Trial by unjust law

Today’s decision by our Supreme Court, Hansen v R [2007] NZSC 7 (20 February 2007), holds that some trials are conducted under law that is an unjustifiable limitation on the presumption of innocence.

The implications of this are considerable. Do such trials contravene the accused’s right to a fair trial, which is an absolute right, so that convictions obtained at them cannot be upheld?

Should Parliament reform the impugned law, s 6(6) of the Misuse of Drugs Act 1975, so that it does not place a legal burden of proof on the accused?

The foundation of Hansen is a finding by all 5 members of the Court that the expression “until the contrary is proved” can not mean “until a reasonable doubt is raised”. It is pointless, now, to dispute that, although in England and Wales that meaning is accepted.

The absence of a meaning that did not involve more than a justifiable limitation on the right to be presumed innocent meant that the Court had to apply the unjustifiable limitation (namely, that the accused had to prove, on the balance of probabilities, lack of intent to supply a drug).

Parliament had been assured by the Attorney-General in 2005, when it revised the offending provision, that there was no unjustified limitation of the accused’s rights. The Supreme Court has now decided that that assurance was wrong (although Blanchard J dissented on this point).

Justice McGrath put the position in this way:

“[254] Articulating that reasoning serves the important function of bringing to theattention of the executive branch of government that the court is of the view thatthere is a measure on the statute book which infringes protected rights and freedoms,which the court has decided is not a justified limitation. It is then for the other branches of government to consider how to respond to the court’s finding. Whilethey are under no obligation to change the law and remedy the inconsistency, it is areasonable constitutional expectation that there will be a reappraisal of the objectivesof the particular measure, and of the means by which they were implemented in thelegislation, in light of the finding of inconsistency with these fundamental rights andfreedoms concerning which there is general consensus in New Zealand society andthere are international obligations to affirm.”

None of the judges in Hansen considered whether trials where the offending provision applies will necessarily be unfair. One would expect that, in most cases, the provision will have little scope for real effect on the accused’s risk of conviction. It is only in borderline cases, where the accused has possession of a quantity of drug close to that at which he is presumed, by this provision, to have it for supply, that there is a risk that he will be found guilty although the jury was not satisfied beyond reasonable doubt that he had that purpose. He could then, perhaps, argue that the proceedings were biased against him, and that this bias, albeit required by law, was unjustifiable.

It is now unlikely that the prosecution will rely on the statutory presumption, in its present form,
where the amount of drug is close to the presumptive level. It is clear that the matter needs to be addressed by Parliament.

How satisfying was that!

The High Court of Australia has, this week, held that the requirement that a judge be “satisfied” of something (here, the appropriateness of revoking a non-parole period, which, in this case, would mean no possibility of release on a life sentence), does not entail a standard of decision analogous to a standard of proof: Leach v R [2007] HCA 3 (6 February 2007).

I have previously noted here some discussion over whether a standard of decision is applicable to requirements like the court having to be “satisfied”. I use the expression “standard of decision” to acknowledge that the decision is a matter of judgment, based on facts, and that those facts will have been determined to a standard appropriate to their context. Indeed, in Leach, the High Court of Australia distinguished between the factual matters on which the decision had to be based, these having to be proved beyond reasonable doubt, and the judgment on those facts whereby the court, having to be “satisfied” was exercising a judgment not amenable to a standard. See, in particular, para 47 of the joint judgment:

“…. The concept of a standard of proof, like the related concept of onus of proof, is apposite to the resolution of disputed questions of fact in issue in the litigation. Both onus and standard of proof concern the adducing of evidence at trial and the determination of which of the facts in issue are established by that evidence[citing Cross on Evidence, 7th Aust ed (2004) at [7005]; Stone, “Burden of Proof and the Judicial Process: A Commentary on Joseph Constantine Steamship Ltd v Imperial Smelting Corporation Ltd“, (1944) 60 Law Quarterly Review 262]. Standard of proof is not a concept that is apposite to the resolution of a contested question of judgment of the kind required by [the relevant section], any more than it is apposite to the resolution of a disputed question of law.”

In contrast, the House of Lords in O v Crown Court at Harrow (blogged 31 July 2006) – not mentioned in Leach – held that in the context considered there, whether release on bail was appropriate, “satisfied” meant more than an exercise of judgment, and connoted a burden or presumption.

There is plenty of scope for discussion of this point, as requirements that a court be “satisfied” of something are common. In the Sentencing Act 2002[NZ], for example, s 24(2)(b) and s 86(2) apply this requirement to determination of facts at sentencing, and to deciding whether an extended non-parole period is appropriate, respectively.

