Voices of reason

Thanks are due to UKSCBlog for drawing our attention to video interviews with some of the Justices, published by the Guardian.

We simply don’t do that

Acceptance of a bribe can occur after the performance of an act beneficial to the payer and without any expectation of payment when the act was done: Field v R [2011] NZSC 129 (27 October 2011).

This is because [59] “it is simply wrong for an official to accept money or like benefits in return for what has been done in an official capacity.”

And [61] an environment would otherwise be created where

“(a) an official who receives such benefits will come to expect similar benefits in the future and is likely to act accordingly; and

(b) members of the public who know about, or suspect, what has happened will come to believe that unless they too provide such benefits, they will not receive dispassionate consideration and, if prepared to provide such benefits, will receive corresponding advantages.”

Any expressions to the contrary as might be detected in previous cases or law commission reports didn’t matter.

“[62] … there is a fundamental inconsistency between the performance of official functions and the acceptance of private rewards for doing so. In large measure this is a corollary of the first reason in the paragraph above. But associated with this are related expectations about the way in which those in official positions, including Members of Parliament, can be expected to act. This consideration is also illustrated by the facts of the present case.”

But there is room for courtesies:

“[65] … if there is an exception, it must address the extent of the gift and the particular context in which it occurs. We consider, therefore, that there must be a de minimis defence in relation to gifts of token value which are just part of the usual courtesies of life.”

As to the element that a bribe be accepted “corruptly”,

“[66] … In part it captures the requirement for a defendant to have acted knowingly. In the present case, this requirement required the Crown to establish that the appellant knew that the services he received were provided in connection with the immigration assistance he gave, meaning that he knowingly engaged in conduct which the legislature regards as corrupt. As well, it is the presence in s 103(1) (and like provisions) of the word “corruptly” which permits the de minimis exception to liability which we accept exists.”

Deflecting the jury from its fundamental task

“The instructions which a trial judge gives to a jury must not, whether by way of legal direction or judicial comment on the facts, deflect the jury from its fundamental task of deciding whether the prosecution has proved the elements of the charged offence beyond reasonable doubt.”

Hargraves v The Queen; Stoten v The Queen [2011] HCA 44 (26 October 2011) at [45] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

It was a potential breach of this for the judge to direct the jury that in assessing the defendant’s evidence they could take into account his interest in the verdict.

Other examples of possible deflection of the jury from their task mentioned here are comment on the defendant’s failure to give evidence [43] and asking the defendant in cross-examination why the complainant is lying [44].

Deflection of the jury from its fundamental task is a miscarriage of justice. Whether deflection has occurred in a particular case must be assessed in the context of the whole of the summing up and the circumstances of the case. As it turned out here, there was no miscarriage, because the jury would not have understood the judge to be saying that the evidence of a defendant must be scrutinised more carefully than that of other witnesses.

Omission? What omission?

For discussion of liability for omissions under the law of the Commonwealth of Australia, see Commonwealth Director of Public Prosecutions v Poniatowska [2011] HCA 43 (26 October 2011).

The majority held that legislation had failed to specify what act that was omitted was necessary for the actus reus of an offence of engaging in conduct that resulted in the obtaining a financial advantage that the defendant knew or believed he was not eligible to receive. Here, conduct is defined as including an omission to perform an act, and an omission is only a physical element of an offence if the law creating the offence makes it so.

The legislature, anticipating this glitch, introduced a new section (s 66A) into the relevant legislation. This enabled the requiring of a person to do a specific act in the relevant circumstances, namely to give information. Omission to do that specified act would apparently be sufficient for this element of the actus reus.

Heydon J, dissenting, criticised the increasing vagueness of statutory criminal law. He referred to

” … the proposition advanced by the responsible Minister, when the Code was introduced into the House of Representatives in 1995, that it would reflect Benthamite ideals of certainty in the criminal law [footnote: Australia, House of Representatives, Parliamentary Debates (Hansard), 1 March 1995 at 1331]. One does not often encounter a more striking illustration of the vanity of human wishes. That is because very many parts of the Code, including the parts debated in this appeal, are inconsistent with those ideals. They represent a significant regression from the condition of Commonwealth, State and Territory criminal law as it was before 1995. That criminal litigation under the Code is conducted with any semblance of ordered justice is a tribute to the Australian legal profession, not to the Commonwealth legislature.”

So, legislatures, sharpen your Act(s). Ho ho.

