A critical age

A glance at practice in other nations supported the United States Supreme Court’s decision (6-3) that the Constitution does not permit a person under the age of 18 years at the time of his offending to be sentenced to life imprisonment without parole for a nonhomicide offence: Graham v Florida [2010] USSC No 08-7142, 17 May 2010.

The Eighth Amendment, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”, is the governing provision. Kennedy J, delivering the opinion of the Court, observed:

“To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to ” ‘the evolving standards of decency that mark the progress of a maturing society.’ ” Estelle v. Gamble, 429 U. S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)). “This is because ‘[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.’ ” Kennedy v. Louisiana, 554 U. S. ___, ___ (2008) (slip op., at 8 ) (quoting Furman v. Georgia, 408 U. S. 238, 382 (1972) (Burger, C. J., dissenting)).”

The criterion is proportionality, and the Court has adopted a classification of cases: there are firstly, cases where all the circumstances are considered. For example,

“…closely divided, the Court rejected a challenge to a sentence of 25 years to life for the theft of a few golf clubs under California’s so-called three-strikes recidivist sentencing scheme.Ewing v. California, 538 U. S. 11 (2003); see also Lockyer v. Andrade, 538 U. S. 63 (2003).”

These startling but acceptable punishments have been upheld in a decision process where the offender (appellant) must show, as a threshold, gross disproportionality between the sentence and the crime before the appellate court will proceed to compare his sentence with those imposed in the same jurisdiction and in other jurisdictions. The sentence is only cruel and unusual if this comparison confirms the initial perception of gross disproportionality.

The present case was not in this category.

The second category in the classification of cases is where rules are applied to define Eighth Amendment standards. Until now, these cases had concerned the death penalty. There were two subsets of cases in this second category: those considering the nature of the offence, and those considering the characteristics of the offender. So, the death penalty cannot be applied where the crime against an individual is not a homicide. Nor can it be applied where the crime was committed when the offender was under 18 years old. Nor where his intellectual functioning was in a low range.

Since the present case was not in the first category, the threshold approach was not applicable. This case sought an addition to the subsets in the second category so that it would apply to all those who were under 18 years old at the time of their offending.

The advantage of a case being in the second category is that without a threshold having to be met the Court would look at the national legislation and sentencing practice to see if there is consensus indicating society’s standards, then the Court would exercise its own independent judgment to decide whether the punishment violates the Eighth Amendment in the light of precedent, text, history, meaning and purpose.

The Court looked at national sentencing practice and concluded

“The sentencing practice now under consideration is exceedingly rare. And “it is fair to say that a national consensus has developed against it.” Atkins v. Virginia, 536 U. S. 304 (2002)16, at 316.”

Then,

“The judicial exercise of independent judgment requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question.”

The Court’s precedents regarding the characteristics of juvenile offenders, their vulnerabilities and their prospects for reform on maturity, the need for a line to be drawn between murderers and other offenders, and the severity of a sentence of life imprisonment without parole especially for juveniles, the absence of any penological justification (retribution, deterrence, incapacitation, rehabilitation) for such a sentence, led to the conclusion that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.

So, why the age of 18 as the dividing line?

The alternative would be a case-by-case approach to assessing an offender’s responsibility, but the Court rejected that because a sentencing court could be easily influenced, by the depravity of offending, to underestimate the offender’s chance of reform, and also because juveniles do not necessarily communicate adequately with their counsel. All juveniles should be given the opportunity to demonstrate maturity, to show remorse, and to achieve rehabilitation.

Looking beyond the borders of the USA, the Court noted that the sentencing policy hitherto adhered to is rejected the world over.

“This observation does not control our decision. The judgments of other nations and the international community are not dispositive as to the meaning of the Eighth Amendment. But ” ‘[t]he climate of international opinion concerning the acceptability of a particular punishment’ ” is also ” ‘not irrelevant.’ ” Enmund, 458 U. S., at 796, n. 22.”


“We also note, as petitioner and his amici emphasize, that Article 37(a) of the United Nations Convention on the Rights of the Child, Nov. 20, 1989, 1577 U. N. T. S. 3 (entered into force Sept. 2, 1990), ratified by every nation except the United States and Somalia, prohibits the imposition of “life imprisonment without possibility of release . . . for offences committed by persons below eighteen years of age.””

