Checking the foundations

On this, the second anniversary of the start of this blogsite, when I am about to comment on a case where the meaning of “beyond reasonable doubt” was examined, and remembering that yesterday our Supreme Court ruled on the accused’s right to a fair trial, one might be excused for thinking that criminal law had only recently been invented. Surely, these fundamentals must have been settled centuries ago?

Well, criminal law is a living thing, with its basic assumptions and rules constantly under review. It involves the handling of complex concepts, and other disciplines, especially psychology, can make a significant contribution to our perceptions of what is currently appropriate.

A Full Bench of the New Zealand Court of Appeal, in R v Wanhalla 24/8/06, CA321/05, considered whether there should be adjustments to the standard way in which judges should direct juries on what the criminal standard of proof, proof “beyond a reasonable doubt” means.

In a joint judgment, William Young P, Chambers and Robertson JJ held that, although this was not intended to be a mandatory formula, the following direction should be of assistance in many cases (para 49):

“The starting point is the presumption of innocence. You must treat the accused as innocent until the Crown has proved his or her guilt. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his or her innocence.

“The Crown must prove that the accused is guilty beyond reasonable doubt. Proof beyond reasonable doubt is a very high standard of proof which the Crown will have met only if, at the end of the case, you are sure that the accused is guilty.

“It is not enough for the Crown to persuade you that the accused is probably guilty or even that he or she is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events and the Crown does not have to do so.

“What then is reasonable doubt? A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.

“In summary, if, after careful and impartial consideration of the evidence, you are sure that the accused is guilty you must find him or her guilty. On the other hand, if you are not sure that the accused is guilty, you must find him or her not guilty.” [emphasis added]

It was also held that best practice is to avoid expressing reasonable doubt in terms of percentages (a point on which Glazebrook J had some doubt: para 107, 109), and not to use the “domestic analogy” of telling jurors that they should approach the matter as if they were making an important decision in their own lives (the Judges were more clearly unanimous on this point).

In her judgment, Glazebrook J embarked on a scholarly analysis of various jury studies that psychologists and legal experts have carried out. Her main concern was that jurors may be too inclined to be tolerant of prosecution failures of proof, ie too reluctant to recognise a doubt as reasonable. Some studies have found that jurors tend to think in terms of estimates of probabilities. Proof of the prosecution case to the standard of a likelihood of 75% often seems to be thought sufficient (some jurors think 50% is sufficient!), and Glazebrook J pointed out (para 107, 109) that it is arguable that 100% proof should be required, as the reasonable doubt standard is closer to that than it is to 75%.

Hammond J (who has the advantage over Glazebrook J of having been an experienced trial judge) felt that the arguments for and against revision of the standard approach to direction on reasonable doubt were evenly balanced. In fairness to the Crown, absolute certainty is not required (para 165), and therefore Hammond J did not favour the mathematisation of directions. He noted that experience has shown the need to emphasise that the standard is higher than even probabilities (para 167). He agreed that the direction proposed in the joint judgment (para 49, above) would meet the needs of the vast majority of cases, yet also observed that the actual direction in a particular case should be left to the discretion of the trial judge (para 171, citing Privy Council authority for that).

My concern is with one aspect of the direction in the joint judgment (above), a concern not mentioned by any of the Judges. This focuses on the word I have italicised. A direction that the jury “must” find the accused guilty if sure that the accused is guilty, is contrary to an important constitutional safeguard. This safeguard, which in practice is one of those things that dare not speak its name, and so is never mentioned although ever-present, is the power of the jury to perversely acquit the accused. Occasions for them to do this may arise if they feel that something deeply objectionable occurred in the police investigation of the case, or in the presentation of the prosecution evidence. Authority for this is discussed in R v Wang, blogged here on 14 February 2005.

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The absolute right to a fair trial

The Supreme Court of New Zealand has accepted that the accused’s right to a fair trial is absolute, that breach of this right is a substantial miscarriage of justice so that the proviso cannot be applied, and a conviction obtained in an unfair trial must be quashed regardless of the strength of the evidence against the accused: Condon v R [2006] NZSC 62 (23 August 2006) at paras 76 – 78. The Court also reasoned that, if the error had not occurred, it could not be said that the outcome of the trial would have been the same, therefore there was unfairness in the trial and that accordingly a substantial miscarriage of justice had occurred (para 89).

This places unfairness in its proper position in relation to substantial miscarriage of justice, a position from which there had seemed to be some slippage in the Court’s earlier decision in Sungsuwan v R (blogged here 26 August 2005).

