On co-defendants’ statements and admissibility

Hearsay5
Five co-defendants in the early 2000s explain the nature of their statements vis-a-vis each other.

 

(Initial disclaimer: the groundwork for this piece draws substantially on the Law Commission’s Report on its Second Review of the Evidence Act, and Palmer J’s decision in R v Wellington [2018] NZHC 2080.  The point of the piece is respectful (and probably incorrect disagreement with the conclusions in those sources, but it is proper to acknowledge the extent to which I’ve drawn on them.)

 

The right problem

Right now, a co-defendant’s statement is only really admissible by the prosecution if you want to tender it for the truth of its contents.

Look at s 27(1) of the Evidence Act 2006:

Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, and is admissible against a co-defendant in the proceeding only if it is admitted under section 22A.

So the only way a co-defendant’s statement is admitted is through s 22A.  But s 22A doesn’t let you admit co-defendant statements generally.  It only lets you admit “hearsay statements”.  That is, a statement:

  1. By a co-defendant who is not a witness (remember, it’s up to a defendant whether they choose to give evidence); and
  2. That is tendered to prove the truth of its contents.

Next, look at s 22A:

22A Admissibility of hearsay statement against defendant

In a criminal proceeding, a hearsay statement is admissible against a defendant if—

(a) there is reasonable evidence of a conspiracy or joint enterprise; and

(b) there is reasonable evidence that the defendant was a member of the conspiracy or joint enterprise; and

(c) the hearsay statement was made in furtherance of the conspiracy or joint enterprise.

Section 22A is only a route to admit hearsay statements.  It doesn’t let you admit co-defendant statements that are not hearsay.  And there’s no other route to admissibility in the Act.

There’s a bunch of reasons why you need to be able to admit non-hearsay co-defendant statements.  For example, to prove that something was said because it goes to a person’s state of mind.  Or, when a co-defendant chooses to give evidence their statements are no longer hearsay.  In that case, there has to be a way to admit them.

The difficulty is, the Evidence Act doesn’t let you.  Not on its face.

To understand the problem, you’ve got to go back to the beginning.

Fundamentally, co-defendant statements are hearsay if they’re tendered for the truth of their contents.  They’re out of court statements by a person who is unavailable as a witness.  That’s the Evidence Act idea of hearsay, but they were hearsay under the pre-Evidence Act position as well (see R v Fenton CA 223/00, 14 September 2000 at [31]).

Importantly, though, under the old law of evidence, if the Crown didn’t want to tender a co-defendant’s statement for the truth of its contents, then it was admissible (see generally Law Commission’s Second Review of the Evidence Act (NZLC R142, 2019) at [15.10]).

Sure, the common law recognised that co-defendant hearsay wasn’t just plain old hearsay.  Co-defendant statements carry with them particular risks.  Apparently when defendants get caught they have a tendency to blame each other in a bid to exculpate themselves (no honour among thieves and all that).  It makes the statements awfully difficult to rely upon, and the normal tests for admitting hearsay statements weren’t up to the task.  This impediment to admission was called the co-accused rule (see R v Pearce [2007] NZCA 40 at [26]).

The common law offered a couple of solutions to the co-accused rule.  The main one was the co-conspirator’s exception.  If the Crown could prove the statements were made as part of the defendants committing their crimes – made in the heat of the moment if you will – then they were likely to be reliable enough to be admitted to prove the truth of their contents (see R v Pearce [2007] NZCA 40 at [25]).

But remember, all of that was just a kind of special policy overlay for what was fundamentally an issue of hearsay.  Co-defendant statements were just a type of hearsay when they were tendered to prove the truth of their contents.  If they weren’t, then they could be admitted.

The Evidence Act 2006 carried over the common law co-conspirator exception in the common law through what used to be s 12A.  (As a side note we really don’t have time for, the whole idea of the Evidence Act was to codify the law of evidence but that failed because everyone forgot about ways to admit co-defendant statements using the co-conspirator exception.  Section 12A was an emergency patch expressly importing back in the common law in order.  No big deal.)

Now, the co-conspirator exception is properly codified in s 22A, and we’ve ditched s 12A.

And now, ackkkk, it’s broken.  Section 27(1) keeps out all co-defendant statements unless you can bring them under the co-conspirator exception in s 22A.  Which means the Act (purportedly a code) doesn’t give you a means of admitting co-defendant statements when they’re not hearsay.