Obviously, decisions in some contexts will be more important than in others, so the requirement that a judge be “satisfied” of a critical matter needs to accommodate that. This does not, however, mean that the standard of satisfaction, if there is a standard, will vary; instead, the weight of the considerations needed to meet the standard could be regarded as the variables. An analogous point was made in relation to “the balance of probabilities” in Sharma v DPP and others (Trinidad and Tobago) (blogged 11 December 2006).

Refusals to attach a standard to the requirement that the judge be “satisfied” are, no doubt, put on the policy basis that finality in litigation is desirable. Unless a lower court has taken into account irrelevant matters, or failed to consider relevant matters, or has been plainly in error, its decision on a discretionary matter should be final. On the other hand, where a decision concerns matters that are the subject of human rights, international trends are towards interpreting “satisfied” as carrying a standard of beyond reasonable doubt.

See also my discussion of proof and risk in relation to another House of Lords decision not cited
in Leachre McClean, 19 July 2005.

Appeal verdicts

How should an appellate court decide whether a verdict is safe? It is difficult to find agreement among senior appellate judges on the safety of verdicts, even where they express the relevant legal approach in similar terms. Only last week the Supreme Court of Canada split 5 – 4 on whether a verdict in a lower court was reasonable: R v Beaudry [2007] SCC 5 (31 January 2007).

I have previously mentioned here several cases on this difficulty: Dial v The State (Trinidad and Tobago) 17 February 2005, R v Stevens 25 October 2005, Taylor v R (Jamaica) 14 March 2006. And next month, the Privy Council will hear an appeal, the last from New Zealand, by David Bain, which concerns whether convictions for murders should be upheld in the light of fresh evidence.

In Beaudry the majority emphasised that it is the verdict that is reviewed, not the process that was followed to reach it. An error of reasoning in the lower court (here the trial was by judge alone, so reasons for the verdict were available for inspection on appeal) did not, of itself, mean that the verdict was unsafe; instead, the appellate court had to thoroughly reexamine the evidence, bringing to bear the weight of its judicial experience in deciding whether the verdict was a reasonable one (para 58).

I will, I hope, be forgiven for thinking that that is a very vague formulation of the proper appellate task. Some help might be obtained from a combination of dicta from the cases mentioned above, so that the question for the appellate court is whether a jury might, on a proper approach, have a reasonable doubt about the defendant’s guilt (Dial), bearing in mind that the jury may have different perceptions of the facts from the perceptions entertained by appellate judges (Stevens), and that the jury must rule out all inferences consistent with innocence before it can convict (Taylor).

Reliability and relevance

Concealed within the requirement that evidence, to be admissible, must be relevant, is a threshold of reliability.

It is a fundamental principle that relevant evidence is – subject to exclusionary rules –  admissible, and that evidence that is not relevant is not admissible: see, for example, s 7 of the Evidence Act 2006[NZ]. “Relevant” means having a tendency to prove or disprove anything that is of consequence to the determination of the proceeding. Is any “tendency”, no matter how slight, sufficient to establish relevance? Logically, the tendency of evidence to prove something must include a requirement that it has some reliability. The need for reliability can be seen from the use of that term in the Act.

The reliability requirement is found as an express requirement in the Evidence Act 2006[NZ], as a qualification on the admissibility of particular sorts of evidence. For example, hearsay evidence requires, from the circumstances in which it was obtained, “reasonable assurance that the statement is reliable” (s 18(1)(a)), unreliable statements by defendants in criminal proceedings must be excluded (s 28(2)), previous consistent statements must have been made in circumstances that provide “reasonable assurance” that they are reliable (s 35(3)(a)), and there are reliability rules concerning identification evidence (visual identification: s 45(1) and (2), voice identification: s 46). These references to reliability are consistent with the view that reliability is a fundamental requirement for admissibility.

A concept akin to reliability is probative value, but they are not the same. Evidence cannot have probative value unless it has reliability, and increasing reliability may lend the evidence more probative value, but not necessarily. Although highly reliable, evidence might have relatively slight probative value. Reliability reflects accuracy, whereas probative value is a reflection of the importance of the evidence to the logic of the case.

In the terminology of the Act, probative value is something that a judge must weigh against unfairly prejudicial effect, and this applies generally (s 8). The expert opinion rule in s 25 is governed by this probative value determination, because of its general application, but neither probative value nor reliability are mentioned in s 25. This raises the question: does expert opinion evidence have to be reliable before it can be admissible?

Expert opinion is admissible if (s 25(1)) “the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.” Here, “substantial help” may well be contingent on reliability; this seems to be the only route by which the common law requirements, of general acceptance of the opinion among experts in the field, can come into play in s 25.

