Saturday, April 02, 2016

Extended common purpose - correcting the common law on secondary liability

Well, interweb, if I’m going to do a post this year I had better get on with it.

Extended secondary liability has received attention on this site before, on Dec 22, 2011, and Dec 18, 2006.

The Privy Council, in a judgment delivered jointly with the Supreme Court of the United Kingdom, has corrected a long-standing (30 years) error in the law of this form of liability: R v Jogee [2016] UKSC 8 (18 February 2016).

The change, reverting to what had been the correct position, is that a secondary party must always intend that the offence be committed. The error had happened when the Privy Council gave judgment in Chan Wing-Siu [1985] AC 168. The Board had held that under the extended form of secondary liability intention is not required, but instead only foresight that commission of the offence is a probable consequence of the prosecution of an unlawful common purpose.

This is explained extremely clearly by Francis FitzGibbon in the London Review of Books, Vol 38, No 5, 3 March 2016.

Embarrassingly, the blame for all this is attributed to the then Sir Robin Cooke (later, Lord Cooke), who delivered the Board’s judgment in Chan Wing-Siu. If one is to place the blame in that way, one must assume that the other members of that Board were asleep: Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Brandon of Oakbrook, and Lord Templeman. None of them tugged at Sir Robin’s sleeve and said “hang on a minute mate” (or whatever the equivalent English expression was).

From where did Sir Robin get his misunderstanding of the common law? As a New Zealand judge he would have been familiar with our s 66(2) of the Crimes Act 1961, which is the provision for this form of liability. An early interpretation of the predecessor of this was that the secondary party had to intend the commission of the foreseen offence: apparently this is evident from a comment in R v Malcolm [1951] NZLR 470 (CA). However that was criticised in an influential textbook, Criminal Law and Practice in New Zealand (2nd ed FB Adams, 1971) at para 664, where it was said that “the whole point of s 66(2) [is] that something is done which may have gone beyond the common primary purpose.” Adams identifies the comment as being at p 485 line 33 of the report, but it seems to me to be at p 482 line 33.

So, contrary to Malcolm, s 66(2) has subsequently (at least) been understood to mean that the secondary participant need not intend the commission of the offence, but that only foresight of it as a probable consequence of pursuit of the common purpose is required.

Regardless of why the mistake may have been made and why it had gone unnoticed for decades, the common law is now that intention is required. Foresight of a risk is evidence of intention, not a substitute for it. Can a provision like s 66(2) be interpreted consistently with that? I think it can. A “common intention to prosecute any unlawful purpose, and to assist each other therein” refers to a range of intended offences. Otherwise, the subsection would have said “common intention to commit an offence”. The phrase “known to be a probable consequence of the prosecution of the common purpose” functions to keep liability within the bounds of what was intended.

[Update: The Supreme Court has declined to modify the interpretation of s 66(2) to bring it into line with Jogee: Uhrle v R [2016] NZSC 64 (13 June 2016).]

Friday, December 18, 2015

Decision models for the stay of criminal proceedings

Legal terminology at common law can change over time.

For example, exclusion of improperly obtained evidence is decided by what used to be called a discretion, but which is now called an application of judgement as a matter of law. The difference between exercises of judgement and exercises of discretions is not always easy to see. Bail decisions are currently called discretionary, but who knows whether they might come to be called exercises of judgement?

The only practical difference is in how they are approached on appeal. This difference has arisen because, during the latter part of the twentieth century, the common law developed powers of review, applicable to all decisions affecting people’s legal interests including decisions of judges in lower courts.

On review, the correctness of the method applied by the decision-maker is determined, and this involves looking to see whether certain kinds of errors occurred. These errors are: erroneous application of principle, wrongly taking into account irrelevant matters, not taking into account relevant matters, or being plainly wrong. If one or more of those errors occurred the review court will usually remit the issue back for determination in the correct way, and only occasionally will the review court be in a position to make the determination itself. The review court acknowledges the advantages that the decision-maker had in seeing and hearing witnesses, or in having special expertise in the relevant subject.