Well, it *would* be broken if anyone actually followed the Evidence Act.  Because the courts pretend this problem doesn’t exist.  They have no problem admitting in non-hearsay co-defendant statements, even though the route to doing so is far from clear.  Go take a look at a Court of Appeal decision this month called Dheil v R [2019] NZCA 416 at [29]-[30].  Non-hearsay co-defendant statements were admitted no problem.

Right now, you’ve got an Act that doesn’t let you do things, and most courts either (charitably) don’t realise or (less charitably) dodge the issue.  In practice, though, if a co-defendant statement is not hearsay, then in it comes say the courts.

The wrong answers

Now, the Law Commission has noticed the issue with how the Act presently doesn’t seem to let you admit co-defendant statements when they’re not hearsay.

It’s not going too far to say though that the Law Commission has concluded that’s a feature, not a flaw.

In the Commission’s Second Review of the Evidence Act the Commission stated (Law Commission’s Second Review of the Evidence Act (NZLC R142, 2019) at [15.20]):

[15.20] The concerns associated with hearsay statements are unlikely to apply to the same degree to defendants’ statements that are not hearsay.

If a defendant’s statement is not hearsay because the defendant elects to give evidence at trial, the co-defendant will be able to test the reliability of the statement by cross-examining the defendant.

If the statement is not hearsay because the prosecution intends to rely on it for a purpose other than proving the truth of its contents, unreliability is less likely to be a significant concern … [there is an important clause in brackets here I’ve removed for now but the point is addressed substantively below].

At least that far, we’re on the same page.

But the Law Commission’s proposed solution to the problem of s 27(1) is that (at [15.21]):

the admissibility rule in section 22A should provide an independent basis for admitting a defendant’s statement against a co-defendant, regardless of whether the statement is hearsay.

That is, even statements that are not hearsay will only be admissible if they fall under the co-conspirator exception.  That high threshold of admissibility will follow, even when some non-hearsay co-defendant statements don’t warrant that high standard because they don’t prompt the same admissibility concerns.  Instead, the bar is raised universally.

One of the few cases in which this whole schemozzle was discussed, broadly endorsed the Law Commission’s proposed solution as well: see R v Wellington [2018] NZHC 2080 at [69].  (Definitely worth reading it for the scholarship behind it and clarity of analysis, even though I don’t agree with all of it.  Importantly, Palmer J suggests a way in which s 27 might be read in a way that works, although recognises it faces a “stiff interpretive challenge” (at [68]).)

Wait, don’t go!  I mean, yes it looks bad if I’m disagreeing with the Law Commission.  But hear me out.

The difference in approach is that the Law Commission treats co-defendant statements as evidence sui generis.  But I don’t think they are (and I suspect this is the key point of disagreement).  Co-defendant statements are a species of hearsay, both under the old law, and especially under the Evidence Act as they literally meet the definition (when tendered for the truth of their contents).  They prompt special reliability concerns, but if you want to rely on them for the truth of their contents, well, that’s what the co-conspirator exception is for.  Otherwise, there’s no need to treat them differently.  When they’re not hearsay, they should be admissible.

And think about these things.

First, the Law Commission’s proposed position imposes a higher standard on non-hearsay co-defendants for no good normative reason. If you acknowledge that there are lesser reliability concerns with non-hearsay statements (which the Law Commission does), then changing the law to impose a uniform but higher standard on non-hearsay statements does not follow logically from the problem you have identified.  Remember it is the Law Commission essentially proposing a change from the common law position which treated co-defendant statements as straightforwardly admissible when they were not relied on for the truth of their contents.  I do not read the Law Commission proposal as giving any explanation as to why traditionally non-hearsay statements by co-defendants should have to jump through the requirements of the co-conspirator rule before they can be admitted.  This is a significant change that renders prima facie inadmissible a large class of evidence that was admissible under the old law and practically is admissible now (eg. when you get the Dheil v Rs of this world and the courts just wave it on in).  There is no particular harm that needs to be guarded against through a law change.

