No substitute for money

The Privy Council in Hamilton v R (Jamaica) [2012] UKPC 31 (16 August 2012) gives a useful little reminder on how a court will exercise its discretion to grant an extension of time for filing an appeal.

The judgment is worth reading for its reference to difficulties in getting legal representation when legal aid is either unavailable or highly restricted, particularly in Caribbean states.

The exercise of the discretion to grant an extension of time is described here:

“The circumstances that contribute to the problem of delay in the case of criminal appeals that come before the Board from the Caribbean are exceptional, for all the reasons that have been outlined above. But the question for the Board is no different. In these cases, too, the overriding consideration will be whether it is in the interests of justice that the time limit should be extended. Weight will always be given to the merits of the appeal and to the severity of the sentence. The stronger the case appears to be that the appellant may have suffered a serious miscarriage of justice, the less likely it will be that the application will be rejected on the ground that it is out of time. The Board will also be sympathetic to the problems faced by death sentence prisoners, and those in non-capital cases who have been sentenced to very long periods of imprisonment, who have to rely on the services of those who provide legal services pro bono. Those who provide such services free of charge have other demands on their time. So, while they will be expected to progress their cases as quickly as possible, it would be unreasonable to expect them to adhere to the same exacting standards as are expected of those who provide professional services for remuneration.”

There are potentially insoluble problems for people serving sentences that are not particularly long and which may well be completely served by the time legal assistance for an appeal against conviction and sentence is obtained. The administrators of legal aid services may be reluctant to grant aid if a sentence is not long. Lawyers may be reluctant to accept instructions on legal aid if remuneration is low, particularly as the risk of being accused of negligence or worse is ever-present. There is no substitute for money when it comes to making the legal system work.

Morality and the scope of criminal liability

Manslaughter by dangerous act, or by an omission to perform a legal duty, was considered by the High Court of Australia in Burns v The Queen [2012] HCA 35 (14 September 2012). The death occurred after consumption of methadone, and the defendant (appellant) could have been liable for supplying the drug, for administering the drug, or for failing to render assistance to the victim in circumstances which gave rise to a duty of care. It was not possible to say why the jury had convicted the defendant. In the High Court the Crown conceded that the defendant could not be liable on the basis of supply of the drug. The Court unanimously held there was no basis in the facts for conviction for breach of a duty of care, and the majority (Heydon J dissenting) held that the facts did not exclude the possibility that the victim administered the drug to himself. The conviction was quashed and an acquittal entered.

The case is of interest for its illustration of the difference between moral and legal duties. While most people might think that a person who supplied an unlawful and dangerous drug to another owed a duty of care to that person to do what was reasonable in the interests of safety, there are difficulties in establishing a legal duty to do the same.

French CJ referred [22] to the “taxonomy” of the duties of care that may support a charge of manslaughter in cases like this: where a statute imposes a duty, where the duty arises from a certain status relationship, where the duty arises from contract, and where one person voluntarily assumes the care of another, secluding that other and preventing third persons from rendering aid. There may also be a duty of care where the defendant has caused a sequence of events which gave rise to a risk of injury.

Here there was [46] no statutory duty, no status relationship, no contract. On the facts the defendant had not assumed responsibility for care of the victim and had not secluded him so as to prevent others rendering assistance. As to creating a causative sequence of events giving rise to risk of injury, on the facts it was possible that the victim had injected himself with the drug [47] and he may even have rebuffed a suggestion that an ambulance should be called [48].

The joint judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ pointed [106] to difficulties with the proposition that those who unlawfully supply dangerous drugs have a duty to people they supply. What would discharge the duty of care? Supplying clean needles and syringes? Supplying information about levels of safe use? Ordinarily the supplier will have no control over how the recipient uses the drug. Is the duty (as was accepted in the appeal court below) confined to use of the drug in the supplier’s presence? This, said the joint judgment, looks like imposing a duty because “it is an affront to morality that the supplier of a prohibited drug should not bear responsibility for the callous disregard for the life of the drug user.” The absence of control counted against the imposition of a duty of care, and [107]

“… courts must be circumspect in identifying categories of relations that give rise to a previously unrecognised legal obligation to act [footnote: See, eg, R v Sinclair, Johnson and Smith unreported, England and Wales Court of Appeal (Criminal Division), 21 August 1998; B Hogan, “Omissions and the duty myth”, in Smith (ed), Criminal Law: Essays in Honour of J C Smith, (1987) 85 at 87].”

So it was a matter for the legislature, not the courts, to develop the law on the liability of drug suppliers for harm to users ([108], Heydon J agreeing at [131]).

I should add that there is a useful discussion of liability for omissions by Andrew Ashworth QC, “Public Duties and Criminal Omissions: Some Unresolved Questions“, available at the Association of Commonwealth Criminal Lawyers website. For legislative developments in New Zealand, see Crimes Act 1961, s 150A and the sections referred to therein.