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The mental elements of conspiracy

Conspiracy is an agreement to commit an offence plus an intention that the offence should be committed by one or more of the conspirators. This means that recklessness as to whether or not the offence is committed is not enough: there must be an intention that it will be committed: R v LK; R v RK [2010] HCA 17 (26 May 2010).

When I summarise it so simply, the position seems obvious. How could it possibly be argued that D is conspiring if he is only reckless as to whether the full offence is committed?

In the appeals in LK and RK the alleged full offence was dealing with money while being reckless as to whether or not it was proceeds of crime. So, on the alleged conspiracies, why wasn’t it enough for Ds to agree to deal with the money while intending that they should be reckless as to whether the money was proceeds of crime?

Intending to be reckless, in this context, is the same as being reckless as to whether there is an agreement to commit the offence. Therefore it is insufficient for conspiracy.

The joint judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ (and Heydon J agreeing at 145) puts it like this at 122:

” … At the time the agreement was made the money may, or may not, have been (or have become) proceeds of crime. The agreement, if carried out in accordance with LK’s and RK’s intention, may not have involved a dealing with money that is proceeds of crime. It follows that, on the evidence given at the trial, it was not open to find that either respondent intentionally entered an agreement to commit the offence that is said to have been the object of the conspiracy.”

French CJ said much the same thing at 77:

” … There cannot be a conspiracy in which the parties to the agreement are reckless as to the existence of a circumstance which is a necessary element of the offence said to be the subject of the conspiracy. Such recklessness would be inconsistent with the very intention that is necessary at common law and under the Code to form the agreement alleged. In this case that intention is an intention to deal with money which is proceeds of crime. Recklessness as to whether the money is proceeds of crime is recklessness about a term of the agreement constituting the conspiracy…”.

The Chief Justice leaves it to law students to work out whether his reasons on this point are the same as those of the other justices.

And, while you can’t recklessly conspire, you can conspire to be reckless: Ansari v R [2010] HCA 18 (26 May 2010). In LK there was recklessness as to recklessness, and no conspiracy, whereas in Ansari there was intention to be reckless, and a conspiracy. The mens rea for conspiracy must be kept separate from the mens rea for the full offence. Whatever the latter may be, intention to commit the full offence is required for the conspiracy.

Highest procedural protection, but not by jury trial

Since proceedings for contempt of court must be summary, in the sense that jury trials are not appropriate for contempt, they cannot be punished at a level that would carry the right to jury trial: Siemer v Solicitor-General [2010] NZSC 54 (17 May 2010) per Blanchard, Wilson and Anderson JJ.

The minority (Elias CJ and McGrath J) agreed that summary procedure for attempt was necessary, but that punishment could be imposed at a level that would otherwise require a jury trial because that was a justified limitation on the right to trial by jury.

Therefore Mr Siemer won this appeal, in the sense that the punishment for his contempt could not exceed 3 months’ imprisonment – the level at which in New Zealand the right to jury trial arises (with some minor exceptions) pursuant to s 24(e) New Zealand Bill of Rights Act 1990.

The reasoning in the majority judgment contains an interesting turn-around, without being objectionable. Starting from the proposition that whenever a person can be punished by imprisonment he is entitled to the highest procedural protection known to the law (citing Wilson J as she then was in R v Wigglesworth [1987] 2 SCR 541), and that this applies whether or not the liability arises from criminal or civil proceedings, the majority added that s 5 of the Bill of Rights does not permit an exception to the right to trial by jury if the penalty for a contempt should be more than three months’ imprisonment. So far, so good: one would think the majority reasoning was heading to a conclusion that jury trial was available. But no. There had never been a jury trial in proceedings for contempt in New Zealand, and the Court of Appeal had held that contempt proceedings are not indictable: Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 at 235, as had the House of Lords: Re Lonrho Plc [1990] 2 AC 154. Since jury trial is inappropriate for contempt, the maximum penalty cannot exceed the summary level.