Second, the Law Commission’s approach is motivated by its assessment that all co-defendant statements have a much greater potential to be false or self-serving.  But the s 22A approach already lets you look to non-hearsay co-defendant statements as part of the evidential matrix to determine whether a joint enterprise exists (see R v Messenger [2008] NZCA 13, [2011] 3 NZLR 779 at [13] and R v Qiu [2007] NZSC 51, [2008] 1 NZLR 1 at [14]).  In other words you are allowed to look at the very evidence that the Law Commission has just increased the admissibility threshold for.  It makes more sense to stick to the traditional route.  We can be discerning about the reliability of co-defendant statements.  If they are not relied on for the truth of their contents, then they don’t have the same reliability concerns. That lets us place weight on them when trying to figure out whether a joint enterprise existed. If, in combination with other evidence, we decide there is, and the other limbs of the s 22A test are met, then we can begin to admit that evidence for the truth of its contents.

Third, the Law Commission’s approach will drive the Crown into advancing the types of arguments all right-thinking people should run a mile from.  That’s the R v Holtham [2008] 2 NZLR 758 (HC) and Preston v R [2016] NZCA 568, [2017] 2 NZLR 358 type arguments about how something is not really a “statement” in a bid to get around these provisions.

Preston.jpg
The reasoning in R v Holtham and Preston v R.  Save us.

The contortions parties will go to arguing over whether something is a “statement” will be to the overall detriment of the state of evidence law generally (and see R v Wellington at [64]: “These are the sort of linguistic distinctions which can give legal analysis a bad name.”)  The battleground should be hearsay/non-hearsay, not statement/non-statement.

Fourth, and last, why this change?  The idea that a co-defendant’s non-hearsay statement is admissible is how everyone thought the Evidence Act did and should work for large periods of its existence.  Goffe v R [2011] NZCA 186, [2011] 2 NZLR 711 and R v Messenger  and Dheil v R are examples of that. For years before s 22A, the system worked perfectly well in practice with the assumption that a non-hearsay co-defendant statement would be admissible.  No particular instance of injustice has been identified.  All that is identified (correctly, mind) is that the wording of the Evidence Act doesn’t let the legal system take an approach to the law that they thought was permitted.  The solution to that is changing the Evidence Act to the way we think it works right now.  That could be done by amending s 27(1) to say a co-defendant’s hearsay statement is inadmissible except through s 22A.  That’s all we’d need to fix the problem the Law Commission identifies in the Act’s drafting, and bring the Act in line with present day practice.

Concluding thoughts

Imagine if the Law Commission’s proposed change goes ahead.  Under that scheme, if a defendant gives evidence in a trial – all of their statements (both in court and out of court) still aren’t admissible against a co-defendant unless they pass through the co-conspirator exception.  But why?  Why should they have to?  They are available for cross-examination.  The safeguards are there to prevent shifting the blame.  The co-defendant can cross-examine that defendant all they like.  The defendant is in the same position as any other witness.  Even the Law Commission in its own words agrees the reliability concerns are considerably lessened.  Why, then, should the Crown have to clear the high bar of s 22A to have that non-hearsay statement admitted?

Finally, on this topic, bear in mind the Supreme Court’s drive-by comments in Winter v R [2019] NZSC 98 this month.  It included a very pass-agg comment on the Law Commission’s proposed change, simply restricting itself to saying that (at [63]) “on the face of it, however, [the proposed amendment] would still not replicate the common law as explained in Messenger.”  Now, whether that’s the judicial equivalent of an “Every day we stray further from God’s light” meme, I don’t know.  But it serves to make the point, that the Law Commission’s solution seems to walk us further and further away from the common law position that is still being applied practically today.  In the absence of a compelling reason not to, normalising the position on an understanding of current, seemingly effective practice makes more sense to me.

So, please, think carefully about the Law Commission’s recommendation on this one.  My preferred amendment is that s 27(1) should say a co-defendant’s hearsay statement is inadmissible except through s 22A.  That means that a non-hearsay co-defendant statement will be prima facie admissible, subject to any other section of the Evidence Act.

Real Jock Anderson headline or pale imitation?

Cheese
*chef’s kiss emoji*

 

I genuinely freaking love the headlines on Jock Anderson’s lawyer profiles on the Law Society website.  I don’t know whether he writes them, or an editor does.  But whoever does takes a Go Big Or Go Home approach to jamming every interesting fact possible into a single sentence.  The resulting foie gras headlines sit atop interviews where interesting lawyers doing interesting legal and non-legal work get asked what car they drive.

