Fresh evidence

Fresh evidence was a central topic in two decisions delivered within hours on opposite sides of the planet yesterday.

In refusing leave to appeal against sentence, the New Zealand Supreme Court addressed a submission that the applicant’s cooperation with the authorities was a new fact relevant to penalty: Bland v R [2013] NZSC 93 (7 October 2013). The fact could have been used in submissions to the Court of Appeal, but was not, but after that appeal Mr Bland did give assistance to the authorities. He then asked the Court of Appeal to recall its dismissal of his sentence appeal so that this new fact could be considered. The Court of Appeal dismissed that application.

The Supreme Court said [6(a)]: “This Court does not usually entertain criminal appeals on grounds that, although available, were not raised before the Court of Appeal“, citing Mankelow v R [2007] NZSC 57 at [2].

These Supreme Court decisions are dismissals of applications for leave to appeal and are not required to be given in detail: “The reasons may be stated briefly, and may be stated in general terms only“: s 16(2) Supreme Court Act 2003.

The risk with these brief reasons is that they may be cited as if they were precedents, as with Mankelow, so that matters of policy are wrongly treated as legal rules. And legal rules may be stated inaccurately, in the effort to be brief, and this creates a risk of misapplication of the law in subsequent cases. This is illustrated in Bland at [6(b)], where the Court diminished the value of Mr Bland’s assistance to the authorities, on the basis that it was “self-serving rather than motivated by a genuine desire to cooperate“.

Motive for the giving of assistance has never been relevant. Motives for mitigating actions seldom are: for example, credit for early guilty pleas is given without asking whether they were motivated by remorse, and remorse has its own status as an independent mitigating factor: s 9(2)(f) of the Sentencing Act 2002. In R v Stark [2006] NZCA 190 the Court said at [10]:

” … It is necessary to weigh the assistance given with the type and seriousness of the offending, the sentence that otherwise would be appropriate, the nature and value of the assistance, the situations in which it is given and the consequences. In the end the sentence must be that which is appropriate in light of all of the circumstances including any assistance to the authorities.”

There is no mention of the motivation for the assistance in those considerations. Assistance has its own weight, and remorse may be an additional circumstance but its absence should not disentitle an offender from advancing assistance as a mitigating factor.

Still, the Court’s real reason for refusing leave seems to be that Mr Bland’s assistance to the authorities was of no particular consequence in the prosecution of co-offenders [6(c)]. Any appropriate sentence reduction would have been minimal and the sentence that was imposed was not outside the range of sentences available to the judge. There was not, therefore, a “substantial miscarriage of justice”, which is one of the ways a case may come within the qualifying requirement that it should be in “the interests of justice” for the appeal to be heard: Supreme Court Act, s 13(2)(b). The phrase “substantial miscarriage of justice” is not defined.

Several hours later, in London, the Privy Council in Lundy v The Queen (New Zealand) [2013] UKPC 28 (7 October 2013) ordered a retrial because new evidence suggested that the appellant’s convictions were unsafe [151], [164].

It is inappropriate for me to say much about this case, pending a retrial. However of legal interest is the Board’s clarification of the requirements for the allowing of appeals against convictions on the basis of fresh evidence. There are three tests, to be applied in sequence [120]:

“The Board considers that the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.”

Here, “a risk of a miscarriage of justice” refers to the safety of the conviction.

Lundy was an appeal under what we can now call the old law. Now, the criteria for allowing an appeal against conviction are enacted in the Criminal Procedure Act 2011 (“CPA”), s 232. They do not specifically refer to fresh evidence. Cases of fresh evidence must therefore come within the phrase “miscarriage of justice”, which is defined in subsection (4) as:

“… miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a) has created a real risk that the outcome of the trial was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity.”

The obtaining of new evidence can hardly be called an error or irregularity, but it may be “an occurrence … affecting the trial”. It might, also at a pinch, be put within the meaning of “an unfair trial” in the sense that the trial that happened involved assessments of the weight of items of evidence that have since been shown to have been inappropriate. The trial, although it seemed to have been fair when it was conducted, is now shown to have been unfair.

These ways of including cases of fresh evidence within the grounds for allowing appeals against conviction are a bit forced, and one might say that it was a legislative oversight to omit specific reference to fresh evidence in s 232. Certainly, the CPA does permit an appellate court to hear evidence (ss 334 and 335), and the Criminal Procedure Rules 2012 make provision for adducing fresh evidence: r 8.8, in terms which make it clear that miscarriage of justice encompasses fresh evidence.

The Board did not say that the trial had been unfair. It was not considering s 232, and Lundy should not be applied as if it were authoritative on the meaning of that section, but it would not be inconsistent to say that the better interpretation is that fresh evidence is an occurrence in relation to the trial.

But there is good reason to conclude that a substantively fair trial is one where the evidence is weighed properly, and that retrospective appreciation of unfairness in the light of fresh evidence is grounds under s 232 for allowing an appeal against conviction.

There are two more interesting aspects of Lundy that I can mention.

First, the Privy Council seized jurisdiction – without creating a precedent – just in the interests of being sensible [11]. Strictly, it is a breach of the rule of law for a court to do something and say it is not creating a precedent: compare John Gardner, Law as a Leap of Faith (OUP, Oxford, 2012) at 210 (reviewed by me here on 6 July 2013).

Secondly, the Board ordered a retrial rather than remit the case to the Court of Appeal. There is nothing particularly unusual in doing that, but the difficulties that have been experienced when appeal judges attempt to reach verdicts perhaps suggest that the Board considers that the approach recently favoured – under what is now the old law – by the New Zealand Supreme Court in Matenga v R [2009] NZSC 18, discussed here on 9 July 2009, is inappropriate. It is likely that under the new law (s 232) – see the digression by me on 19 August 2013 – the Matenga approach will not apply. Unfortunately however, the Board endorsed what it took to be the Matenga approach: [143]-[151].

On this topic the Board appears to be glossing over difficulties. How does an appeal court decide whether a conviction is safe? Does it (1) decide for itself whether there is a reasonable doubt about the appellant’s guilt? Does it (2) decide what a jury would have concluded had the error at trial not occurred? Does it (3) do a bit of each – deciding for itself until it gets stuck, in which event asks what a jury would have done? These have all been tried at various times. Delivering the judgment of the Board, Lord Kerr endorsed [146] his own judgment, dissenting on the facts, in Taylor v R [2013] UKPC 8 (discussed here on 19 March 2013) taking the third (called the Pendleton) approach, but which was put by the majority in Taylor [20] as one of asking whether the jury might reasonably have come to a different conclusion as to whether the appellant was guilty; this, confusingly, looks like the second approach.

My own view is that this is rather silly. The focus in these sorts of appeals should always have been on whether the error at trial could have significantly affected the weight given to contested evidence on an issue central to the logic of the prosecution case. Under the new law, s 232(4)(a) is consistent with this, using the phrase “a real risk that the outcome of the trial was affected”. Unfortunately, it is arguable that this phrase is also consistent with the other approaches, and it would be sad – so sad – if Lundy were taken to be an endorsement of the survival of Matenga in the new statutory environment.

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