Obviously, repetition of the contempt could attract a further sentence. This was a case of contempt committed by a blogger, and the majority noted that it seems that on the internet a new contempt is committed every time access is permitted to the relevant item: Loutchansky v Times Newspapers Ltd (No 2) [2001] EWCA Civ 1085 at 51 – 76; Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at 42 – 44, 128 and 191 – 196. The majority noted that some long periods of imprisonment have occurred for on-going contempts in the United States (para 58, footnote 65), but “It is very unlikely, indeed impossible, that a New Zealand court would follow that extreme example…”.

Here the sentence was tailored to give the contemnor the opportunity of immediate release upon his cessation of the contempt and upon his undertaking not to repeat it, and indeed the commencement of the sentence was delayed to give him that opportunity. It seems that Mr Siemer believes that he removed the offending items from his site some time ago.

Relativity and mitigating factors

Lawyers’ reasoning is not always easy for non-lawyers to grasp. It is obvious to criminal lawyers that if at sentencing a mitigating factor is absent, the offender is not being punished additionally because of that absence.

Today the High Court of Australia addressed this sort of logic in Republic of Croatia v Snedden [2010] HCA 14. Mr Snedden had resisted extradition to Croatia by claiming as an extradition objection that if tried in Croatia he would be subject to additional punishment because of his political beliefs. Service in the Croatian army, he claimed, was treated as a mitigating factor in relation to the relevant offences, and since he had served in the Serbian army he would be subject to additional punishment.

Heydon J pointed out that there was no factual substratum for Mr Snedden’s claim. There was an absence of proof of the practice of Croatian courts in the relevant respect (83). So it was unnecessary to consider the issues that would arise if there was such proof.

The other members of the Court did address those issues. French CJ highlighted the absence of a causal connection between the absence of the mitigating factor and the claimed relevance of Mr Snedden’s political beliefs to the punishment he could face (24). Just because the Croatian court would not be able to mitigate penalty on the basis of service in the Croatian army, did not mean that the court would be considering what Mr Snedden’s political beliefs might have been.

French CJ did not dissent from the general proposition in the joint judgment (Gummow, Hayne, Crennan, Kiefel and Bell JJ at 79) that absence of a mitigating factor does not mean that an offender is being punished for its absence:

“79 A rational sentencing system will accommodate mitigating factors arising from the circumstances of the offender and the offence. In that context, ineligibility for a mitigating factor at the sentencing stage of a trial cannot be said to be punishment. Conceptually, the absence of a mitigating factor does not constitute or attract punishment. In particular, the absence of a mitigating factor is not an aggravating factor. Thus, while a plea of guilty is a mitigating factor, a plea of not guilty is not an aggravating factor.”

There was no evidence here that absence of the mitigating factor would be treated as a punishment.

By way of comment, one might say it is all relative. If there were two accused persons being sentenced, only one of whom could rely on the mitigating factor (for example a plea of guilty), then from the point of view of the accused who pleaded not guilty, he is receiving a heavier punishment than the other, and the only reason – from his own point of view – is that he pleaded not guilty. He does not see the big picture. It is only when the frame of reference is changed to that of a third person (a spectator or the judge) that the wider theory of sentencing is apparent.

Courts insist on the “big picture” frame of reference because there are sound policy reasons for recognising mitigating factors. That is sensible and inevitable. Getting clients to understand the justice of the reasoning is an entirely different problem.

Finding mistrial and ordering retrial after acquittal

In R v Gwaze [2010] NZSC 52 (17 May 2010) a retrial was ordered because some defence evidence had been admitted wrongly and there had been no proper opportunity at trial for the Crown to respond to it.

There is nothing particularly odd about that. Unusual, yes, because this was an appeal against an acquittal, and this seems to be the first time in New Zealand that a retrial has been ordered on this sort of appeal. Occasionally there are appeals on questions of law reserved during trials (s 380 Crimes Act 1961) – but success on these is not inevitably followed by retrial.

