be regarded as final?

These appeals concerned convictions and sentences that had been imposed by a tribunal that had no jurisdiction to act. They therefore, it was agreed, were in breach of the appellants’ rights to a “hearing” under s 6 of the ECHR. They had delayed 2 years before complaining of that by bringing the actions that resulted in these appeals.

Two concepts that operate in the context of errors are waiver and acquiescence. Waiver is active, and acquiescence is passive, acceptance that the error does not matter. They can operate where there is delay in seeking a remedy. In the absence of an applicable time limit on seeking redress, action must be taken within a “reasonable” time, as policy favours finality and stability. Acquiescence may be inferred from delay and the circumstances of the case (see paras 28, 37, 38, 46).

Here, if objection had been taken promptly, re-hearings could have been ordered before properly constituted tribunals and proper convictions would, inevitably, have been obtained (para 41). If a remedy was now allowed, justice might not be done in view of the effect of the passage of time.

Lord Rodger pointed to examples where errors causing the proceedings to be a “nullity” were nevertheless cured by acquiescence (para 48). Central to the acceptability of this is reasoning along these lines: a defect can be waived before the conclusion of the proceeding, so there is no reason why acquiescence after it cannot be effective (para 50). Lord Carswell elaborated this at para 58, “…in either case … [the defendant] is representing, expressly or tacitly, that the court is acceptable to him …”.

In essence, a flaw in the proceedings can be waived or acquiesced in, even if it is fundamental.

This is potentially relevant to a proceeding which the Supreme Court of New Zealand will hear this week: Hansen v R (previously noted in these blogs on 19 September 2005). If the Court decides that the reverse onus provision in question, s 6(6) of the Misuse of Drugs Act 1975, puts merely an evidential, not a legal, burden of proof on the defence, questions may arise about convictions that have been incurred in trials where juries have been directed differently. While a misdirection on the standard of proof will normally result in the quashing of a conviction, it is, arguably, not so fundamental an objection as lack of jurisdiction by the tribunal. Nevertheless, given that it was possible to anticipate that the New Zealand law on reverse onuses would be brought into line with English law, can it now be said that people who were convicted before the change (assuming, of course, that Hansen does change the law) acquiesced in the error?

A straightforward solution to this would be to say that Hansen changes (again, assuming that it will change) the law from the date it is decided, and that earlier trials (but not Hansen’s, as these are still his proceedings) where heard under the law as it was then correctly understood to be.

The "overarching requirement" of fairness

The interrelationship between the requirements that statements be made voluntarily, and that trials be fair, was central to the unanimous decision of the Judicial Committee in Shabadine Peart v R (Jamaica) [2006] UKPC 5 (14 February 2006).

Which is the dominant requirement? If a confession was made voluntarily, should it always be admissible? If it was obtained wrongfully, but still given voluntarily, should it always be admissible? Obtaining a statement wrongfully can result in lies being told which unfairly diminish the credibility of the defence. This was the position in Shabadine Peart. Should such a statement be admissible, because it was made voluntarily, even though it could result in unfairness at trial? Is it necessary that the effect of the misconduct in obtaining the statement would be to make the trial unfair, or can exclusion of the wrongfully obtained statement be justified on broader grounds of public policy?

I should note, at this point, that this case focuses on the effect of admission of the wrongfully obtained statement on trial fairness, when that matter would not arise unless the statement should have been excluded on public policy grounds. If there were no public policy grounds to exclude the statement, there could be no trial fairness objection to its admission. Yet, once there were sufficient public policy grounds to exclude it, the appellate court had to deal with the fair trial implications of the error.

Well, aside from that matter, what does Shabadine Peart decide about trial fairness? It follows a line of cases, not cited in the judgment but referred to frequently in these blogs, that puts fairness as the overarching criterion (para 23). The most important facet of fairness is the voluntariness of the statement by the accused, and also relevant are factors such as his youth, and whether he received legal advice before making the statement.

