Unappealing confusion

The High Court of Australia’s attempt in Weiss v R (2005) 224 CLR 300 (blogged here 16 January 2006) to clarify the law concerning the application of the proviso has not prevented differences of opinion as to the results of appeals. The same Court, indeed, a Bench of judges who had all participated in the Court’s judgment in Weiss, has divided 3 – 2 on whether to apply the proviso in Libke v R [2007] HCA 30 (20 June 2007). The majority decision in Libke was to dismiss the appeal.

Weiss held that the appellate court is to apply the words of the legislation that enacts the proviso, and is not to introduce considerations of what a jury would do in the absence of the error that had occurred at trial. I suggested in January 2006 that this means that “ … the appellate court acts as a substitute jury, albeit one that has not seen or heard the witnesses.”

In Libke the point decided in Weiss was summarised by Hayne J (with whom Gleeson CJ and Heydon J concurred) at para 115 as:

“…the unanimous decision of this Court in Weiss v The Queen … warned against attempting to describe the operation of the statutory language in other words, lest such expressions mask the nature of the appellate court’s task in considering the application of the proviso. The Court expressly discountenanced [para 35] any attempt to predict what a jury (whether the jury at trial, or some hypothetical future jury) would or might do. Rather, the Court said [para 35] that “in applying the proviso, the task is to decide whether a ‘substantial miscarriage of justice has actually occurred'”. Unless, and until, a majority of this Court qualifies what is said in Weiss, the intermediate courts of Australia must continue to apply that decision.”

Application of an authority at the same time as mentioning the possibility of it being overturned is hardly a sign of great confidence in its correctness. Indeed, it is virtually impossible for an appellate court to assess whether a substantial miscarriage of justice may have occurred without reference to what a jury might have decided in the absence of the error at trial. Hayne J does this himself (para 113):

“…the question for an appellate court is whether it was open [Hayne J’s emphasis] to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must [Hayne J’s emphasis], as distinct from might [Hayne J’s emphasis], have entertained a doubt about the appellant’s guilt [footnote citing M v The Queen (1994) 181 CLR 487 at 492-493]. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant’s guilt.”

Aside from references to a jury (or, “the” jury), this looks like a burden on the appellant (and, of course, on appeal there is a burden on the appellant) to show not just that there was a miscarriage of justice but also to show that it was substantial so as to prevent the application of the proviso. The minority of the Court, Kirby and Callinan JJ, held that, once a miscarriage of justice had been demonstrated, the burden was on the respondent to show that it was not substantial (para 44, citing Mraz v The Queen (1955) 93 CLR 493 per Fullagar J at 514, a passage that received a bit of a knock in para 27 of Weiss).

The minority emphasised its rehabilitation of Fullagar J’s dictum in Mraz by citing Stokes v The Queen (1960) 105 CLR 279 at 284-285 per Dixon CJ, Fullagar and Kitto JJ, saying (para 45):

“As it is put in Stokes v The Queen …, an appellate court should only apply the proviso if the irregularity “could not reasonably be supposed to have influenced the result”. If this cannot be ruled out, it may be impossible for a court to be satisfied that a substantial miscarriage of justice has not occurred. …”

Even while differing in its interpretation, the minority in Libke did not seek to modify Weiss. On occasions such as this, where the time is not quite right to modify an earlier decision, a minority can at least emphasise the salvageable bits (para 43 – 44):

“In Weiss, after reviewing the history of the statutory demise of the Exchequer rule in criminal cases and pointing out that in consequence, an appellate court was not obliged in all cases in which irregularities had occurred to uphold an appeal, the Court said this [para 45]:

“Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant’s guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.”

“44. The foregoing statement must be read with the several others [footnote citing: Driscoll v The Queen (1977) 137 CLR 517 at 524-525; Festa v The Queen (2001) 208 CLR 593 at 627 [110]; and TKWJ v The Queen (2002) 212 CLR 124 at 144-145 [68]] made in this Court which emphasise that, once it is shown, as it has been to all members of this Court, that irregularities disadvantageous to the appellant occurred at his trial, it is for the prosecution to satisfy the appellate court that such irregularities have caused no substantial miscarriage of justice. This is clear from the oft cited passage of Fullagar J in Mraz v The Queen …”


There are clear points of contrast here with the approach to the proviso in New Zealand: see, for example Bain v R (New Zealand) [2007] UKPC 33 (blogged here, 11 May 2007) at paras 34 – 38, referring to well settled principles which were not challenged on that appeal. The error in Bain was that the appellate court had substituted its judgment about the appropriate verdict for that of the jury. Perhaps most of the judges on the High Court of Australia would not have seen that as objectionable.

