When judges get nasty

It’s good to see the Chief Justice taking an interest in judicial bullying of counsel.

I imagine there have been judicial bullies as long as there have been courts. Bullies can usually be quite nice people, but under pressure the character flaw is revealed.

My own method for dealing with bullying judges is rather unsubtle, as this exampleillustrates.

I am pleased to report the whole thing was settled amicably, the judge saying that we both seemed to be having a bad day at the office.


Rights, freedoms, and elderly children

In today’s decision Attorney-General v Smith [2018] NZCA 24 the Court of Appeal observed at [47] that

“… any rights analysis must begin with the presumption that Mr Smith [a sentenced prisoner] has the common law right to wear a wig if he wishes, simply because it is not illegal to do so.”

Sometimes cases are brought on grounds which obscure basic issues. There can be few points more basic in this context than the rights of people to do things that are not unlawful. Instead of relying on that right, it seems that this case was brought alleging a breach of the New Zealand Bill of Rights Act 1990, s 14. Arguments therefore were diverted to the issues whether wig-wearing is an “expression” within the terms of that section.

The High Court had held that it is, but the Court of Appeal overruled that. In that sense, Mr Smith lost the appeal. But it is wrong to say, as our news media are currently saying, that “Murderer loses legal right to wear wig in prison”, and “Wig-wearing murderer Phillip John Smith has no rights to hairpiece, court rules”.

Indeed, as things are between the parties, the dispute is settled and the issue is moot, and the Court of Appeal only issued a judgment because the issue of the engagement of s 14 “raises an important question with potential application in other cases” (at [26]).

You may wonder, as I do, why Mr Smith should want to wear a wig, given that mature men with full heads of hair look like elderly children.

Are principles always helpful?

The New Zealand Law Commission has published its Review of the Search and Surveillance Act 2012 (the SSA): NZLC R 141 (dated June 2017, but published on 30 January 2018).

With the aim of assisting officials who are conducting searches, the Commission recommends the enactment of principles. It acknowledges that the final wording of these principles may need revision. We can reasonably ask whether, in their present form, they will be of real use to those officials. Are these principles the product of armchair theorising, or will they usefully guide officers in law enforcement? Do all people have the same understanding of principles?

Here are the Commission’s proposed principles, with questions that I suggest may properly be asked.

Principle 1: conduct that may constitute an intrusion into the reasonable expectations of privacy of any individual should be carried out pursuant to a warrant, order, statutory power or policy statement;

From a constable’s point of view, what is a “reasonable” expectation of privacy, given that the constable is of the view that there are reasonable grounds to believe that evidence of an offence will be discovered? What are the discretionary considerations implied by “should”? What “statutory power” is relevant other than those in the SSA? Does this principle say any more than that the constable “should” obey the law?

Why not introduce a definition of “search”, and a provision stating that searches carried out otherwise than pursuant to the provisions of the SSA are unlawful?

Principle 2: a warrant or order should be obtained in preference to exercising a warrantless power;

What is “in preference”? The constable’s personal preference? Again with the “should”. Why is this just a principle and not a requirement with explicit exceptional conditions permitting warrantless searches? Are the grounds for a warrant more stringent than the grounds for a warrantless search?

Principle 3: State intrusion into an individual’s privacy should be proportionate to the public interest in the investigation and prosecution of the offence or the maintenance of the law;

Seriously, is a constable really expected to carry out this proportionality evaluation? Is a constable ever going to decide that no, in this case enforcement of the law doesn’t matter? Is this more helpful than requiring searches to be carried out reasonably – which itself is hardly more useful to a constable than saying “don’t be silly”.

Principle 4: powers under the Act should be exercised in a manner that minimises the level of intrusion on the privacy of any individuals likely to be affected;

Yes, well intended, but how is a constable to decide, in the quest for evidence that is reasonably believed to exist, when an intrusion on privacy is unnecessary? Again, is this no more helpful that telling the officer not to overdo it?

Principle 5: powers under the Act should be exercised having regard to te ao Māori (the Māori dimension) and any other relevant cultural, spiritual or religious considerations;

But all people are equal. What does “have regard to” mean? Do cultural, spiritual or religious considerations have priority? Are all cultural, spiritual or religious considerations of equal importance? The Seiks’ kirpans are weapons, aren’t they? Are there to be dispensations?