Review applies to discretionary decisions. What is usually called “general appeal” applies to exercises of judgement. On a general appeal the court will, if it finds that an error occurred, apply its own view of the appropriate outcome. There has to be a demonstrable error, and this is called the error principle. On general appeal the court can hear evidence if necessary, but usually the evidence taken in the court below is sufficient.

There will obviously be overlap between errors that qualify to come within the error principle and errors that qualify for purposes of review. Nevertheless, as the law currently is, the difference in the form of proceedings can lead to very different outcomes resulting from the same sort of errors. This makes the classification of a decision as either discretionary (review) or a matter of judgement (general appeal) rather important.

The point I am making from all this is that the common law can create distinctions which are difficult to apply and yet which have serious implications as to outcome.

The decision to exclude improperly obtained evidence (now a matter of judgement but it used to be a discretion) had developed at common law but is now, in New Zealand, governed by statute and therefore will be elaborated in case law. By “case law” I mean judicial interpretation of legislation, as opposed to common law which is entirely judge-made. There are other ways of using the term common law, but that is what I mean. The admissibility of improperly obtained evidence is determined by applying a relatively clear decision model. I mean that the model is clear, even if the result of its application in individual cases may not be easy to predict. This model is a balancing of factors favouring admission against factors favouring exclusion, the result being assessed in terms of the need for an effective and credible criminal justice system. This need could be imagined as a sort of scale to indicate the consequences of where the balance has come to rest.

That model, or method for making the decision, is conceptually clear, although only lawyers and judges and people who have made a study of the subject are likely to have sufficient knowledge of the case law to understand what the balancing factors are and how the scale distinguishes between admissible and inadmissible evidence by using precedent to establish markers for future reference.

But, significantly for what I will say below, the factors favouring admission of improperly obtained evidence are dominated by the seriousness of the alleged offending in the particular case. Therefore it is important to have a clear way of deciding what is a serious offence. At common law the criterion was that the starting point for sentencing would be in the region of four years’ imprisonment. Subsequent case law has followed that, but in 2011 some doubt was cast on that in the Supreme Court, arising from a different view expressed by at least one judge with probably some support from one other, although the decision of the Court does not seem to have been intended to make a change that would require overruling a large number of decided cases. That different view was that seriousness should be measured by the maximum penalty for an offence.

Over the last few years in New Zealand the courts have been particularly concerned with how to decide whether to stay criminal proceedings. One difficulty that seems to have been avoided is deciding whether a decision to stay is discretionary or a matter of judgement. It seems to be the latter, although before the difference in terminology emerged the cases may well have called it discretionary. But what is the model for making the decision?

There is no statutory guidance on this. It is purely a common law matter. In Wilson v R [2015] NZSC 189 (14 December 2015) the model devised in England was used. Unfortunately this law uses the term “discretion” in an historical sense from before the review powers developed to the extent that they have, so that discretion here means an exercise of judgement:

“[51] ... a judge considering a stay application was required to weigh the countervailing considerations of policy and justice and then to decide in the exercise of his or her discretion whether there has been an abuse of process ‘which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed.’” [footnotes omitted, here and in the extracts quoted below]

Blanch though we may at the “his or her”, it looks as though this reference to public conscience is to a scale, of the sort I mentioned above in relation to improperly obtained evidence. Countervailing considerations are weighed against this scale.

Important among the balancing factors:

“[54] ... the gravity of the alleged offence was a factor of ‘considerable weight’ for a court undertaking the balancing process to determine whether to stay proceedings on abuse of process grounds.”

And, of great interest in clearing up any confusion over how to assess the seriousness of the alleged offending, it is the starting point for sentencing, not the maximum penalty, that is relevant. This follows from, as it turns out, the majority’s resort to what was really the model applicable to the admissibility of improperly obtained evidence, and their description of the offending here as “moderately serious” [92(a)] although it included supply of LSD (maximum life imprisonment).