Yesterday, the Supreme Court of Canada split 6-3 on what was essentially a difference about whether a threshold of reliability is a fundamental requirement for the admissibility of evidence: R v Trochym [2007] SCC 6 (1 February 2007). Here, the evidence was that of a witness who claimed to have seen a person she said was the accused, leaving the victim’s apartment, some time after the victim was murdered. She gave two versions of exactly when she had seen this: her first version was that the accused had left the day after the murder, but later, under hypnosis, she changed this to the same day as the murder. Was the version she had given under hypnosis sufficiently reliable to be admitted in evidence, so that its weight (probative value) could be assessed by the jury? Or, should the first question be whether her hypnotised version had sufficient probative value, compared to its unfairly prejudicial effect, for the matter of its weight to be left with the jury?

The majority (McLachlin CJ, Binnie, LeBel, Deschamps, and Fish JJ, with Charron J concurring but differing slightly, particularly as to the position on the part of the witness’s evidence that was not the subject of hypnotic inquiry) held that reliability is the fundamental requirement for admissibility as far as “novel scientific evidence” is concerned. Whereas in many areas of scientific inquiry the reliability of expert evidence is established, science develops:

“31. Not all scientific evidence, or evidence that results from the use of a scientific technique, must be screened before being introduced into evidence. In some cases, the science in question is so well established that judges can rely on the fact that the admissibility of evidence based on it has been clearly recognized by the courts in the past. Other cases may not be so clear. Like the legal community, the scientific community continues to challenge and improve upon its existing base of knowledge. As a result, the admissibility of scientific evidence is not frozen in time.

“32. While some forms of scientific evidence become more reliable over time, others may become less so as further studies reveal concerns. Thus, a technique that was once admissible may subsequently be found to be inadmissible. An example of the first situation, where, upon further refinement and study, a scientific technique becomes sufficiently reliable to be used in criminal trials, is DNA matching evidence, which this Court recognized in R. v. Terceira, 1999 CanLII 645 (S.C.C.), [1999] 3 S.C.R. 866. An example of the second situation, where a technique that has been employed for some time comes to be questioned, is so-called “dock”, or in-court, identification evidence. In R. v. Hibbert, 2002 SCC 39 (CanLII), [2002] 2 S.C.R. 445, 2002 SCC 39, at para. 50, Arbour J., writing for the majority, stated that despite its long-standing use, dock identification is almost totally unreliable. Therefore, even if it has received judicial recognition in the past, a technique or science whose underlying assumptions are challenged should not be admitted in evidence without first confirming the validity of those assumptions.

“33. … Even though the use of expert testimony was not in itself at issue in the present case — this appeal concerns the application of a scientific technique to the testimony of a lay witness — the threshold reliability of the technique, and its impact on the testimony, remains crucial to the fairness of the trial.”

The emphasis is on the threshold of reliability and the fairness of the trial. The majority concluded, para 55, and 65-66, that “this technique and its impact on human memory are not understood well enough for post-hypnosis testimony to be sufficiently reliable to be used in a court of law.” That applies to the witness’s evidence on topics that have been the subject of hypnosis. As far as evidence from the witness about matters that have not been mentioned under hypnosis, (as held by the majority except Charron J) the judge determines admissibility by assessing whether the detrimental effects of hypnosis are outweighed by the probative value of the evidence (para 64). Charron J would not require the balancing exercise to automatically apply here (para 87), and she would also allow evidence of topics covered under hypnosis to be given if supported by a pre-hypnosis consistent statement (para 88).

The minority (Bastarache, Abella and Rothstein JJ) would have admitted the post-hypnotic evidence, preferring not to change the rule. They declined to classify this area as novel science, and would have confined the reliability test, in this context, to novel science. They considered that the majority had placed too high a standard for consensus in the expert community. In particular, they held that the majority’s approach, which took judicial notice of cases in the USA in which experts had expressed doubts on the reliability of testimony by witnesses who had been hypnotised, amounted to denying a party in the present case the opportunity to cross-examine those experts.

The Court in Trochym was unanimous on another aspect of the appeal: similar fact evidence had been wrongly admitted. A single incident (knocking on the victim’s door after a fight with her) did not disclose a pattern of behaviour, and was not unique conduct that identified the offender (paras 74-78, 83; 185, 187).

This case illustrates that there are times when the judge cannot simply say that the issue of admissibility depends on whether the probative value of the evidence outweighs its unfairly prejudicial effect. The first requirement is relevance, and relevance depends on whether the evidence has a tendency to prove or disprove a matter in issue, and that in turn depends on a threshold of reliability. Doubts about the probative value of evidence may extend beyond the balancing exercise, to the more fundamental question of relevance.