Deceit from a distance

Today our Supreme Court held that a person who, outside New Zealand, causes a copy of a document to be created in this country (here, by sending a fax), does an act in New Zealand so as to attract the application of New Zealand law: Walsh v R [2006] NZSC 111 (19 December 2006).

The defendant appealed against convictions for forgery. She had been found guilty on the basis that she had, in Amsterdam, created false documents and then, perhaps after copying them to disguise the method of their creation, she had faxed them to the victims, intending thereby to dishonestly obtain money.

There was a difficulty here with the forgery convictions, because of the legal definition of a forged document as, essentially, a document that told the kind of lie about itself that brought it within the then-applicable statutory definition of false document (see para 9 of the judgment of Elias CJ, McGrath and Anderson JJ, with which Blanchard and Tipping JJ concurred). The difficulty here was that the forgeries were completed (outside the jurisdiction of New Zealand courts) before the copies were made, and the copies purported to be made by the accused, which was true: para 16. This was the position for all except 6 documents; these 6 purported to be letters addressed specifically to particular victims. While this point did not need to be decided, Blanchard J indicated, para 33, that he would have held that there were forgeries, as they each purported to be sent on the authority of their apparent writer, and that was a lie.

No such difficulty existed concerning the offence of uttering, and the Court amended the convictions accordingly. Uttering was defined at the relevant time by s 266 of the Crimes Act 1961, and the accused had committed the offences by sending the faxes to New Zealand: para 19, 20. There was no prejudice to the appellant in these amendments, because in order to have convicted her for forgery the jury must have accepted proof of all the ingredients of uttering. The same statutory maximum penalty applied, and the sentences were confirmed.

As Tipping J pointed out in para 40, the law in New Zealand was “substantially recast” from 1 October 2003 by the present sections 255 – 265 of the Crimes Act 1961, and the appellant would now appropriately be convicted, if she had committed the offences on or after that date, under s 258, of reproducing documents with intent to deceive.

The current offence of forgery attracts the same difficulties as those which were considered in this case, and the prosecution must select a charge appropriate to the circumstances of each case. Walsh is interesting for its reference to the jurisdictional point, and for the reasons why the convictions could be amended.

I wasn’t going to do a blog entry on Clift, R (on the application of) v Secretary of State for the Home Department [2006] UKHL 54 (13 December 2006), but, because there is an interesting parallelism of concepts, I will mention it here. The essential distinction, operative in both cases, is between status and action. In Walsh, the determination of whether a document is a forgery requires analysis of the distinction between what the document is, and what it seeks to do. To be a forgery, the document must make a false assertion about what it is, its status. This must not be confused with what it does, its action, which will be to make a false assertion about some state of affairs and thus mislead its intended recipient. In Clift, the point was that discrimination concerns what a person is, his status, and not what he has done, his action. Thus, in that case, (broadly speaking), a prisoner subject to a different parole regime to others who had received lesser sentences was held not to be the victim of discrimination in contravention of article 14 of the ECHR because the difference in parole eligibility was due, not to his status (as a person), but to his conduct in committing the crime for which he was sentenced.

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Extended secondary liability

To be guilty of serious crime you must intend to do the prohibited thing. Intention is the fundamental requirement for liability. Those two statements require some qualification. Recklessness is often sufficient. There is a difference between a person who actually does the act (the principal offender) and one of the two sorts of secondary participants. The first sort of secondary parties are those who aid, abet, counsel or procure the commission of the offence. These people are liable if, like the principal, they intend the prohibited acts (or are reckless as to whether or not they occur). But, the second sort of secondary party, the one we will be concerned with here, is the person who assists in the commission of one offence, knowing that the principal “could” commit another offence; the question is, what sort of state of mind is needed by the secondary party for liability for that other offence?

I have put the word “could” in quotation marks because there is some variation in the law about what attitude the secondary party must have towards the commission of that other offence. In New Zealand, s 66(2) of the Crimes Act 1961 puts it like this:

“Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.”

The critical phrase here is “known to be a probable consequence”. Although this sort of secondary party can be liable without actually intending that the other offence be committed, he must regard its commission as a “probable”, rather than a “possible” consequence. This puts the requirement as higher than recklessness, which is usually understood to mean taking a known risk.

There is, therefore, room for some dissatisfaction with this law, as the principal offender may, depending on the definition of the offence in question, only be liable for prohibited conduct that he intended, while the secondary participant is liable merely because he knew its occurrence was probable even if he didn’t want it to happen.