A number of interesting points were considered in this judgment of the Court delivered by the Chief Justice:

Double jeopardy

The rules concerning double jeopardy (s 26(2) New Zealand Bill of Rights Act 1990) do not apply in this context because there is a high hurdle (s 382(2)(b) Crimes Act 1961) for the prosecution to overcome before a retrial will be ordered and there is no need for the extra protection that the rules against double jeopardy afford (para 67).

Mistrial

A mistrial (s 382(2)(b) Crimes Act 1961) occurs where an error at trial is reasonably capable of affecting the verdict, in the sense that it is highly material to the verdict so that the integrity of the verdict was undermined by it (57, 61), applying R v Matenga [2009] NZSC 18 (blogged here 9 July 2009 and 20 July 2009).

Question of law

A ruling as to the admissibility of evidence is a ruling on a question of law (52). This should be obvious, because admissibility is governed by statute (with minor exceptions) and the application of statute is a matter of law. To get to that conclusion, however, an unnecessary change in terminology was made: the decision to admit or exclude evidence is no longer to be called a discretion: it is an exercise of judgment (49, 51). The description in R v Leonard [2008] 2 NZLR 218, (2007) 23 CRNZ 624 (CA) para 22 of the balancing exercise in determining the admissibility of improperly obtained evidence as a “discretion” will have to be read in this new light.

In this case (and I do not discuss the facts as a retrial was ordered) the contested evidence should have been ruled inadmissible because it was unreliable hearsay (44), it was opinion that was not substantially helpful (46), and its prejudicial effect outweighed its (zero) probative value (48).

The Court held that the evidence was irrelevant (37-40). Strictly, there was no need for the Court to give other reasons for its being inadmissible, as s 7(2) Evidence Act 2006 excludes it. Even so, the evidence was irrelevant because it was not sufficiently connected to the facts in the trial. It was a preliminary assessment, recognising a possibility that a connection might emerge, but also recognising that there may be no connection, and that further inquiry was needed.

Clean scene or snitch glitch?

My criticism of the New Zealand Supreme Court’s majority decision in Morgan v R can now be assessed in the light of a correct approach by the Supreme Court of Canada to the use of a jailhouse informer’s evidence in R v Hurley [2010] SCC 18 (14 May 2010).

In Hurley the cell mate claimed that the accused had confessed to him that he had cleaned the crime scene in an effort to remove evidence of his participation; in particular, he had attempted to remove all traces of his DNA.

One of the requirements of the warning that must be given to the jury in such cases (this in Canada is called the Vetrovec warning, after R v Vetrovec [1982] 1 SCR 811) applies where reasons to doubt the reliability of a witness may not be self-evident to the jury:

“something in the nature of confirmatory evidence should be found before the finder of fact relies upon the evidence of a witness whose testimony occupies a central position in the purported demonstration of guilt and yet may be suspect by reason of the witness being an accomplice or complainant or of disreputable character…” (Vetrovec, per Dickson J, para 42).

See also my discussion of R v Khela [2009] SCC 4.

In the circumstances in Hurley, supporting evidence for the cell mate could only be evidence that the crime scene had been cleaned. There was no issue that the accused had been at the scene, but he gave an innocent explanation for that, so presence of some of his DNA would not be conclusive. This is encapsulated in para 7 of Hurley (Mr Niemi is the cell mate):

“The evidence about the attempts to clean the room was unquestionably significant to the Crown’s case. In his closing address, Crown counsel submitted to the jury that, on the evidence before the court, it was “clear that there was an attempt to clean the room” … . The evidence of attempts to clean the room could be taken as independent evidence tending to support Mr. Niemi’s evidence about his conversation with Mr. Hurley. In turn, Mr. Niemi’s evidence supported the Crown’s case that Mr. Hurley had not only been there, but also that he was the killer. Thus anything that tended to rebut the room cleaning theory tended to weaken the independent evidence that could be seen as supporting Mr. Niemi’s version of the conversation with Mr. Hurley and, consequently, weakened the Crown’s circumstantial case.”

There was fresh evidence concerning the finding of Mr Hurley’s DNA at the crime scene – this evidence was not available to the Court of Appeal – and the Supreme Court ordered a new trial. This evidence made it unnecessary for the Court to address the seriousness of criticism of the trial judge’s Vetrovec warning, which was that the jury had not been told sufficiently why they might have reservations about the credibility of the cell mate’s evidence of the accused’s confession.

