The strength of vagueness

Two vague but fundamental concepts

The first vague concept: abuse of process

Complicity by Australian officials in the unlawful deportation of the defendant (appellant) to Australia led to subsequent criminal proceedings against the defendant in Australia being stayed as an abuse of process in Moti v R [2011] HCA 50 (7 December 2011).

Abuse of process is open-ended, not to be confined to rigid categories of official misconduct (60):

” … the forms of expression adopted in the decided cases must be understood in the context of the particular facts of each case. None should be read as attempting to chart the boundaries of abuse of process. None should be read as attempting to define exhaustively the circumstances of removal of an accused to this country that warrant exercise of the power to stay criminal proceedings against that person or as giving some exhaustive dictionary of words by one or more of which executive action must be described before proceedings should be stayed. None should be read as confining attention to whether any act of an Australian Government official constituted participation in criminal wrongdoing, whether as an aider and abettor or as someone knowingly concerned in the wrongdoing. And the use of words like “connivance”, “collusion” and “participation” should not be permitted to confine attention in that way. All should be understood as proceeding from recognition of the basic proposition that the end of criminal prosecution does not justify the adoption of any and every means for securing the presence of the accused. And in this case, as in others, the focus of attention must fall upon what Australian officials did or did not do.”

Recognition of abuse of process is a response to the policy of even-handed justice and the maintenance of public confidence in judicial process.

“57. … two fundamental policy considerations affect abuse of process in criminal proceedings. First, “the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike” [Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 520]. Second, “unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice” [[1992] HCA 34; (1992) 174 CLR 509 at 520]. Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes. The concept of abuse of process extends to a use of the courts’ processes in a way that is inconsistent with those fundamental requirements.”

Here the official misconduct was in summary (63):

“…First, Australian officials (both in Honiara and in Canberra) knew that the senior representative of Australia in Honiara at the time (the Acting High Commissioner) was of opinion that the appellant’s deportation was not lawful. Second, the Acting High Commissioner’s opinion was obviously right. Third, despite the expression of this opinion, and its obviously being right, Australian officials facilitated the unlawful deportation of the appellant by supplying a travel document relating to him (and travel documents for those who would accompany him) at a time when it was known that the documents would be used to effect the unlawful deportation. That is, Australian officials supplied the relevant documents in time to be used, with knowledge that they would be used, to deport the appellant before the time for deporting him had arrived.”

The majority, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, held that proceedings on the indictment should be permanently stayed.

Heydon J delivered an interesting dissent, focused on difficulties arising from the vague concepts concerning abuse of process and its lack of definition. Among the points he makes is the availability of alternative, disciplinary, responses to official misconduct instead of giving a person who may be guilty of serious offending immunity from conviction.

There are also some observations in this case on payment of prosecution witnesses, which was another ground of this appeal but which did not need to be considered in detail as no impropriety in that regard was held, unanimously, to have occurred.

The second vague concept: miscarriage of justice

In Handlen v R; Paddison v R [2011] HCA 51 (8 December 2011) the High Court held that the proviso could not be applied where a trial had proceeded on a mistaken appreciation of how participation in the offending could be proved. The requirements for secondary liability, namely that each appellant had intentionally aided, abetted, incited, counselled or procured the commission of the offence, should have been applied. (An alternative form of secondary liability was not relevant in this case.) But the trial proceeded wrongly on the basis that proof of membership of a joint criminal enterprise would be sufficient if commission of the relevant offence was part of that enterprise. The error is that not every member of such an enterprise is necessarily a party to every offence committed by members of the enterprise. This was overlooked by all counsel and by the trial judge. The Court of Appeal of the Supreme Court of Queensland had recognised the error but had applied the proviso because it was satisfied that the appellants were guilty, and there had not been a departure from the fundamental requirement of a trial according to law.

“47. As this Court explained in Weiss v The Queen, there is no single universally applicable description of what constitutes a “substantial miscarriage of justice” [[2005] HCA 81; (2005) 224 CLR 300 at 317]. The appellants were convicted of serious criminal offences … following a trial at which the prosecution case was conducted, and left to the jury, on a basis for which the law did not provide. The conduct of the trial on this basis conferred an evidentiary advantage on the prosecution, leading to the admission of evidence to prove the existence and scope of the group exercise. Ultimately, the issue posed for the jury was whether the prosecution had proved that the appellants were parties to the group exercise when this was irrelevant to proof of their complicity in Reed’s offences. The verdicts on the importation counts reflect the jury’s satisfaction that each appellant was a party to the group exercise but it does not follow that the jury must have been satisfied of the facts necessary to establish the appellants’ guilt of the importation offences in the only way for which the law allowed. It was not open to the Court of Appeal to apply the proviso in the circumstances of these appeals.”

The majority ordered a new trial, Heydon J dissented and would have dismissed the appeals. He analysed the evidence and found guilt proved regardless of how the trial had been conducted. He did not see the defects as fundamental. For the majority, regardless of the strength of the evidence the trial had been such a departure from what was in accordance with the law that, in effect, the right to a fair trial was the dominant consideration.

Vague concepts can still be useful in the law. Reasonableness, fairness, interests of justice, the public interest, the weighing of values underlying rights, do not need to be defined as if they were mathematical concepts. Numbers too, when used in measurements, involve margins of error and require probabilistic reasoning. These areas of vagueness are opportunities for the exercise of judgment. Complaints about vagueness are like the formalists’ complaints about pragmatism.

An unruly heckler at the back of the room might cry out that Heydon J had, in the first of these appeals, been too much the formalist, while in the second he had been too much the pragmatist.

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