The law of homicide is usually the source of illustrations by commentators, but this is a bad example. To put it in simplified terms, murder can be committed by the principal offender even though he doesn’t intend to kill: recklessness is sufficient. There is not, therefore, the disparity between parties as there might be in relation to some other offences. Nevertheless, in Clayton v R [2006] HCA 58 (13 December 2006) the appellants, convicted as secondary parties to murder, asked the High Court of Australia to change the law. In Victoria, the state of mind required by this sort of secondary party is defined by common law as knowledge that the commission of the other offence (here, murder) was “possible”. This is a lower standard for liability than “probable”. Kirby J, dissenting, thought that the anomalies in the law would be avoided if the requirement was changed to “probable” (para 121), but the other members of the Court declined to change the common law, emphasising that there was no disparity between the forms of liability as the principal could be liable without intending to kill (para 16), and that the issue might really amount to a change in the law of homicide, a matter that should be left to the legislature (para 19).

At para 20 the majority refer to the jurisprudential basis for the different forms of liability:

“Further, no change could be undertaken to the law of extended common purpose without examining the whole of the law with respect to secondary liability for crime. The history of the distinction between joint enterprise liability and secondary liability as an aider, abettor, counsellor or procurer of an offence has recently been traced by Professor Simester [“The Mental Element in Complicity”, (2006) 122 Law Quarterly Review 578 at 596-598]. As that author demonstrates [at 598-599], liability as an aider and abettor is grounded in the secondary party’s contribution to another’s crime. By contrast, in joint enterprise cases, the wrong lies in the mutual embarkation on a crime, and the participants are liable for what they foresee as the possible results of that venture. In some cases, the accused may be guilty both as an aider and abettor, and as participant in a joint criminal enterprise. That factual intersection of the two different sets of principles does not deny their separate utility.”

This was the extent of the majority’s reference to the “separate utility” of the different forms of liability. Kirby J, at para 107, was not convinced by Simester’s rationale:

“The justification presented by Simester …[Simester and Sullivan, Criminal Law Theory and Doctrine, 2nd ed (2003) at 226; see also Simester, “The Mental Element in Complicity”, (2006) 122 Law Quarterly Review 578 at 592-601] is ultimately unpersuasive. The law may indeed dislike group anti-social activities, particularly where they result in death. But a rational and just legal system will dislike such activities equally, whether the conduct charged is prosecuted as an offence of acting in concert or of aiding and abetting others in carrying out the group activity. The law will not withdraw from one means only of establishing the offence (by reliance upon extended common purpose liability) the normal requirement of the modern criminal law that the prosecution prove a requisite intention on the part of the secondary offender.”

The New Zealand Court of Appeal has taken this logical approach of treating principal and secondary parties on the same footing: R v Tuhoro [1998] 3 NZLR 568; (1998) 15 CRNZ 568 (CA), 573:

“Having regard to the increasing number of persons prepared to combine for major criminal activity, … it is neither contrary to public policy nor unjust to hold them to account on the same basis as the actual perpetrator of any crimes within the scope of their criminal plan.” 

Reliability and hearsay

Yesterday, the Supreme Court of Canada made some observations on hearsay that are relevant to issues that will arise in New Zealand under our new Evidence Act 2006: R v Khelawon [2006] SCC 57 (14 December 2006).

The crucial provision in the Evidence Act 2006 that I will focus on here is s 8:

8 General exclusion

(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—

(a) have an unfairly prejudicial effect on the outcome of the proceeding; or

(b) needlessly prolong the proceeding.

(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.”

This “right of the defendant to offer an effective defence” echoes s 25(e) of the New Zealand Bill of Rights Act 1990: “The right to be present at the trial and to present a defence”, and the word “effective” invokes other aspects of s 25. The importance of the Bill of Rights is recognised in the Evidence Act 2006, s 6, where the purposes of the Act are stated to include “providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990”.

The most fundamental of the rights in s 25 of the Bill of Rights is the accused’s right to a fair hearing. This right has been recognised by the New Zealand Supreme Court as fundamental and essential: Condon v R (blogged here, 24 August 2006). In Khelawon the Court recognised, at para 47, the link between the right to make a full answer in defence and the right to a fair trial, saying that this introduced a “constitutional dimension.”

Hearsay evidence is presumptively inadmissible, but it may be admitted. An essential for admissibility is that the circumstances relating to the statement provide reasonable assurance that it is reliable: Evidence Act 2006, s 18(1).

The Supreme Court of Canada, in Khelawon, has analysed the reliability requirement for admission of hearsay statements. Essentially, it held that reliability may arise in two ways, but these are not mutually exclusive. The first is where reliability can be assessed by the trier of fact (usually, the jury). Here, there will be means by which the truth and accuracy of the statement can be tested, other than by cross-examination. In such cases, the judge does not need to inquire into the truth or accuracy of the statement, in determining its admissibility, as those are matters for the jury. We may question, with respect, whether it is appropriate to call this first a test for “reliability”, rather than a test for “safety” of admitting the evidence. The point is that it is safe to admit the evidence because in the circumstances of the case its reliability can properly be assessed by the jury.