Also important in Condon is the Court’s indication of the burden of proof on fairness issues (para 81). The case concerned breach of the accused’s right to legal representation, a right described as one of the constituent elements of, or subsidiary rights to, the accused’s right to a fair trial (para 76). It held that if the court found that the subsidiary right was breached, the onus shifted to the prosecution to satisfy the Court that the trial was not unfair.

Although the Court did not specify standards of proof (more accurately, standards of persuasion) here, it did indicate that it would not easily accept that the trial had been fair: para 79.

Further indication of the importance of the right to a fair trial is the Court’s recognition that, even if the subsidiary right was not found to have been breached, the overall fairness of the trial would be examined, although in such a case the burden would be on the appellant (para 80):

“… if the accused makes an informed choice to go to trial without a lawyer, or is rightly refused legal aid, or by conduct creates a situation in which, on a proper balancing of the various interests, further delay in the holding of the trial is not to be tolerated, there will have been no breach of the s 24 rights. But even in such circumstances an appeal Court must still examine the overall fairness of the trial, as was done in the New Zealand cases cited earlier, because the right to a fair trial cannot be compromised – an accused is not validly convicted if the trial is for any reason unfair. If there has been no breach of the appellant’s right to representation, because the trial Court was properly “satisfied” in terms of s 30(2) of the Sentencing Act, the conviction will not be set aside unless the appellant can persuade the Court that the trial was unfair because the defence could not, in the particular case, have been adequately conducted without the assistance of counsel….”

We have seen in these blogs that pragmatism (which would lead to the dismissal of appeals against convictions where there was no doubt about the appellant’s guilt) and formalism (which places primacy on the need for compliance with procedural fairness at trial) have been emphasised differently by judges in all the jurisdictions considered here. Although Condon concludes by linking outcome in the absence of error (pragmatism) with substantial miscarriage of justice (para 89), much of the jurisprudence the Court accepts is formalist. It is clear that the Court endorsed the dominance of the formalist approach and that even if the evidence against the appellant had been overwhelming, the absence of a fair trial would have amounted to a substantial miscarriage of justice.

On a long view of the developments in this area of the law, Condon can be seen as settling a fundamental difference between judges on the status of a criminal trial. The view that has been rejected saw criminal trials as no different from civil trials, except for the standard of proof of the ultimate issue, and also except for a special rule concerning proof to the same high standard of the voluntariness of confessions if they were to become admissible evidence. From this perspective, trials function as a search for the truth, a search which must proceed to its conclusion despite circumstances that create unfairness to either side. While judges will try to be fair to each side, other interests may require something less than absolute fairness to the defence. Examples of such other interests might be the privacy interests of a victim, the public interest in bringing those accused of crime to trial (this sometimes being phrased, less circumspectly, as the public interest in bringing offenders to justice), and, more vaguely, the interests of justice, which was seen as an overarching consideration. This view of criminal trials was taken by the authors of our two leading textbooks on the Bill of Rights.

The alternative view, accepted by the Supreme Court in Condon, is that criminal trials are sui generis, with special rules needed to accommodate the considerations peculiar to criminal law. Criminal trials are not necessarily concerned merely with the question of guilt. They can have to deal with the problem of how to react to misconduct by officials in the gathering of evidence. This required development of the concept of abuse of process, and the recognition of two senses in which the term “fairness” is used. Public policy fairness has become the grounds on which wrongfully obtained evidence may, after a balancing of relevant interests, be ruled inadmissible. This is distinct from the second sort of fairness: trial fairness. No balancing of interests occurs to diminish the accused’s right to a fair trial, which is absolute.

Establishing the broad characteristics of the accused’s right to a fair trial (ie that it is absolute and essential), is only the start of securing this right. Giving content to the meaning of “fair trial” comes next. I have, in recent publications, developed the absolutist position by suggesting that a fair trial is one where the law is correctly applied to facts that are determined without bias. There is, inevitably, some circularity in this, insofar as the law is assumed to be fair. That is why, in New Zealand, the Evidence Bill should be attracting our attention. Some of its current provisions will operate unfairly to an accused. A central concept in trial fairness is the absence of bias, whether bias in the application of the law, or bias in the determination of the facts. Judicial directions to the jury are the final opportunity in a trial to prevent unfairness to the accused, and a rigorous approach to them is essential. Proposals to water them down must be resisted.

Public debates on admissibility

Should the courts encourage public discussion of judicial decisions about the admissibility of evidence? This is one of the important questions raised by the New Zealand Court of Appeal yesterday in TVNZ v Rogers 7/8/06, CA12/06.

Because the decision in Rogers is likely to be appealed to the Supreme Court, I will not discuss the facts of the case in any but the most general of terms. In a criminal trial, evidence of a confession by R was ruled inadmissible and he was acquitted. Subsequently, a television programme was proposed, in which the video of the confession, which the police had given to TVNZ, would be played. The present proceedings concern whether an injunction should issue to prevent that publication.