Unfortunately the model for deciding stays was significantly muddled by reliance on the following common law dictum:

“[54] ... ‘The central question for the court in all these cases is as to where the balance lies between the competing public interests in play: the public interests in identifying criminal responsibility and convicting and punishing the guilty on the one hand and the public interest in the rule of law and the integrity of the criminal justice system on the other. Which of these interests is to prevail?’”

The majority judgment in Wilson concluded on this:

“[60] ... when considering whether or not to grant a stay in a second category case [that is, one where the fairness of the trial is not in issue], the court will have to weigh the public interest in maintaining the integrity of the justice system against the public interest in having those accused of offending stand trial. In weighing those competing public interests, the court will have to consider the particular circumstances of the case. While not exhaustive, factors such as those listed in s 30(3) of the Evidence Act will be relevant, including whether there are any alternative remedies which will be sufficient to dissociate the justice system from the impugned conduct. In some instances, the misconduct by the state agency will be so grave that it will be largely determinative of the outcome, with the result that the balancing process will be attenuated. The court’s assessment must be conducted against the background that a stay in a second category case is an extreme remedy which will only be given in the clearest of cases.”

This has changed what should have been the scale into a balancing factor. Plainly the integrity of the criminal justice system should be an absolute requirement, not something that can be traded away in the interests of prosecuting serious crime.

Once that is accepted it follows that the model that should be used here is not the sort of balancing where two competing interests are measured against a scale, but instead it is a movement along a single scale of magnitude, going one way or the other and reaching a resting point on that scale. It is like a thermometer, not a balance. It isn’t really weighing anything, just measuring the intensity of the wrongful conduct of officials and seeing if that reaches a point where the integrity of the criminal justice system is compromised.

I think the Chief Justice was right (dissenting on whether a stay should have been ordered but agreeing in the result of the appeal), to emphasise, uncontroversially,

“[121] ... the critical question is not the strength of the prosecution evidence or the weakness of the defence, but the effect of the defect on the legitimacy of the trial.
...
“[123] ... the critical issue ... was whether the trial could be legitimate given the serious irregularity.”

However she did not distance herself to any marked extent from describing the decision model as one of balancing, and instead retreated from clarity by adopting a rather flaccid dictum:

“[133] ... general guidance on how the jurisdiction is to be exercised is not useful when ‘an infinite variety of cases could arise’.”

Decision models are designed to deal with an infinite variety of cases. Overall the issue of whether a stay should have been ordered in this case, which seems to conclude the Antonievic saga, came down to a vote count, without much clarity being given for future guidance. The majority’s application of the law to the appeal is really a retreat to the issue whether exclusion of the evidence was appropriate (using the conventional balancing exercise applicable to that decision) and then a recognition that the impropriety here did not go beyond what could appropriately be remedied by exclusion of some of the evidence.

So, to return to my theme of how the common law terminology and methods can change over time, a decision to stay criminal proceedings is no longer appropriately described as discretionary, but is a matter of judgement. On appeal the court will come to its own view of what should have been done. The decision model is currently that of weighing, but, I suggest, it should ultimately develop into a measure of the intensity of wrongdoing by officials to determine whether it affects the integrity of the criminal justice system. It is a different model from that applicable to improperly obtained evidence, and it should only apply if exclusion of tainted evidence is inadequate to protect the integrity of the criminal justice system. Where the wrongdoing colours the obtaining of evidence, the first decision will be the balancing required to determine the admissibility of that evidence, and then, if the wrongdoing was particularly bad it should be assessed for its impact on the integrity of the judicial proceedings. As has long been recognised, the position is different if the wrongdoing affects the fairness of a trial adversely to a defendant, for then a stay must be ordered.

Friday, October 23, 2015

Hardcopy edition of Misuse of Drugs

My textbook Misuse of Drugs will be published by Thomson Reuters NZ Ltd on 11 December in a new hardcopy edition. Orders may be made here.

Tuesday, October 13, 2015

Criminal Procedure in New Zealand, 2nd ed 2015

The second edition (hardcopy) of the criminal procedure text by Professor Finn and me will be available from 23 October, and may be ordered from Thomson Reuters NZ Ltd. Electronic formats, updated quarterly, are also available by subscription.