The second sort of reliability in the Supreme Court of Canada’s analysis is where the trustworthiness of the statement is put forward as the reason for admitting it: here, the judge must inquire into the factors that tend to show whether the statement is true or not.

That, of course, doesn’t take the reliability issue very far, and it is unlikely to be a subject for analytical expansion as opposed to illustration by example. Of more interest here is the Court’s model of trial fairness. At para 48 the Court noted that trial fairness embraces more than the rights of the accused: it includes broader societal concerns, one of which is that the trial process should arrive at the truth. These broad interests were, said the Court, reflected in the twin principles behind the admission of hearsay evidence: the necessity principle (usually meaning that the maker of the statement is not available to give evidence), which reflects the truth-seeking interest, and the reliability principle, which reflects the need for integrity in the trial process. Other fair trial interests were reflected in the general discretion of the judge to exclude evidence where its prejudicial effect exceeded its probative value.

An implication of this analysis is that the last-mentioned discretion must be exercised in a way that recognises the absolute and essential nature of the accused’s right to a fair trial. One may question whether it is appropriate to exclude this right from the reliability principle, if indeed that is what the Canadian Court intended. It seems directly applicable to the safety aspect of reliability (how could it be safe to admit a statement if the accused’s inability to cross-examine its maker could give rise to a real risk of bias?). It may be that the New Zealand legislation has better placed the Bill of Rights concerns as one of the purposes of the Evidence Act 2006, second only to the provision of logical rules. In that context it has a bearing on all the rules, and the accused’s absolute and essential right to a fair trial remains an overarching requirement.

The balance of probabilities

Sometimes, cases that are not quite interesting enough to warrant a blog entry here, nevertheless contain dicta that are worth noting.

Such a case is Sharma v DPP and others (Trinidad and Tobago) [2006] UKPC 57 (30 November 2006). The relatively uninteresting bit of the case is its recognition that a prosecutorial decision to file criminal charges can be subject to judicial review. Here, however, there was insufficient evidence of official misconduct to warrant leave being given to institute review proceedings. While there are some examples of successful reviews of decisions not to prosecute, there is, according to the Privy Council, no English case where a decision to prosecute has been reviewed.

One can understand that absence of example, because the more appropriate recourse would be an application for a stay of proceedings on the grounds that to continue with the prosecution would be an abuse of process.

However, the interesting point I wish to draw attention to in this case concerns what is usually called the civil standard of proof: proof on the balance of probabilities. At para 14 of their joint judgment, Lords Bingham and Walker quoted with approval an English Court of Appeal case, R(N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, [2006] QB 468 at para 62:

“… the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.”

The standard of proof on the balance of probabilities is frequently used in criminal law in relation to issues such as proof of the defence of insanity, proof of the admissibility of evidence, and proof of an issue by the defence where a statute specifies that that is the standard. It is also applied, exceptionally, to some findings of fact at sentencing, for example proof that specified property was the proceeds of offending.

In some cases the courts have said that the civil standard has the advantage of flexibility: where the issue is a serious one, the standard increases, tending to become akin to proof beyond reasonable doubt for really serious issues. That, it may now be seen, is the wrong way to look at what is going on; the standard is not increased, rather, more cogent evidence is required to satisfy proof on the balance of probabilities, as the issue becomes more serious.

What, one may wonder, is the difference? Well, imagine a case where, at sentencing, the judge has to decide whether certain property represents the proceeds of criminal offending. If it does, a fine may be imposed to represent the value of those proceeds. An illustration is s 39(1)(b) of the Misuse of Drugs Amendment Act 1978[NZ]. In this context, the “fine” is a means of depriving the offender of the benefit of his offending, rather than a punishment, so the civil standard of proof here is appropriate. Nevertheless, the issue is a serious one, especially where the property is valuable and loss of its value may have an adverse effect on innocent people. In the absence of an explanation for how he acquired the property lawfully, the court will be entitled to infer that it was indeed obtained with the proceeds of offending. That may be the ordinary and natural inference, although evidence for it may be slight. It may be a matter of common sense, rather than actual proof. On the other hand, the offender may provide evidence that, for example, at the relevant time he had recently inherited money which he used to pay for the property in question. Unlikely though that explanation may be, he may nevertheless be able to provide cogent evidence in support of his assertion.