Another decision of the High Court of Australia touching on the scope of criminal responsibility was delivered the same day: Likiardopoulos v The Queen [2012] HCA 37 (14 September 2012). It is noteworthy for these points:

  • French CJ was careful to distance himself from any (obiter) suggestion that the decision to prosecute is never reviewable.
  • A person can be a secondary party to a greater offence even though the principal offender was convicted of a lesser offence. A lesser conviction does not of itself provide a shield for another person. If the prosecution can show that the principal did commit the greater offence, the defendant could be a party to that. The principal is not in jeopardy of conviction for the greater offence.
  • The charging of the defendant as a secondary party to the commission of a more serious offence than that for which the principal was convicted does not of itself give rise to abuse of process or unfairness, especially where, as here, when the plea to the lesser offence was accepted there was insufficient evidence to charge the principal with the greater offence. The moral culpability of the secondary offender was, here, greater than that of the principal(s) in view of his being much older [joint judgment, 39].
  • A revision of the law of complicity could result in too great a change – retrospective and adverse to the interests of defendants – for the courts to introduce and should be left to the legislature (Heydon J agreeing, [43]). The limit of secondary liability is set by the offence actually committed.

This last point was a response to the prosecution submission that liability of all secondary parties should be determined by their mens rea. That would mean that if the secondary party had the mens rea for murder, but murder could not be proved against the principal, the secondary party would be guilty of murder. The difference from this case is that the prosecution would not need to establish mens rea on the part of the principal offender. That would mean that even if the evidence was no stronger than it had been against the principal party when the plea to the lesser charge was accepted, the secondary party could still be convicted of murder. Should the secondary offender benefit from a fortuitous lack of evidence in relation to the principal offender, or should the same requirements of actus reus and mens rea apply to both principals and secondary parties? To what extent should the maxim actus non facit reum nisi mens sit rea apply – should the secondary party’s guilty mind make the principal’s act guilty in relation to the secondary party? Currently the law says there is only an actus reus if the principal has mens rea.

Judge-alone trials and reasons for verdicts

Today the High Court of Australia has held inadequate the reasons given at a judge alone trial for convicting the defendant (appellant): Douglass v The Queen [2012] HCA 34 (11 September 2012). Further, the High Court quashed the conviction and did not order a retrial. That was because the evidence was insufficient to prove the defendant’s guilt beyond reasonable doubt.


It is a fundamental mistake to say that where a criminal case involves an accuser and a defendant who denies the accusation, it is a case of one person’s word against another’s. It is, instead and as usual, a case of whether the evidence is sufficient to prove guilt beyond reasonable doubt. If, as here, a judge says he prefers the complainant’s evidence, that is not the same as saying he finds the complainant’s evidence sufficient to prove guilt beyond reasonable doubt.

Reasons given by a judge for convicting a defendant must be sufficient to show an appellate court that the judge has correctly applied the law: R v Keyte [2000] SASC 382. For the same point over here, see Connell v Auckland City Council [1977] 1 NZLR 630, Chilwell J, R v McPherson [1982] 1 NZLR 650 (CA) per Somers J at 652, and R v Atkinson [1984] 2 NZLR 381 (CA) judgment of the Court delivered by Hardie Boys J at 383, emphasising the need to demonstrate that the judge has applied the correct standard of proof.

In Douglass there were some difficulties with the complainant’s evidence: she initially denied that the offending had occurred, she was inconsistent as to the location at which it had occurred, and her accusations were obtained by leading questions. The judge had not explained why, despite these difficulties, he had found her evidence to be truthful and reliable. He did specify two reasons for accepting her evidence, but the High Court criticised these: he thought she was unlikely to have made up the accusations, but the High Court pointed out that she had described similar behaviour by another man so invention was not as unlikely as the judge had thought, and her firmness in cross-examination indicated truthfulness, but the High Court did not think that this necessarily followed.

The defendant had given evidence and had called a supporting witness, but the judge did not give reasons for rejecting that. The judge should have explained why the defence evidence did not raise a reasonable doubt.

There is a bit of obscurity in the High Court’s judgment (only one judgment in this case – Heydon J not being on this bench) over truthfulness and reliability. This was not the sort of case where the complainant could have been mistaken over the identity of the alleged offender, or mistaken over the alleged acts. The Court used the term reliability to mean sufficient to prove the charge. The trial judge may have used the description of the complainant’s evidence as “credible and reliable” as a way of saying it was truthful, but the High Court said [15] that accepting the evidence as true was not the same as accepting it as sufficient to prove the charge. On the facts of this case it is difficult to see why not. My impression is that the Court was really saying that the difficulties with the complainant’s evidence meant that it lacked the necessary probative value to establish guilt beyond reasonable doubt.

The High Court took a provision in the relevant evidence legislation, to the effect that a warning is not required about the special need for caution in relation to the evidence of a child complainant, as an indication that child witnesses are not to be regarded as a special class of witness, and it rejected [44] a submission that it was appropriate to consider published research on the reliability of child complainants. This was because here the issue was the sufficiency of the complainant’s evidence. But in view of the obscurity I mentioned above, it is not clear why the reliability of the complainant’s evidence should not be assessed in the context of specialist research on factors affecting or not affecting the reliability of child witnesses. The issue was, after all, the reliability of the complainant “as an historian” [47].