Principle 6: powers under the Act should be exercised in a manner that minimises the impact on children and vulnerable members of the community;

Yes. Don’t be rude, don’t be rough, and don’t gratuitously cause stress. Or, be as nice as possible.

Principle 7: powers under the Act should be exercised in a manner that protects any privilege held by, or available to, any individual.

How is a constable to know when a person has a privilege, for example, against self-incrimination in respect of an offence which is not going to be charged? What does “protects” mean?

I hope not to encourage cynicism, but the words of Posner in Divergent Paths (see my note) at p 128 come to mind:

“The anxiety is that law really is not a rigorous field (which is true) but a field dominated by hunch and priors and rough balancing of competing considerations given only subjective weights, and by often inaccurate facts and lying or muddled witnesses and sly lawyers and confused or disingenuous judges.”

Divergent applications of principles can occur not only because people have different objectives, but also when they include interpretive concepts (in the sense used by Dworkin; see my review of Justice for Hedgehogs). We might all agree on what a “reasonable expectation of privacy” is, but we may differ on what is an example of it. Similarly with concepts of proportionality, minimal intrusion, relevant cultural, spiritual or religious considerations, vulnerable members of the community, and protection of privilege. Rather than being unifying, principles may foster divergent answers to the question of what conduct should be permitted. Dworkin’s theory suggests that in order to agree on instances of interpretive concepts people need to agree on ethics (how one should live) and morality (how one should treat others), and this requires recognition of the equal importance of all lives, and the need for people to take responsibility for their own lives. For present purposes the point is that a principle can require quite a lot of unpacking before its message in a particular case is revealed.

It is fair to ask whether application of any of the suggested principles could have influenced police conduct in, and the outcomes of, admissibility cases. Of those decided by the Court of Appeal under s 30 of the Evidence Act 2006 in 2017 (see my summary , at para [110], of these), there were only two where evidence obtained by improper search was inadmissible. In one a police dog bit the defendant on the arm during his apprehension and arrest, medical attention was required, and evidence found on the defendant but which was not central to the prosecution was inadmissible. In the other case, also involving the inadmissibility of evidence that was not central to the prosecution, a phone was searched during a detention that was unlawful and there was opportunity for the police to obtain a warrant. It is arguable that in this case a statutory principle could have affected police conduct, but so could proper administrative instructions given within the police organisation. There were two other cases which could be considered as searches because information was obtained from the defendant’s body: in one DNA evidence was excluded where there had been a breach of the statutory code of procedure in relation to DNA samples, and in the other the circumstances strongly suggested that the defendant had been badly beaten while being unlawfully detained in police custody and before medical evidence was obtained of his being under the influence of alcohol to the extent of being incapable of driving. It is doubtful that in either of those cases principles would have changed police behaviour.

Although hardly a statistically significant sample, at least it shows that in one year there was only one case of improper search where statutory principles might have affected police conduct to the extent that evidence would not have been ruled inadmissible. That was a warrant-preference case. Again, instructions given within the police service should be just as effective as a statutory principle.

Furthermore, a constable who gives evidence reciting statutory principles is likely to be believed in claiming that in the particular circumstances it was necessary, and not inconsistent with those principles, to act in the way that occurred. This could reduce the accuracy of fact-finding.

Posner gives us some holiday reading

It is impossible to have more fun than to spend a little time in the holidays reading Richard A Posner, Divergent Paths: The Academy and the Judiciary (Harvard University Press, Cambridge Mass., and London, 2016). Here is a snippet (p 13):

“Law schools will do almost anything to boost their ranking in U.S. News & World Report, which treats faculty-student ratio and number of library books as plus factors in the ranking, though they have little (library books virtually nothing) to do with the quality of legal education.”

And on the topic of judicial embrace of multifactor tests as aids to judicial decision making, which Judge Posner calls a common pretense of analytical rigour in adjudication, (p 117):

“Not only is the list of factors usually open-ended and therefore incomplete, but the factors are rarely given weights, and so unless all line up on one side of the dispute no decision can be derived from them; they are window dressing.”

And as a federal appellate judge, Posner has this to say about judicial disagreements (p 235):

“The problem of feuding federal judges would be solved in a trice if the Chief Justice summoned them to his office in Washington and told them to stop behaving like children.”