Probative value and prejudicial effect

The discretion to exclude evidence when its probative value is outweighed by its illegitimately prejudicial effect has given rise to some difficulties in predicting the admissibility of evidence. The discretion has been enacted in s 8 of the Evidence Act 2006 [NZ]. Here are my observations on how this potentially difficult section should be interpreted.

Domestic harmony and judicial disharmony

Where a witness is not competent to be a prosecution witness without the consent of the accused, can hearsay evidence from that person nevertheless be admissible if it is reliable? Both these common law rules received consideration in R v Couture [2007] SCC 28 (15 June 2007), and the Supreme Court of Canada split 5 – 4. The minority accused the majority of departing from the approach established in R. v. Hawkins, 1996 CanLII 154 (S.C.C.), [1996] 3 S.C.R. 1043, which was that the competency rule may be used to exclude hearsay evidence that would otherwise be admissible if it was unfair to admit the evidence. Interpretations of the judgments that were delivered in Hawkins differed in Couture. Essentially, the difference is between whether or not the exclusion of the evidence of an incompetent witness is a matter for residual discretion, or whether it is a consideration independent of the criteria for hearsay admission. The majority in Couture, in a judgment delivered by Charron J, approached the competence issue independently of the hearsay issue (para 63), whereas the minority (in a judgment delivered by Rothstein J) regarded it as a residual matter (para 105).

This interesting interplay of two common law rules arose at the accused’s trial for murder. The prosecution wished to adduce evidence from his spouse in the form of statements she had made, during a period of matrimonial discord, to the police, in which she said her husband had admitted the killings to her. Being the accused’s spouse, she was not competent as a prosecution witness under Canadian common law, without the accused’s consent. The prosecution argued that the statements were sufficiently reliable to be admitted pursuant to the “principled exception” to the hearsay rule (also known, in its New Zealand version, as the residual exception, although here the term “residual” is a bit confusing, so I will use the Canadian expression), and that there was no reason to exclude them as marital communications under the residual discretion to exclude evidence if its probative value would be outweighed by its illegitimately prejudicial effect or if it would be unfair to admit the evidence.

The majority examined the underlying rationales for the existence of the spousal incompetency rule (para 43):

“The first justification for the rule is that it promotes conjugal confidences and protects marital harmony. The second is that the rule prevents “the indignity of conscripting an accused’s spouse to participate in the accused’s own prosecution” (Hawkins, at para. 38). Wigmore describes this second justification as the “natural repugnance in every fair-minded person to compelling a wife or husband to be the means of the other’s condemnation, and to compelling the culprit to the humiliation of being condemned by the words of his intimate life partner” (Wigmore on Evidence (McNaughton rev. 1961), vol. 8, at §2228, p. 217 …).”

Noting the controversy over whether the rule should be changed, the majority confronted the role of the courts as compared with the legislature, quoting (para 47) the following from Iacobucci J in R. v. Salituro, 1991 CanLII 17 (S.C.C.), [1991] 3 S.C.R. 654:

“Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law. As McLachlin J. indicated in Watkins, supra, in a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform; and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society. [p. 670]”

In New Zealand, the legislature has abolished the spousal non-compellability rule (as it had existed here), making spouses both eligible and compellable as witnesses: Evidence Act 2006, s 71. The New Zealand Law Commission, proposing this change, had observed (NZLC R55, Vol 1, para 342 – 343) that non-compellability could not be supported by logic or policy, citing the same edition of Wigmore (at para 2228) as that cited by the Couture majority, above, for the proposition that marital immunity is a mere anachronism and an indefensible obstruction to truth.