Sunday, September 06, 2015

Life, and the meaning of Proust

“In Search of Lost Time” – what does that mean? It is the search for happiness, for the connection between past happiness and the state of being in the present which allows us to exist outside time and to enjoy the essence of things. It is the search for that which is common to the past and the present and which is more essential than both because it energises the desire to live.

“let a sound, a scent already heard and breathed in the past be heard and breathed anew, simultaneously in the present and in the past, real without being actual, ideal without being abstract, then instantly the permanent and characteristic essence hidden in things is freed and our true being which has for long seemed dead but was not so in other ways awakes and revives, thanks to this celestial nourishment.”


Although the book has strong themes of unequal love, of jealousy, hatred and disgust, of death and grief, there is also an irrepressible happiness. The point is that, although time will eventually drag us all down, it is only the extent to which our spirit has soared with the joy of life that really matters.

Saturday, September 05, 2015

Proust posting 3: On human nature

Contemplation of human nature calls to mind the relationship between what we think and what we do. Proust found human nature endlessly (yes) interesting. Here, among his observations, are my favourites:

A. Our place in society
Everyone has their place:
“ “Oriane,” (at once Mme. des Laumes looked with amused astonishment towards an invisible third, whom she seemed to call to witness that she had never authorised Mme. de Gallardon to use her Christian name).”

And we want to be superior:
“she never gets a chance of being a snob; she doesn’t know anyone.”

We mark our superiority politely:
“She treated each of them with that charming courtesy with which well-bred people treat their inferiors ...”

“... “But you are our equal, if not our superior,” the Guermantes seemed, in all their actions, to be saying; and they said it in the most courteous fashion imaginable, to be loved, admired, but not to be believed; that one should discern the fictitious character of this affability was what they called being well-bred; to suppose it to be genuine, a sign of ill-breeding. ...”

“... they are naturally polite to anybody, as beautiful women are glad to bestow a smile which they know to be so joyfully received. ...”

“... he was sufficiently persuaded of his own importance to be able to mix with the very humblest people.”

B. Our relationships
We get over people:
“Nothing can be more affectionate than this sort of correspondence between friends who do not wish to see one another any more.”

We disconnect mutually:
“... the fiction of a mutual incognito, on hearing her friend’s name from the manager she merely looked the other way, and pretended not to see Mme. de Villeparisis, who, realising that my grandmother did not want to be recognised, looked also into the void.”

We try to impress:
“ “In fact, it was drolatic,” put in M. de Guermantes, whose odd vocabulary enabled people in society to declare that he was no fool and literary people, at the same time, to regard him as a complete imbecile.”

Aggressively we try to deflect criticism:
“... people against whom certain things may be hinted like to shew that they are not afraid to mention them.”

Gaydar alert!
“There is a special kind of glance, apparently of recognition, which a young man never receives from certain women — nor from certain men — after the day on which they have made his acquaintance and have learned that he is the friend of people with whom they too are intimate.”

C. Our own natures
I’m nasty, but funny with it:
“... it’s often difficult not to be a little spiteful when one is so full of wit ...”

“... “Mme. Verdurin, why, I used to know her terribly well!” with an affectation of humility, like a great lady who tells you that she has taken the tram.”

Stress can reveal us as essentially silly:
“... an exclamation the silliness of which kept him from sleeping for at least a week afterwards. His remark was of no great interest, but I remembered it as a proof that sometimes in this life, under the stress of an exceptional emotion, people do say what is in their minds.”

Meaning can get lost when one has to be polite:
“... she answered as she did, in order not to seem to be unaware of what I meant, as in a conversation one assumes an understanding air when somebody talks of Fourrier or of Tobolsk without even knowing what these names mean. ...”

“... the sterile pleasure of a social contact which excludes all penetrating thought”

Our errors compound:
“... the ill-balanced mentality of early manhood (a period in which, even in the middle class, one appears ungrateful and behaves like a cad because, having forgotten for months to write to a benefactor after he has lost his wife, one then ceases to nod to him in the street so as to simplify matters),...”