Well, I’m not trying to summarise what Posner says in this endlessly interesting book. We who are not Americans can easily see its relevance to our own legal environment.

Posner, who, to put it mildly, is one of the more intelligent judges, embraces Bayesian reasoning with conditional probabilities. A small glitch – surprising and ironic – occurs on pp 338-339 (if my Kindle’s pagination is correct) in his illustration of why lawyers need to be able to understand DNA evidence. But never mind.

I have, over the years of writing this blog, referred to Posner on several occasions. His fearless brilliance is an inspiration for jurists, and his enthusiasm brings both joy and outrage. And laughter.

Provoking thought – a new issue of NZCLR

You can, on reading a new issue of a law journal, be provoked into thought. Not always, but the latest New Zealand Criminal Law Review, [2017] NZCLR 152-313 (freely available at the New Zealand Criminal Bar Association website) is a positive example.

I have found myself wondering about the following things:

Ink molecules stuck in paper fibres, bits and bytes: is the medium the message?

Is an electronic file a document? Why shouldn’t it be? Should the word “document” in a statute be construed electronically or functionally? In Dixon v R [2015] NZSC 147 the Supreme Court took a functional approach. It seems significant to me that the Court applied s 6 of the Interpretation Act 1999, which simply provides: “An enactment applies to circumstances as they arise.” This is the “always speaking” quality of enactments, discussed from an Australian perspective in a case note on Aubrey v The Queen [2017] HCA 18, by Dan Meagher. It matters not that at the time legislation came into force there were no electronic documents, because the question is whether in the relevant statutory context and in the light of its purpose, the word “document” should include an electronic file. This is the functional approach. Whether an electronic file actually exists in a determinable location is irrelevant to a functional approach. If the file can be read, saved, shared, and in some cases edited or annotated, it functions as a document.

The habit that lawyers have of finding difficulties where there are none can impede the social utility of legislation. In seeking to give effect to legislative intent the courts will try to keep the law as simple as possible. There is a risk that scholarship in a new area of law will, in anticipating judicial decisions, needlessly divert attention to irrelevancies. I am not saying that it has here, just that it might have.

We can’t be wrong about ourselves (can we?)

Another thing I have been provoked into wondering about is the inherent jurisdiction of courts. If the highest court in a hierarchy rules that inherent jurisdiction on a particular point exists, then that must necessarily be correct, unless the court failed to notice legislation that expressly excluded such jurisdiction. Where the highest court considers relevant legislation and interprets it as being consistent with the existence of an independent inherent jurisdiction, then that is the law. What point is there in arguing that the court was wrong?

This arose in discussion of Marwood v Commissioner of Police [2016] NZSC 139. There, the Supreme Court held that in a civil action for forfeiture of criminal proceeds a court has an inherent jurisdiction to exclude improperly obtained evidence. Prior to that it had been conventionally thought that in a civil case there is no jurisdiction to exclude improperly obtained evidence except in extreme cases. Central to the issue was the implications of s 30 of the Evidence Act 2006, which provides for when improperly obtained evidence may be excluded in criminal cases. The critical words are “This section applies to a criminal proceeding”. Does that mean there is no exclusion in civil cases, or is s 30 just setting out the method for the decision in criminal proceedings and being silent as to civil proceedings? The Supreme Court effectively answered those questions in Marwood.

Arguments about whether there should continue to be the inherent jurisdiction recognised in Marwood should now be addressed to the legislature, not to the courts. They will be policy arguments, not fine-grained arguments about statutory interpretation. And they would probably end up by concluding that a total prohibition on exclusion of improperly obtained evidence in this sort of civil case would be wrong, but that a statutory framework for the decision process, analogous to s 30, might be appropriate. It may not be, because the inherent jurisdiction gives the courts flexibility to develop a process appropriate to the needs of cases as they arise.

Are good people better than ordinary people?