For the majority in Couture, Charron J concluded, on the incompetence point (para 71):

“…If this Court were to rule that statements made by spouses can be admitted at trial based solely on threshold reliability without further regard to the spousal incompetency rule, I agree with Mr. Couture’s contention that this would encourage the institutionalized taking of spousal statements for the express purpose of introducing them at trial, a practice that would seriously undermine the preservation of marital harmony. This result would constitute a significant inroad on Parliament’s policy choice to maintain the rule against spousal incompetency, a result not intended by the majority in Hawkins. For that reason, I would conclude that this factor alone is sufficient to distinguish this case from Hawkins. The operation of the principled approach to the hearsay rule would effectively thwart the spousal competency rule and, consequently, cannot provide a basis for admitting the evidence in this case.”

This made it unnecessary to consider what the position would have been if the principled exception to the hearsay rule applied. The policy of avoiding risk to marital harmony was dominant. However, since the other justification for the incompetence rule, namely the indignity of having one spouse participate in the other’s prosecution, became apparent in the light of the hearsay exception, that was considered too. In the circumstances of this case, the defence could only challenge the reliability of the spouse’s evidence by calling her as a witness (she being competent and compellable for the defence), and that would raise this second justification for the incompetence rule.

Here the trial judge’s application of the principled exception to the hearsay rule was wrong, and reviewable on appeal, in two respects: the judge had regarded the wife’s repetition of the alleged confessions to other people as corroboration (whereas a person cannot corroborate himself), and the judge had reversed the onus, effectively requiring the defence to show why the hearsay was unreliable (paras 83 – 85). This allowed the Supreme Court to substitute its own assessment, and the majority held that there were, here, no adequate substitutes for the inability to cross-examine the witness in testing the reliability of the evidence (para 91). It was not the sort of evidence that even a sceptical person would regard as trustworthy (para 101).

The minority differed on this point, holding that the evidence was sufficiently reliable to be admissible, and the absence of cross-examination insufficiently important to require its exclusion. The residual discretion therefore, on the minority’s approach, came into play: was there unfairness sufficient to outweigh the probative value of the evidence? The only unfairness that could arise here would be from the stress that the giving of the evidence would place on the defendant’s marriage, and it was held (para 142) that was minimal.

This difference in approaches to the hearsay exception calls to mind my discussion of the admissibility of hearsay confessions (see paper linked in blog for 28 May 2007). I argued there that the reliability threshold for the admission of hearsay evidence was in danger of being eroded if reliance was placed instead on the discretion to exclude improperly prejudicial evidence. Couture, itself a hearsay confession case, saw a split in whether the evidence was sufficiently reliable to be admissible as hearsay. Such a difference is of itself an illustration of why the reliability requirement should be applied rigorously. The rule should be strong because of the potential variety in assessments of the facts.

Clarity and obscurity

One of the things that makes law both difficult and interesting is the shift between clarity and obscurity. Authoritative statements of the law, expressed clearly and simply, and in apparently absolute terms, tend later to be qualified by cases in which those requirements are not treated as absolute.

Readers of Daniel and others v The State of Trinidad and Tobago [2007] UKPC 39 (13 June 2007) will, no doubt, be reminded of this characteristic of the law. In addition to the clarity/obscurity shift, there can also be a failure to offer a precise statement of law notwithstanding that the opportunity for such has arisen. Here, the Board declined (para 34) to formulate rules subsidiary to the requirement that a person in custody be informed of his right to legal advice. One of the appellants, being illiterate and therefore probably at some disadvantage, had been told of his right to a lawyer but had not been told how he might exercise that right. The Board held that it was a matter for the judge in the circumstances of each case to decide whether the defendant had been properly informed of his right to legal advice. In contrast, the approach that the Board took to this right in Ramsarran v Attorney-General of Trinidad and Tobago [2005] UKPC 8 (blogged here 28 February 2005) emphasises the social utility in facilitating the right to legal advice. That case, not cited in Daniel, concerned arrest on warrant for outstanding fines, whereas this involved murder.

Another point of appeal raised in Daniel was the omission of a good character direction, caused by the defendant’s counsel’s failure to raise the matter. This is something, the effect of which depends on the circumstances of each case; there are some cases where omission of mention of the defendant’s good character can result in the quashing of a conviction: see the blog on Gilbert v R 29 March 2006. In Daniel the omission of the point was held not to have prejudiced the fairness of the trial, as the defendant had been in custody awaiting trial on other serious charges at the time of his trial for murder. The Board held that the risk of this being disclosed to the jury if character were put in issue made counsel’s omission understandable.