Some errors of law in judicial fact finding

For a reminder of the kinds of things that can be errors of law arising out of a trial judge’s treatment of the evidence, see R v J.M.H. 2011 SCC 45. The headnote summarises them from the judgment of the Court delivered by Cromwell J at [24] – [32]:

“The Crown’s right of appeal from an acquittal of an indictable offence is limited to ‘any ground of appeal that involves a question of law alone’. The jurisprudence currently recognizes at least four types of cases in which alleged mishandling of the evidence may constitute an error of law alone giving rise to a Crown appeal of an acquittal; this may not be an exhaustive list. First, it is an error of law to make a finding of fact for which there is no evidence. However, a conclusion that the trier of fact has a reasonable doubt is not a finding of fact for the purposes of this rule. Second, the legal effect of findings of fact or of undisputed facts may raise a question of law. Third, an assessment of the evidence based on a wrong legal principle is an error of law. Fourth, the trial judge’s failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error of law, but this error will be found to have been committed only if the reasons demonstrate that this was not done. The trial judge’s reasonable doubt did not have to be based on the evidence; it could arise from the absence of evidence or a simple failure of the evidence to persuade him to the requisite level of beyond reasonable doubt. It is only where that reasonable doubt is tainted by a legal error that appellate intervention in an acquittal is permitted.”

That decision (maple) tree again

If evidence was wrongfully obtained, what is the relevance to its admissibility that it could have been obtained lawfully?

Sometimes failure to use lawful means would aggravate the wrongfulness. Other times the lawful alternative would diminish the wrongfulness. When?

The Supreme Court of Canada got to grips with this in R v Côté 2011 SCC 46 (14 October 2011). The context for this sort of decision in Canada is R v Grant 2009 SCC 32, which I had some fun with here on 18 July 2009 for its complex model of how admissibility of improperly obtained evidence is to be decided. Grant was referred to recently by the Supreme Court of New Zealand in Hamed v R, discussed here on 19 September 2011.

So to the vital bit of Côté. The term “discoverability” means the ability to discover the evidence lawfully. Two “branches” of the Grant model have to be addressed: the seriousness of the misconduct, and its impact on the defendant Cromwell J delivering the joint judgment):

“[71] I turn to the first branch of the Grant test which is concerned with the seriousness of the Charter-infringing state conduct. If the police officers could have conducted the search legally but failed to turn their minds to obtaining a warrant or proceeded under the view that they could not have demonstrated to a judicial officer that they had reasonable and probable grounds, the seriousness of the state conduct is heightened. As in Buhay, a casual attitude towards, or a deliberate flouting of, Charter rights will generally aggravate the seriousness of the Charter-infringing state conduct. On the other hand, the facts that the police exhibited good faith and/or had a legitimate reason for not seeking prior judicial authorization of the search will likely lessen the seriousness of the Charter-infringing state conduct.

“[72] We come now to the effect of discoverability on the second branch of the Grant test — the impact on the Charter-protected interests of the accused. Section 8 of the Charter protects an individual’s reasonable expectation of privacy. That reasonable expectation of privacy must take account of the fact that searches may occur when a judicial officer is satisfied that there are reasonable and probable grounds and authorizes the search before it is carried out. If the search could not have occurred legally, it is considerably more intrusive of the individual’s reasonable expectation of privacy. On the other hand, the fact that the police could have demonstrated to a judicial officer that they had reasonable and probable grounds to believe that an offence had been committed and that there was evidence to be found at the place of the search will tend to lessen the impact of the illegal search on the accused’s privacy and dignity interests protected by the Charter.”

Nothing controversial there.

I still think the Canadian model in Grant is absurdly complex: who can visualise a 3-branch balancing exercise? The third branch is the public interest in admission of the evidence. It would be better to think of the first two as being one “branch”, or arm of the balance, with a weight moving one way or the other along it according to the first two considerations.

In Grant the model was called a “decision tree”. Draw it for us. I had a go, but couldn’t say it would make comparison of cases easy.

Previous acquittals as propensity evidence

In Fenemor v R [2011] NZSC 127, the Supreme Court declined to establish a rule excluding, as propensity evidence, evidence of facts on which the defendant had previously been acquitted (“acquittal evidence”). The Court held that in each case admissibility of acquittal evidence will depend on its qualifying under s 40(1) of the Evidence Act 2006 as propensity evidence and then on its surviving the weighing of probative value against risk of unfair prejudice required by s 43.

The Court declined to give examples of when unfairness might make such evidence inadmissible, beyond that mentioned in Degnan [2000] NZCA 321, [2001] 1 NZLR 280 (CA) of an alibi having been the basis for the earlier acquittal. It was preferable that the case law should develop over time as questions of unfairness are very case-specific.

A challenge addressed to the acquittal dimension of the propensity evidence must demonstrate a logical connection between the acquittal and the claimed unfairness.In Fenemor it was argued unsuccessfully that the defendant would have to give evidence if the evidence was ruled admissible and that this was unfair. The Court, upholding the reasoning of the Court of Appeal, held that he would be in the same position if the evidence had led to a conviction, or if no earlier charge had been brought, so there was no logical connection between the acquittal and the claimed unfairness. Similar reasoning applied to a submission that the prior acquittal evidence would lead the jury to reason wrongly. Nor was it correct to argue that it would be unfair to adduce the similar facts that the previous jury had rejected, because that jury had only seen “one frame of what was now known to be a bigger picture” [22].

Assessment of the probative value of the evidence in relation to the present charge is different from assessing its value as proof of the earlier charge, and a priori there is no basis for a general conclusion that acquittal evidence has different probative value from propensity evidence that has not led to any charge [23].