The case involved breaches of Rule 3(b) of the Judges’ Rules, which concerns restrictions on questions that may be put to the accused after he has been arrested. The Privy Council doubted that in the circumstances the statement could be regarded as voluntary, but, even if voluntary, it was unfair to admit the statement in evidence (para 29). This was because it contradicted some of the evidence given or called by the accused at trial, and could therefore be used by the prosecution to diminish the credibility of the defence.

Well, it would only be wrong to admit such a statement if it had been wrongfully obtained in such a way as to give rise to public policy concerns over disrepute to the administration of justice. In my view, as stated above, the Board’s comments on trial fairness were unnecessary and misleading.

At this point in the judgment it was necessary to consider the application of the proviso – itself an interesting topic, considered in these blogs. It was held that if the statement had been excluded, the course of the trial may have been very different and the defence may have succeeded (para 30). This is recognisable as the criterion of whether the error at trial had resulted in the loss of a real chance of acquittal. That was sufficient to prevent application of the proviso. It should be noted that the Board is not, here, relying on the trial fairness aspect of application of the proviso, but instead is, properly, determining whether the error at trial had had significance for its result. Inconsequential errors in the application of the public policy discretion do not, by definition, matter.

Some aspects of Rule 3(b) are also mentioned. These include the history and rationale for the Rule, the distinction between the suspicion and accusation phases of the police inquiry, and judicial experience of the tendency of those who have told the truth to tell lies to avoid pressure (paras 18 – 20).

Easy does it!

The Supreme Court’s decision in Thompson v R [2006] SCNZ 3 (15 February 2006), in which answers to questions at trial were held not to have caused unfairness, gives us an opportunity to reflect on the art of cross-examination.

In my view, the following ten are fundamental points that must be remembered by counsel faced with the task of cross-examining a witness:

1. Find out beforehand the worst that the witness could say, from your client’s point of view.

2. It is unlikely that the witness will be compelled, by your questioning, to tell lies that suit your client.

3. If you are trying to get the witness to change an assertion, it may be best to start by suggesting reasons the witness may be honestly mistaken. This is because an aggressive approach to cross-examination is less likely to find sympathy with the jury than an approach which assumes the witness will in good faith acknowledge ordinary human failings.

4. An aggressive approach is unlikely to succeed with an aggressive witness. Gently hinting at common sense reasons for the witness’s error is preferable, especially if the jurors are likely to accept them.

5. Where the witness can be contradicted by his own previous statement, make the most of that by getting him to give as much “detail” as possible first, before putting the contradicting statement. This applies as long as the witness is unlikely to have been wrong in the previous statement, and where that earlier statement is more favourable to your client than the witness’s present testimony.

6. There is a duty to put your client’s case to the witness. This can be done point by point, in questions that take the form “Didn’t X?”, “Didn’t Y?” etc. This is stronger than the formula that is commonly encountered: “My client will give evidence and say that X, what do you say to that?”

7. Don’t ask unnecessary questions. Don’t ask questions that are open-ended, such as “Why do you say that?” Lead the witness as much as possible, to give your questioning a focus that the jury understands. One of the purposes of cross-examination is to get the witness to say what you want him to say, to score a point and/or to undermine your opponent’s case.

8. Don’t ask questions that you don’t know the answer to, unless the whole tenor of the case points in the direction of the answer you want and any other answer would lack credibility.

9. If you have to attack the witness as a liar, remember that this strategy may result in the jury learning of your client’s own bad character (including previous convictions).

10. If your client is of good character, and if you rely on that as part of your case, take opportunities to use it in cross-examination; this can be tactically advantageous as it should result in the judge directing the jury on your client’s good character.

In Thompson, experienced trial counsel was drawn in to engaging in what the Court of Appeal called a “slugfest” with the witness: see R v Thompson 16/6/05, CA445/04, para 56. This, of itself, was not necessarily an error, as the Court of Appeal noted, at para 66:

“… robust cross-examination is one of the many options open to counsel, who must be accorded wide discretion.”