Some of the great examples include Slow-cooking military enthusiast fears loss of courtroom history and Black belt’s fish supper plans for Plato and the President and Rangitoto swim challenge for tennis-ranked farmer’s daughter.

So good they practically write themselves…

Below are 14 headlines.  Seven are from real Jock Anderson lawyer profiles.  Seven I have just made up.  Without searching the Law Society archive, can you pick the real headlines?

  1. Human boarding pass keen on Kiwi Godfather role

  2. Classic car collecting QC kept young by grandchildren and lawn bowls

  3. Nomadic adventurer fancies saki-sipping hot soak in snow

  4. Find the best Nanny, says tramping bass-player sailor

  5. Skydiving Sunday School teacher finds lessons in West Coast community

  6. Yorkshire aviator lands citizenship pineapple lump reward

  7. Give it a go, says Welsh taxi driver turned Shortland St barrister

  8. How skateboarding ex-GI re-enlisted in new life

  9. First Venezuelan-born lawyer keen on rodeo and great kiwi baches

  10. Bagpiper with growing family looks forward to space adventures

  11. Dibbly-dobbly bowler didn’t reckon on skiing lifestyle and good clean fun

  12. What an Irish cottage restorer learned in traffic court cauldron

  13. How multi-lingual globe-trotting glass artist conquered legal hurdles

  14. Blackstone scholar and triathlete will stick to the lattés.

 

Answers below.

 

 

 

 

 

 

 

 

 

 

 

The genuine article

1. Human boarding pass keen on Kiwi Godfather role

3. Nomadic adventurer fancies saki-sipping hot soak in snow

4. Find the best Nanny, says tramping bass-player sailor

6. Yorkshire aviator lands citizenship pineapple lump reward

8. How skateboarding ex-GI re-enlisted in new life

12. What an Irish cottage restorer learned in traffic court cauldron

13. How multi-lingual globe-trotting glass artist conquered legal hurdles

 

Pale imitations

2. Classic car collecting QC kept young by grandchildren and lawn bowls

5. Skydiving Sunday School teacher finds lessons in West Coast community

7. Give it a go, says Welsh taxi driver turned Shortland St barrister

9. First Venezuelan-born lawyer keen on rodeo and great kiwi baches

10. Bagpiper with growing family looks forward to space adventures

11. Dibbly-dobbly bowler didn’t reckon on skiing lifestyle and good clean fun

14. Blackstone scholar and triathlete will stick to the lattés

 

A farewell to the Auckland High Court Crown Room

Next week the Auckland High Court gets rid of its Crown Room.  The Crown Room is in the historic part of the courthouse on the upper level along the side of the building that faces Waterloo Quadrant.  It’s an annex of rooms and corridors that were created in the late 80s from what used to be Courtroom 3 (and before that was a library).  After that it was decided that you can’t improve on perfection.  It hasn’t been touched since.

Two rooms at the west end are for the Police, these days used only by the officer assigned to the Court.  Two austere rooms at the east end, ceded in the 2015 matrimonial property dispute to the Manukau Crown.  And, in between, a small warren of rooms and a jury’s worth of furniture (in that there are twelve pieces that look like they’ve been chosen at random).

The days of the Crown needing so much space were gone long before I had the chance to set foot in it.  Now the sprawl is luxurious in a building that needs to maximise space, and that’s why it has to go, I guess.  But the room is a worn-down testament to law as it was; a time that I only get to know by listening to the quiet creak of the floorboards.  The idea that as a young lawyer you walk in the same space as all the people that came before you, is one that I can’t stop turning over in my mind when I’m there.

As much as the law likes getting dressed up nicely, the Crown Room is the law’s last pair of comfy pyjama pants.  Faded teal green carpet with a patch worn in the spot where thousands of feet have swivelled slightly in the same place as they turn a corner into a corridor.  Office chairs that look like the victims of psychopathic chiropractors.  Couches whose arms are grey with grime, and whose cushions started phoning it in in the late 90s, but are still somehow the comfiest couches known to humankind.

Like all communal spaces, if someone forgets something and leaves it behind, everyone else will assume it’s meant to be there.  The Crown Room has had decades of practice at that.  That’s why its decorations include a remote control snake with little wheels under its head, one abandoned double-breasted suit jacket the size of a parachute and, for reasons that continue to elude me, a framed group photo of Auckland High Court judges in their ceremonial reds at the swearing-in of Justice Temm.

