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. [Update: the functional approach is consistent with Ortmann v United States of America [2018] NZCA 233 (5 July 2018).]
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. [And another update: the Supreme Court takes a functional approach: Ortmann v United States of America [2020] NZSC 120.]
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 lowered 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?