But the Court added, para 69:

“Generally, counsel find it politic to conduct cross-examination with ‘a measure of courtesy’ ….”

The conclusion, upheld by the Supreme Court, was that the evidence that was inadmissible but which was given in cross-examination, when seen in context, and in the light of a strong warning by the judge to the jury about its use, did not cause a miscarriage of justice.

Rushing to judgment

Cutting to the chase in trials can look unfair. Where legal submissions are necessary, judges may be tempted to deal with them peremptorily, risking the appearance of bias. The bounds of proper judicial conduct were crossed at the trial that was the subject of the appeals jointly heard in Antoun v R [2006] HCA 2 (8 February 2006).

The judges of the High Court of Australia all agreed that the trial had been handled in a way that created the appearance that the judge was biased against the defence. This “apprehended bias”, is

“the appearance of a possibility of an absence of an impartial mind on the part of the judge”

(per Callinan J at para 83, with whom the other members of the Court agreed). As Kirby J noted, para 28:

“…The manifest observance of fair procedures is necessary to satisfy the requirements not only of fairness to the accused but also of justice before the public so that they may be satisfied, by attendance or from the record, that the process has followed lines observing basic rules of fairness. Excessively telescoping the procedures in such cases can lead to a sense of disquiet on the part of the accused, and of objective observers whose attitudes, where relevant, must be represented, and given effect, by appellate courts.”

In this case the judge, on being told at the close of the prosecution case, that the defence counsel for each accused would make submissions that there was no case to answer, immediately said that such submissions would be rejected. This was said before an opportunity to make those submissions was given. It was a trial by judge alone, but that is not material because even in a jury trial such submissions would be heard in the absence of the jury.

Callinan J held that the judge’s conduct gave an appearance of pre-judgment, and therefore, para 86:

“It follows that the apparent strength of the respondent’s case, and the weaknesses of the appellants’ defence cannot be used as justification or excuse for the trial judge’s expressions of a determination to reject submissions foreshadowed, but not yet made and developed.”

Gleeson CJ put it this way, para 23:

“…The judge regarded this as a strong case of extortion. He formed the view, with good reason, that the no case to answer submission was likely to be implausible. Yet he should not have decided to reject it without giving counsel an opportunity to put the argument. In the circumstances, that would not have required much time. The way in which the judge dealt with the no case argument, and later with the question of bail, gave rise to an appearance of lack of impartiality. Strong as the case against the appellants appeared to be, they were entitled to a fair hearing.”

This case did not include submissions on whether the proviso could be relied upon to dismiss the appeal. However, Kirby J noted, para 49, that the denial of the opportunity to make submissions before decision would probably be a sufficient miscarriage of justice to make the proviso inapplicable, and that, had the case been argued on the proviso, it would have required consideration of Weiss v The Queen [2005] HCA 81 at [45] (see these blogs, 16 January 2006).
We might, by now, anticipate that a case of apprehended bias would be a substantial miscarriage of justice, given the fundamental importance of the appearance of justice, but one must acknowledge that there is, at least, an argument that whereas actual bias would be a substantial miscarriage of justice, apprehended bias falls short of that in cases where there was no loss of a real chance of acquittal.

Consideration of Antoun raises a number of fundamental questions. Is there a difference between so-called “apprehended” bias and “actual” bias? If there is such a thing as apprehended bias, does it fall within the scope of the accused’s right to a fair hearing, or is it an associated right? Current jurisprudence suggests that if it is the former, it is absolute, but if it is only an associated right then it is subject to balancing against competing values. Doesn’t the actual decision in Antoun (that apprehended bias requires a retrial even where the judge’s ruling was correct) mean that the real issue in the case was not whether the hearing had involved bias (whether actual or apprehended), but rather whether there had been a “hearing” on the relevant issue? On analysis, the real reason a retrial was necessary in Antoun is that the accused had been denied the right to a hearing on the issue of whether there had been a case to answer.