An interesting, although not novel, point about secondary liability was mentioned in Daniel. Departure from a joint enterprise (or common intention) by one offender, who embarks on the commission of an offence outside that joint enterprise, can be followed by a decision by another offender to assist him in the commission of that new offence. The Board said this about secondary liability (para 38):

“The concepts of joint enterprise and aiding and abetting cannot be placed into watertight compartments. A defendant may have joined an enterprise to commit one crime, only to find that his companions went beyond what he had contemplated and so in committing a different crime were acting outside the bounds of the joint enterprise. He may nevertheless have remained with them and lent assistance or encouragement to them in the commission of the new crime, which would make him a secondary party as an aider and abettor. The judge may have failed to appreciate this in categorising the appellants’ participation exclusively as members of a joint enterprise in the case of Daniel and Archibald and as aiders and abettors in the case of Garcia and Marshall. This did not operate to their disadvantage, however, and if his directions were sufficient on the content of each concept and there was evidence on which they could properly so find, the jury were entitled to find the appellants guilty on the basis ascribed to each by the judge.”

Another topic raised in Daniel was inferences. The judge had not told the jury that they must exclude every inference consistent with innocence before they could find an accused guilty. (I will call that the exclusionary direction.) Instead, the normal direction on circumstantial evidence was given, amounting to little more than a reminder that guilt must be proved beyond reasonable doubt. The exclusionary aspect of the inferences direction was emphasised in Taylor v R (blogged 14 March 2006), and the need to consider inferences of innocence in the context of all the evidence in the case was stressed in R v Hillier (blogged 23 March 2007). These cases were not mentioned by the Board in Daniel. Whether the exclusionary direction needs to be given depends on what is appropriate in the circumstances of each case, as I noted in commenting on Taylor, but the vagueness of that approach means that the absence of an exclusionary direction on inferences will frequently become a matter for consideration on appeal.

The appeal of hypotheticals

On Wednesday Kirby J in the High Court of Australia made an interesting observation on the extent to which that Court should engage in speculation about the legal consequence of events that have not yet occurred:

Avoiding hypothetical decisions: … experience teaches that it is ordinarily wise to withhold substantial comments on the consequences of future events for legal rights and duties. Those events (if they occur at all) have an unpleasant habit of following an unpredictable course, often quite different from that anticipated at an earlier time. From its earliest days to the present, this Court has been reluctant to proffer legal advice and predictions on the basis of hypothetical facts that have not yet arisen [footnote: The State of South Australia v The State of Victoria (1911) 12 CLR 667 at 674-675; In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 267; North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 623, cf 666-668; Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334 at 357 [49] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ]. In part, this reluctance has grown out of the constitutional requirement for there to be a “matter” before the Court. There is no problem in that regard in the present proceeding. The appellant’s appeal is such a “matter”. In part, it has arisen because of the Court’s usual unwillingness to expand the ambit of the “matter” by offering predictions about the outcome of arguments of double jeopardy, in any future trial of the appellant, in advance of any such trial and without the concrete circumstances, enlivened by evidence, said to give rise to the peril of double jeopardy forbidden by the earlier judgment of acquittal. As recent divided decisions of this Court show, this is a tricky area of the law. It contains many difficulties [footnote: Pearce v The Queen (1998) 194 CLR 610; Island Maritime Ltd v Filipowski (2006) 226 CLR 328. See also R v Carroll (2002) 213 CLR 635].”

The case before the Court, AJS v R [2007] HCA 27 (13 June 2007) involved the power of a court of appeal to order a new trial. The point is not controversial, and essentially is that where a jury has been directed that, if it finds the accused guilty on one count, it should not consider whether or not the accused is guilty on an alternative count, and it does find him guilty of the first count, a court of appeal may, if it quashes the conviction and enters an acquittal on that count, order a new trial on the alternative count.