We can have a self-perpetuating insecurity:
“But he was so anxious not to let it be seen that he was not sought after, that he dared not offer himself. ...”

“... “You don’t happen to know what you will be doing in the next few days, because I shall probably be somewhere in the neighbourhood of Balbec? Not that it makes the slightest difference, I just thought I would ask you.” This air deceived nobody, and the inverse signs whereby we express our sentiments by their opposites are so clearly legible that we ask ourselves how there can still be people who say, for instance: “I have so many invitations that I don’t know where to lay my head” to conceal the fact that they have been invited nowhere.”

We can try to wound with silence:
“M. de Charlus made no reply and looked as if he had not heard, which was one of his favourite forms of insolence.”

We like to be noticed:
“ “You are the talk of the Conservatoire,” she added, feeling that this was the argument that carried most weight; ...”

Our attacks are justified:
“People are not always very tolerant of the tears which they themselves have provoked.”

We must make an effort to be social:
“... said the Duchess, making an effort in order to speak of a matter which did not interest her.”

The children must get established:
“... the great receptions given by Mme. de Marsantes and Mme. de Forcheville, given year after year with an eye chiefly to the establishment, upon a brilliant footing, of their children, ...”

There are times when we must appear decent:
“... he assumed the modest air of one who is not asking for payment.”


Friday, September 04, 2015

Proust on how to write a great big book

Continuing from last time ... Twelve tips from the master:

1. All this writing and just one book?
“I explained to Albertine that the great men of letters have never created more than a single work ...”

2. The grind gets it done:
“it is not the desire to become famous but the habit of being laborious that enables us to produce a finished work ...”

3. The effort can even be tiring:
“Perhaps some of the greatest masterpieces were written yawning.”

4. Don’t admit to being unoriginal:
“In this book ... there is not a single event which is not fictitious, in which there is not a single personage “a clef”, where I have invented everything to suit the requirements of my presentation ...”

5. Just because I use the first person, doesn’t mean it’s me!
“As soon as she was able to speak she said: “My ——-” or “My dearest ——” followed by my Christian name, which, if we give the narrator the same name as the author of this book, would be ‘My Marcel,’ or ‘My dearest Marcel.’”

6. It’s really about YOU:
“every reader, as he reads, is the reader of himself.”

7. Obsessive writer, obsessive reader:
“the writer, in creating each character, would have to present it from conflicting standpoints so that his book should have solidity, he would have to prepare it with meticulous care, perpetually regrouping his forces as for an offensive, to bear it as a load, to accept it as the object of his life, to build it like a church, to follow it like a rĂ©gime, to overcome it like an obstacle, to win it like a friendship, to nourish it like a child, to create it like a world, mindful of those mysteries which probably only have their explanation in other worlds, the presentiment of which moves us most in life and in art.”

8. Don’t be preachy-preachy – or at least don’t admit to it:
“that vulgar temptation of an author to write intellectual works. A great indelicacy. A work in which there are theories is like an object upon which the price is marked.”

9. They won’t understand!
“I was soon able to show an outline of my project. No one understood it.”

10. Be your own favourite author:
“I read the article [that I had written] forcing myself to imagine that it was written by some one else. Then all my images, all my reflexions, all my epithets taken by themselves and without the memory of the check which they had given to my intentions, charmed me by their brilliance, their amplitude, their depth.”

11. Just reveal the great universal laws of human nature:
“It is the feeling for the general in the potential writer, which selects material suitable to a work of art because of its generality. He only pays attention to others, however dull and tiresome, because in repeating what their kind say like parrots, they are for that very reason prophetic birds, spokesmen of a psychological law. He recalls only what is general.”

12. And remember, for the publisher it’s all about the money:
“the impenetrable solidity of certain commercial houses, booksellers’ for example or printing presses, where the wretched author will never succeed, notwithstanding the diversity of the persons employed in them, in discovering whether he is being swindled or not.”