This issue of the journal includes a clear and comprehensive summary of an important case on when recklessness is a component of mens rea. There are suppression orders still in place, so I don’t give the citation. But I would be more confident than the author of the case note seems to be that the decision applies generally, wherever an offence is not of absolute or strict liability but where liability is not expressly limited to intent or belief. I would also wonder why the court needed to say that a person is not reckless if they are honestly doing their best to comply with the law. Just unreasonably taking a known risk is the conventional way of describing recklessness. Has the threshold for recklessness been raised by requiring people to do “their best” to comply with the law? Why is compliance with the law mentioned at all, when the traditional definition of recklessness simply asks whether the defendant’s action in taking the known risk was reasonable? Don’t ask. Is “doing one’s best” to comply with the law compatible with the taking of any risk of breaking the law? There is potential for jury confusion and requests for further explanations of the relationship between what it was reasonable for the defendant to have done and what a reasonable person doing their best to comply with the law would have done.

A good book about bad things

The journal includes book reviews, and I was pleased to favourably review Robert J Frater QC’s Prosecutorial Misconduct (2nd ed, Thomson Reuters, Toronto, 2017). Editing has its perils: why did the editors changed my correct reference in footnote 19 to the ONSC to make it an incorrect reference to the ONCJ?

Are obvious opinions irrelevant or just unhelpful?

A witness who gives the court an opinion may have no better information than that already available to the court, and may be in no better position to come to an opinion than the fact-finder.

In such a case the admissibility of the witness’s opinion is (in New Zealand) governed by ss 23 – 25 of the Evidence Act 2006. Evidence of an opinion is not admissible in a criminal case except pursuant to ss 24 and 25.

Section 24 provides:

A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived.

Where the fact-finder is in just as good a position as the witness to form an opinion, the s 24 requirement of necessity is not met. Section 24 does not, in such a case, allow the opinion to be given in evidence.

Sometimes a witness will have specialised knowledge, not available to the fact-finder, on which an opinion is based. Then the admissibility of the opinion will be governed by s 25. Subsection (1) provides:

An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.

The definitions of opinion, expert, and expert opinion in s 4 are explanatory and consistent with ordinary usage.

Merely satisfying the criteria in ss 23 or 24 does not render opinion evidence necessarily admissible, as it may be excluded by another provision of the Act, such as s 8 (prejudicial effect exceeding probative value).

In a recent decision, currently suppressed ([2017] NZCA 430), our Court of Appeal has held that another section that may apply to exclude opinion evidence that does not go further than the fact-finder can go without the witness’s opinion, is s 7. This is headed “Fundamental principle that all relevant evidence admissible”, and reads:

(1) All relevant evidence is admissible in a proceeding except evidence that is—

(a) inadmissible under this Act or any other Act; or

(b) excluded under this Act or any other Act.

(2) Evidence that is not relevant is not admissible in a proceeding.

(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

In effect, the Court of Appeal has read words into subsection (3), as if it read (adding the blue words):

(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything and is capable of assisting the fact-finder in determining anything that is of consequence to the determination of the proceeding.

The Court drew that from dicta requiring evidence to  be reasonably capable of supporting the fact in issue: Bain v R [2009] NZSC 16 at [40].

I do not think that it was necessary for the Court of Appeal to read words into s 7. An opinion, as defined, on a fact in issue will necessarily be relevant, unless it is equally consistent with proof, as with disproof, of the fact in issue. It will have a tendency to prove or disprove something of consequence to the determination of the proceeding, just as the fact-finder’s opinion will. The point is that, in the case that has given rise to this discussion, the witness’s opinion had no more probative value than the opinion that the fact-finder could come to independently. It was relevant, but inadmissible because it did not satisfy the requirements of ss 24 or 25: it was not “necessary” and it was not likely to give the fact-finder “substantial help”.

Beyond reasonable doubt

We may agree on what something is, even if we disagree on how it should be described. We may both be looking at a circle; you may describe it as having a circumference of a particular length, while I may describe it as having a radius of a particular length.

Do we have to agree on how to describe what “reasonable doubt” means? Does it have a utilitarian or a pragmatic function; is it a quality like “good” (remembering GE Moore’s difficulty in defining “good”). Does it have a function at all, or is it just a feeling?

Is it describable in terms of knowledge? To ask “what do I know” is to summon the ideas of knowledge and belief. What are the conditions that I require to be satisfied before I am prepared to say I believe something? Do I rely on experience, feeling, logic, or persuasive rhetoric? Do I have to use the same criteria for belief as you use?