The fact that complex issues may arise, if the prosecution decides to proceed with the new trial on the remaining count, is irrelevant. Arguments about double jeopardy are immaterial. The other judges, in a joint judgment (making an order with which Kirby J agreed), did give some consideration to what might happen if such arguments were raised, and decided this point as follows:

“19. No question of double jeopardy arises in the present matter. The proceedings commenced by the prosecution against the appellant were, as the Court of Appeal’s orders recognised, only partly determined by that Court’s disposition of the appeal. The second of the offences now under consideration (the offence of committing an indecent act) was a statutory alternative to the first. There has been and would be no double prosecution of the kind considered in Pearce. In Pearce, the prosecution sought and obtained convictions for two offences charged in the one indictment. Further, unlike Island Maritime, there would be no separate institution of a second prosecution. In this case the prosecution does not seek to institute new and different proceedings against the appellant after the final determination (against the prosecution) of earlier proceedings. The charge of incest preferred against the appellant has now been finally resolved in his favour. He is entitled to the entry of judgment and verdict of acquittal of that offence. But the other, lesser, statutory alternative offence of committing an indecent act put in issue by the presentment charging the appellant with incest has not been determined by the Court of Appeal and remains unresolved.”

Whether that is an acceptable approach to what constitutes double jeopardy is arguable. It seems beside the point to rely on procedural niceties, saying the proceedings hadn’t been determined. At the trial there was a fundamental error (leaving to the jury a charge on which there was insufficient evidence) which caused the jury to fail to consider the alternative charge. From the accused’s point of view, he was in jeopardy of conviction on either charge as soon as the trial started, and this jeopardy continued until the jury returned its verdict. The prosecution did not seek to withdraw either charge, and would have been happy with a conviction on one or the other. It was not the accused’s fault that the trial was completed unsatisfactorily. The double jeopardy rules (available to the accused in the form of the special pleas of autrefois convict or autrefois acquit, or as an application to stay the second proceedings) stem from the need to prevent an abuse of the court’s process. Such an abuse would, arguably, occur if the accused had to undergo a new trial because of this sort of systemic failure.

On the other hand, errors often occur which, when they are corrected on appeal by the quashing of convictions, lead to a new trial being ordered. Such new trials are not counted as double jeopardy. Often this occurs because the judge makes a mistake when summing up the case to the jury. These sorts of errors, certainly not the fault of the accused, result in the accused having to undergo another trial. At that trial the prosecution may be able to present a stronger case as a result of having had weaknesses highlighted by the accused at the first trial. That is not usually thought of as double jeopardy. Plainly, the policy underlying the double jeopardy doctrine needs to be clearly articulated and its applications rationalised.

Kirby J’s reservations about deciding the double jeopardy point, which is hypothetical on the present case, partly focused on the fact that the High Court has reserved its decision in a case in which the meaning of giving the accused the “full benefit” of an acquittal has to be decided (Washer v The Queen, reserved 27 April 2007). His point appears to be that it would be unfortunate if the reasoning in the joint judgment in the present case (where full argument on particular facts had not been heard) were to be used as a precedent for deciding the case that is currently reserved.

Bias and sensitivity

It seems that a reasonable apprehension that the judge is biased will be sufficient grounds for a rehearing, regardless of whether the judge’s decision was correct. This is a reflection of the absolute nature of the accused’s right to a fair hearing: a conviction resulting from an unfair hearing will be quashed. There are many examples of cases where this has occurred, without the appellate court investigating the merits of the conviction, as the index to these blogs reveals. I discussed the High Court of Australia’s decision in Antoun v R on 8 February 2006, and suggested that

“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.”

As yet there is no example of a court making this, at least theoretically possible, distinction between apprehended and actual bias. A recent example of apprehended bias is R v Teskey [2007] SCC (7 June 2007). Here the Supreme Court of Canada was concerned with a case where a judge, sitting alone, had announced his verdict some four months after hearing the evidence, without giving reasons, and 11 months passed before the written reasons were given, by which time the defendant had appealed against his conviction.

The decision of the majority was delivered by Charron J. Apparent bias and actual bias were seen as equally objectionable:

“21 As reiterated in R v S. (R.D.) [1997] SCC 324, [1997] 3 SCR 484, fairness and impartiality must not only be subjectively present but must also be objectively demonstrated to the informed and reasonable observer. Even though there is a presumption that judges will carry out the duties they have sworn to uphold, the presumption can be displaced. The onus is therefore on the appellant to present cogent evidence showing that, in all the circumstances, a reasonable person would apprehend that the reasons constitute an after-the-fact justification of the verdict rather than an articulation of the reasoning that led to it.”