Hurley brings into focus the need for precision as to what evidence is capable of supporting, or undermining, the reliability of the contested evidence. Whereas in Morgan the New Zealand court majority judgment was imprecise on this (and precision would have revealed that there was no such supporting evidence), in Hurley the Canadian court highlights the supposedly supportive evidence and concludes that a second jury might not think it was as strong, in the light of the fresh evidence, as it had seemed.

Confidentiality and clear decision modelling

Anyone interested in claims to privilege by the media, especially claims in resistance to the execution of search warrants, will need to read R v National Post
[2010] SCC 16 (7 May 2010).

I mention it here only in passing, for it would otherwise require lengthy exposition. The point that will attract the attention of readers familiar with R v Grant and the questionable application of that decision in R v Harrison (see my blogs for 18.7.09, and 19.7.09) is the two-dimensional nature of the conceptual model used in National Post, in contrast to the three dimensional model suggested in Grant.

Grant concerned the admissibility of improperly obtained evidence, and there is an obvious analogy between that and the issue in National Post. The link is whether seizure of the contested evidence would be improper and the consequences if it was.

National Post adopts the Wigmore criteria for deciding whether a claim to privilege should be permitted:

“[53] The “Wigmore criteria” consist of four elements which may be expressed for present purposes as follows. First, the communication must originate in a confidence that the identity of the informant will not be disclosed. Second, the confidence must be essential to the relationship in which the communication arises. Third, the relationship must be one which should be “sedulously fostered” in the public good (“Sedulous[ly]” being defined in the New Shorter Oxford English Dictionary on Historical Principles (6th ed. 2007), vol. 2, at p. 2755, as “diligent[ly] . . . deliberately and consciously.”). Finally, if all of these requirements are met, the court must consider whether in the instant case the public interest served by protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth. See Wigmore on Evidence (McNaughton Rev. 1961), vol. 8, at § 2285; Sopinka, Lederman and Bryant: The Law of Evidence in Canada (3rd ed. 2009), at paras. 14.19 et seq.; D. M. Paciocco and L. Stuesser, The Law of Evidence (3rd ed. 2002), at pp. 163-67. Further, as Lamer C.J. commented in Gruenke:

“This is not to say that the Wigmore criteria are now “carved in stone”, but rather that these considerations provide a general framework within which policy considerations and the requirements of fact-finding can be weighed and balanced on the basis of their relative importance in the particular case before the court. [p. 290]”

The fourth step is the weighing exercise that here is two-dimensional: the two public interests are weighed against each other.

“[58] The fourth Wigmore criterion does most of the work. Having established the value to the public of the relationship in question, the court must weigh against its protection any countervailing public interest such as the investigation of a particular crime (or national security, or public safety or some other public good).”


“[61] The weighing up will include (but of course is not restricted to) the nature and seriousness of the offence under investigation, and the probative value of the evidence sought to be obtained, measured against the public interest in respecting the journalist’s promise of confidentiality. …”.

Notable here, where we are thinking of an analogy with the balancing involved in deciding the admissibility of improperly obtained evidence, is the linking of seriousness of the offence and the probative value of the evidence. Those are matters that could properly be imagined as belonging on a y-axis. Against them is the public interest against admission, and in the context of improperly obtained evidence this would be measured on an x-axis. These two axes would indicate two boundaries of a field of balance points, and the field would be divided, in a way reflecting policy, into areas of admission and exclusion.

This is a conceptually clear model, and avoidance of any suggestion of three-armed balances is welcome. This is a conceptually clear model, and avoidance of any suggestion of three-armed balances is welcome. The Grant model presented the difficulty of regarding as a third arm of the balance the impact of the impropriety on the accused; instead of seeing this as a third arm, it would be better to combine it with the “seriousness of the impropriety” arm, or to separate it out as a prerequisite to getting to the balancing stage in a way akin to the role of the first three of the Wigmore factors.

Beware! Teachers may even now be preparing their “compare and contrast” exam questions.