The decision to rule the confession inadmissible at the criminal trial was, noted the Court of Appeal, not uncontroversial in law. The authorities did not all point in the same direction, and the method of weighing the competing values may have been flawed (see the joint judgment of O’Regan and Panckhurst JJ at [27], and the separate concurring judgment of William Young P at [127]). It is public discussion of this admissibility decision that the Court of Appeal seems to be encouraging.

The joint judgment makes this observation:

“[88] Although there is some substance in the Full Court’s [ie the court below] view that the content of the videotape may not add to informed public debate, it must be borne in mind that an evaluation of the reliability of disputed evidence, and of its importance to the prosecution case, is an aspect of the balancing exercise ordinarily required following a finding that evidence was obtained in breach of a suspect’s rights. The Court should be prepared to expose its reasoning process to scrutiny, to avoid perceptions of an attempt to stifle debate about its decision or about the conduct of the police officers whose conduct was under scrutiny in that decision.”

And William Young P added:

“[128] I agree that the underlying issues can be debated without the videotape being shown on national television. But experience shows that arguments are usually more easily understood where they are contextualised. An esoteric argument about the way the New Zealand Bill of Rights Act is applied by the Courts becomes far more accessible to the public if the implications can be assessed by reference to the concrete facts of a particular case. In that context, to prohibit the proposed broadcast of the videotaped confession and reconstruction would necessarily have the tendency to limit legitimate public discussion on questions of genuine public interest.”

Well, let us examine that thought. If public discussion is to have a point, it must be fully informed. To be fully informed, it needs to be acquainted with the different considerations that may be relevant to admissibility decisions. This requires some regard for the functions of the criminal trial, and the appropriate balance between truth seeking, on the one hand, and the extent to which police misconduct in the obtaining of evidence should be tolerated, on the other. Two extremes are apparent: admit all probative evidence, or, exclude all evidence tainted by the misconduct of officials.

Members of the public can discuss and decide where on the continuum between these extremes they individually lie. It is plain that unanimity could not be expected, and people may find themselves taking different positions depending on the nature of a particular case.

This is where the utility of publishing the details of R v Rogers (ie the criminal case) may be questioned. It is the sort of case that is likely to attract an extreme position on admissibility. It illustrates a very small part of the continuum of cases, and so is likely to illuminate only a small part of the proposed admissibility debate. This gives rise to synecdoche: the taking of a part of something to represent its whole. The entire question of how admissibility of wrongfully obtained evidence should be decided is not fairly posed by an extreme example.

The Court of Appeal is alert to the public’s tendency to employ synecdoche. In a decision delivered the same day as Rogers, by a differently constituted bench (“bench”: metonymy and synecdoche!), the Court of Appeal in Marfart and Prieur v TVNZ 7/8/06, CA92/05 said:

“[62] One of the complaints made – with considerable force – against contemporary media is that what it routinely does in forming mental pictures is to use synecdoche: the portrayal of a part for the whole. (See Miller The Anatomy of Disgust (1998)). It is a common and lamentable part of entering the public gaze that the media tends to promote one salient feature of an incident (often glorified as a 30-second sound
byte), with unfortunate and unfair results. Not the least is a refusal (or at least a misportrayal) which fails to respect the fact that people may well be different in private than in public.”

Pragmatism will dictate different approaches to admissibility decisions, depending on who is looking at the decision. Lawyers will look for an approach that is predictable in outcome, so that the likely prospects of a successful challenge can be assessed. Judges will look for an approach that balances the multitude of relevant considerations – interests of the accused, the prosecution, victims, the public, and the overarching need for a fair trial. Members of the public, as interested observers of the administration of justice, will look for an approach to admissibility decisions that reflects their own values.

The central idea is that of “instrumental truth” in the sense used by William James in his second lecture, entitled “What Pragmatism Means”, in Pragmatism (1907):

“Truth in our ideas and beliefs means … that ideas, (which themselves are but parts of our experience) become true just in so far as they help us to get in to satisfactory relation with other parts of our experience …”. (James’s emphasis)

I would apply that to our present context in this way: the right or “true” answer to an admissibility problem is that which most satisfactorily relates to the concerns we perceive as relevant. The point is that different people may see different things as being relevant to the determination of the admissibility of wrongfully obtained evidence. Have the courts adequately taken into account public interests, so that public unease about a particular case is misplaced? Shouldn’t the real inquiry be why the police obtained the evidence wrongfully? What inadequacies in police training or attitudes permitted such misconduct to occur?