In Teskey, the facts were relatively complex and the case against the defendant was circumstantial. Delay in giving reasons would not, of itself, have been sufficient to sustain a claim of apparent bias, but other matters combined to support a reasonable apprehension of bias. These were (para 23):

  •  the trial judge’s obvious difficulty in arriving at a verdict in the months following the completion of the evidence;
  •  the absolutely bare declaration of guilt without any indication of the underlying reasoning;
  •  the trial judge’s expressed willingness to reconsider the verdicts immediately after their announcement;
  •  the nature of the evidence that called for a detailed consideration and analysis before any verdict could be reached;
  •  the failure of the trial judge to respond to repeated requests from counsel to give reasons;
  •  the contents of the reasons referring to events long after the announcement of the verdict suggesting that they were crafted post-decision;
  •  the inordinate delay in delivering the reasons coupled with the absence of any indication that his reasons were ready at any time during the 11 months that followed or that the trial judge had purposely deferred their issuance pending disposition of the dangerous offender application.

In this appeal the Court of Appeal had had regard to the judge’s written reasons in upholding the conviction, and the Supreme Court held that the Court of Appeal should not have done that. Instead of remitting the case to the Court of Appeal for it to consider the question of the conviction on the basis of the record of the hearing, a retrial was ordered. Although the only indication of bias appears to have arisen from the post-hearing events, the judge-alone procedure carries with it a right to have reasons given for the decision, and those become part of the material proper for consideration on appeal. This was a case where it would seem to a reasonable person that the reasons were a justification for the verdict, rather than the verdict being a result of the reasons, and this approach would naturally have obscured any errors of reasoning that had led to the verdict. The appellant was therefore deprived of the opportunity to challenge the reasons for the verdict.

Abella J delivered the dissenting judgment of herself, Bastarache and Deschamps JJ. This placed emphasis on the presumption of judicial integrity and the high threshold required to displace that presumption. There was nothing in the case, in the opinion of the minority, to displace that presumption.

Is talk of presumptions and thresholds really appropriate in this context? Why should there be obstacles to exposing bias? Certainly, cogent evidence of bias should be required, but it does not follow that a high standard of proof of bias should be reached before the appellate court will look at the issue. Some people would see the conferment, by the judges at common law, of this sort of immunity on their judicial colleagues as rather sanctimonious; a bias against bias.

Looking overseas

Do rights-based restrictions on acceptable evidence collecting procedures apply to officials who act outside the jurisdiction of the country in which the trial is ultimately held? In R v Hape [2007] SCC (7 June 2007), a case that will be a leading authority on extra-territoriality and international criminal law, the Supreme Court of Canada decided that, while the Charter of Rights and Freedoms does not apply outside Canada’s territory, when the trial is subsequently governed by Canadian law questions regarding the admissibility of evidence are answered by reference to the acceptability of what happened judged in the light of the Charter.

By this approach, the fact that a course of conduct in the collection of evidence was lawful in the foreign jurisdiction would not be determinative of the admissibility of the evidence in a Canadian court. The ultimate criterion was, in this case, referred to as the “fair trial” requirement, although this usage of that expression must be read in context. The reference here is not to trial fairness in the technical sense of a trial in which the law is properly applied to facts that are determined without bias, but rather it is to fairness in the public policy sense: would admission of the evidence bring the administration of justice into disrepute?

Hape contains dicta on the interpretation of Charter provisions in view of Canada’s obligations in respect of international human rights law, particularly:

“56. In interpreting the scope of application of the Charter, the courts should seek to ensure compliance with Canada’s binding obligations under international law where the express words are capable of supporting such a construction.”

In this case, RCMP officers conducted searches of the defendant’s business documents held in the Turks and Caicos Islands, under supervision of an official of that country, and believing that they were acting lawfully. There was no evidence that what was done was not lawful, and in the circumstances the searches were not unreasonable in terms of s 8 of the Charter.

This approach is what we anticipated here, in blogging the European Court’s decision re an Application by Saddam Hussein (see 17 March 2006). Questions still exist concerning what approach is appropriate to the possible use of torture in a foreign jurisdiction, resulting in the obtaining of evidence for use in a domestic court. We considered this in commenting on the House of Lords case A v Secretary of State for the Home Department (see 9 December 2005). Neither of those cases was mentioned in Hape.