Here, if (as is the case) the standard does not increase but the requirement for cogency does, the offender may well be able to establish, on the balance of probabilities, that he did buy the property with inherited money. And, similarly, the prosecution, having a common sense inference but little evidence to back it up, would fail to establish its case on the balance of probabilities. If, however, the seriousness of the issue meant that the standard of proof increased, then, notwithstanding the cogency of his evidence that he inherited the money, the court might still find that the more common sense inference prevailed: while he could establish lawful purchase to a likelihood of, say 51%, he could not reach the higher standard that the circumstances required.

It will be important to get judges to see the difference in these approaches to the meaning of the balance of probabilities. The difference is rather subtle. If the cogency of the required proof increases to a likelihood of, say, 60% in favour, why isn’t that an increase in the standard of proof? “Balance” of probabilities suggests a more even contest. Nevertheless, the focus appears to be on the cogency of the evidence for each competing proposition, not on some imaginary shifting standard of proof.

[Update: The European Court of Human Rights rejects the English approach and holds that the strength of the evidence needed to meet the standard of proof does not change with the seriousness of the issue: Saadi v Italy [2008] ECtHR 179 at 140.]
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Attempting to conspire

A good example of a policy decision about the scope of criminal law comes from the Supreme Court of Canada in R v Dery [2006] SCC 53 (23 November 2006). At issue was whether there should be an offence of attempting to conspire to commit an offence. There was no legislative provision determining this question, so it concerned the scope of the common law.

The Court held unanimously that there is no offence of attempting to conspire: acts preceding conspiracy are not sufficiently proximate to a substantive offence to warrant criminal sanction.

This decision highlights the meaning of “agreement” in the context of conspiracy. A criminal conspiracy is an agreement to commit an offence. Imagine two people, A and B, who discuss committing an offence; A is very keen that they should do so, but B wants more time to decide and tells A that he will send him a text message about this later. B leaves A and later decides that, yes, he will agree to commit the proposed offence with B, so he sends him a text message to that effect. However, the message is never received by A.

Here, B has tried to agree with A to commit the offence. He has done what A expects him to do to agree. He believes they have an agreement. Should B be guilty of attempting to conspire with A? His position is different from that of A, who, not having received any communication from B, does not believe they have reached agreement, although he hopes they have. A would not be guilty of conspiracy with B.

While it might be acceptable, in circumstances like this, to hold B guilty while A escapes liability, the legal concept of agreement as a combination of minds prevents this. The law looks at potential harm as the justification for imposing criminal liability, and for conspiracy it is the harm that arises from the combination of minds, directed at the commission of an offence, that warrants criminal sanction. While, in the hypothetical discussed here, B’s state of mind is that of a conspirator, the danger he poses is lessened because A is unaware of B’s agreement. It is often said that a person is not to be punished for his thoughts alone, and in the absence of a combination of minds B’s individual liability must depend on whether he does any other act which is sufficiently proximate to the commission of a substantive offence to make him liable for the attempt to commit that offence.

We are, of course, focusing on liability for an attempt to conspire. It should not be thought that A will escape all liability, for consideration will have to be given to incitement. It may be that A is liable for inciting B to commit the crime which was the objective he discussed with B. Further questions arise here, concerning what “inciting” involves. If it is no more than trying to arouse another person’s interest in committing an offence, then A would be liable whatever B decided; but, if inciting requires the actual arousal of that interest in the mind of the other person, then A is only liable if B (as he did in the above hypothetical) becomes interested in the commission of the offence. This latter approach would be consistent with the harm-based justification for imposition of criminal liability. However, the common law interpretation is different: inciting does not require the creation of an interest in the commission of the offence, mere encouragement being sufficient. Adams on Criminal Law puts it this way, at CA66.17(2):

““Inciting” means to urge or spur on by encouragement, persuasion, or coercion. See Burnard v Police [1996] 1 NZLR 566; R v Tamatea (2003) 20 CRNZ 363, and the following decisions at common law on the meaning of the term in the inchoate offence of incitement: Invicta Plastics Ltd v Clare [1976] RTR 251; R v Hendrickson [1977] Crim LR 356; R v Fitzmaurice [1983] QB 1083; R v James (1985) 82 Cr App R 226; Race Relations Board v Applin [1973] QB 815.”

A leading New Zealand case on incitement, consistent with this statement of the law, is R v Schriek [1997] 2 NZLR 139; (1996) 14 CRNZ 449; 3 HRNZ 583 (CA). The position may therefore be summarised as follows: criminal liability requires that the accused caused harm, and as far as conspiracy is concerned the minimum harm needed for liability is, consistent with the decision of the Supreme Court of Canada in R v Dery, the existence of an agreement to commit an offence. Such an agreement does not exist without communication between the two parties to it (or, where there are more than two parties, between at least two of them). But, where incitement is concerned, the necessary degree of harm has been held to arise from mere encouragement, whether or not an interest in offending is aroused. This inconsistency in policy will require attention.