Often juries will ask judges for a definition of “beyond reasonable doubt”. While courts may differ in their responses, do their differences conceal an agreement?

I have previously discussed the leading New Zealand case on this: R v Wanhalla [2006] NZCA 229; [2007] 2 NZLR 573. Now the High Court of Australia has considered the same issue: The Queen v Dookheea [2017] HCA 36 (13 September 2017).

The HCA prefers that explanations of what proof beyond reasonable doubt means should not be attempted, and in particular a contrast with proof beyond any doubt should be avoided. It is, however, acceptable and even useful to contrast the high criminal standard of proof beyond reasonable doubt with the lower civil standard of proof on the balance of probabilities. “[A] reasonable doubt is a doubt which the jury as a reasonable jury considers to be reasonable (albeit, of course, that different jurors might have different reasons for their own reasonable doubt)” (at [34]), and ([35]):

“… it is the votes of each of the individual members of the jury that are determinative of the verdict of the jury as a whole. Each juror is appointed to consider the evidence and to decide whether it satisfies him or her of guilt beyond reasonable doubt; and, in order to discharge that function, each individual member of the jury must in effect enquire of himself or herself whether he or she entertains a reasonable doubt. In practical reality, each individual juror may at some point in the course of the juror’s consideration of an issue have a doubt which, upon reflection and evaluation, he or she is disposed to discard as an unreasonable doubt.”

Clumsily put, if one objects to unnecessary gender pronouns, but there you are.

In New Zealand, explanations of beyond reasonable doubt may be attempted: acceptable is, “an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.” But this is not mandatory, and it “is sufficient to make it clear that the concept [of proof beyond reasonable doubt] involves a high standard of proof which is discharged only if the jury is sure or feels sure of guilt.” Focusing on doubt may be misleading, because a doubt need not be articulable and what is required is proof to the required standard. It is acceptable to tell a jury that proof to a certainty is not required. But it is wrong to tell a jury that they need to be as sure of guilt as they would be about an important decision in their own lives.

Don’t ask for more: lawyers are not philosophers. The law does, however, cherry-pick the philosophies it wants.

Utilitarianism asks, what is in the best interests of society? Individual interests are subordinate to society’s interests, individual rights are minimised, and as far as crime is concerned, a deterrent policy is pursued to protect the peace of the community. On the topic of the criminal standard of proof, a utilitarian would acknowledge that it must be higher than the civil standard, but not all that much higher.

A pragmatist would ask, what works? The ends justify the means. Pragmatism may strive for a workable balance between utilitarianism and morality. While absolute proof of a criminal charge is not required, pragmatism justifies a high, but not too high, standard of proof.

A moral view (and here I  acknowledge that these are all moral theories, but I just say “moral” here to avoid having to say deontological) is that it is better to let (insert your preferred value) guilty people go free than to convict one innocent person. It reflects a judgement about what is right or good in the context of a criminal trial, and it favours a very high standard of proof.

These themes are found in the various approaches to instructions on the standard of proof. To say that the standard is higher than the civil standard is to make a utilitarian point. It doesn’t get very far by way of explanation, but it is a start. To add that the fact-finder must “be sure” on a “reasonable” assessment of the evidence, is a pragmatic theme, taking the explanation beyond the utilitarian but not pushing it as far as morality would claim it should be taken. Also pragmatic is the illustration of taking the care one would take over an important decision in one’s own life. To say that proof to a mathematical certainty is not required but the standard is nevertheless very high, is to emphasise the moral theme.

Another area of the law in which these three themes are illustrated is the part of the law of evidence which concerns the decision whether to exclude improperly obtained evidence. A balancing model is widely used for this (and in New Zealand is enacted in s 30 of the Evidence Act 2006). Factors favouring admission of improperly obtained evidence are utilitarian: society is best served if people charged with offences have trials on all the available evidence. Exclusion factors are moral, reflecting the idea that those who enforce the law should obey the law. The balance between these factors is struck pragmatically: what is required for an effective and credible system of justice?

You can’t really be surprised when a jury wants assistance with the concept of proof beyond reasonable doubt. Nor at the reluctance of judges to get into the extent to which deontological ethics may be modified by pragmatism. It should be reassuring, however, to remember that philosophy is just simple ideas dressed up in hard words, in contrast to law which is hard ideas dressed up in simple words.