In one dark, windowless room there’s a network server, little green lights flashing away like a droid in a Jawa sandcrawler.  In a second is a doughty printer that has printed out thousands of last minute court documents, and next to it the world’s smallest stapler.  A new coffee machine does its best to fit in by making terrible coffee.

And the remnants of history!  An old set of drawers, one of which is labelled “drinks order forms”, leftover from the decades long gone when it was vital the Crown Room had to hand sufficient booze.  A line of lockers with faded name labels: “S E Moore”, “M Woolford”, “C Gordon”.  The unlocked door behind a file rack that lets you walk up the internal spiral staircase of the High Court tower – no handrails, dust-filled, steep and treacherous.

Even the absurdity of the place is dear to me.  The combination lock on the door that had to be changed when someone lost a piece of paper that had on it both the combination and what the combination was for.  The jar of biscuits that is only ever added to, never fully replaced, meaning the bottom half of the jar is a slowly composting melange of Hokey-Pokey Squiggles and Cameo Cremes.  And the toilet where if you’re going standing up you have to make awkward eye contact through the event with a gargoyle outside who stares in the window.

I’m not sure what they’re turning it into – chambers, possibly, or meeting rooms.  Something with nice carpet and sensible chairs, and double glazing and none of the things which make the space what it is: a place to sprawl hungover on a couch while someone else swears at the over-enthusiastic Zip water heater.

Soon the Crown Room will be gone.  In a couple of weeks it won’t be there.  A couple of decades after that and the only place you’ll find it is in a story I’m boring some young lawyer with.

Ah well, so it goes.

 

 

UPDATE: a reliable source tells me that the Crown Room will become chambers for Court of Appeal judges, who will sit in Courtroom 1 instead of the Lorne Street hearing centre.  Goddard J, if you’re reading this, ask them to keep one of the couches for you!

Legal horoscopes

Beit_Alpha
I’m on the cusp of Aries and Band Two of Fatu.

 

Aries (March 21 – April 19)

You’ll struggle with a constant sense of rejection as you try to get a registrar to accept an application for probate.

Something will happen this month that will require you to seek the mercy of others, at least until the Criminal Cases Review Commission is established.

A mistake calculating working days will have unexpected benefits.

 

Taurus (April 20 – May 20)

Everyone is so very accepting of all you have to offer, except that one self-represented litigant who is dodging service.

Sometimes going through the motions is all you can do, especially if you’re presiding over the miscellaneous motions list.

Under no circumstances use Latin terms in your court documents.

 

Gemini (May 21 – June 20)

Your sense of satisfaction will be greatly increased this month, but so too will be the costs ordered against your client.

Mars is in your house this month, which is technically trespass.  Go to your bathroom, lock the door and call the Police.

Part 30 of the High Court Rules will hold special meaning for you.

 

Cancer (June 21 – July 22)

The safest place after a bank robbery is the smashed vault that’s crawling with armed cops and ringed with Police tape.  By that logic, Russell McVeagh looks pretty good right now.

If the courts can call the 11.30am break “morning tea” then 9.15am is a perfectly acceptable time to get to work.

Use Latin terms in your court documents at every opportunity.

 

Leo (July 23 – August 22)

It never rains but it pours this month, as you finally get a case on Decisions of Public Interest but it’s one where you got an absolute pantsing.

Write down three things you hope to accomplish this month and then send it to yourself in a letter, to be opened after thirty days.  Be sure to label the letter without prejudice.

Words come easily to you this month but so do prolix pleadings.

 

Virgo (August 23 – September 22)

Too many cooks spoil the broth, but three Cookes have made it to the High Court bench.  It just goes to show that you can’t place great store in platitudes.

At last people will start seeing your inner queen.  Why else would they be establishing a *Royal* Commission into you?

If anyone tries to challenge you, plead three aggressive affirmative defences.

 

Libra (September 23 – October 22)

This month you’ll realise that some things just aren’t meant to be, as you ask for your third amendment to timetabling.

You have to spend 10 hours per year becoming a better lawyer but no hours per year becoming a better person.

Read McGechan on Procedure for an hour every night before bed.

 

Scorpio (October 23 – November 21)

What’s that old saying? “Lawyers, guns, and money – pick any two.”  A new brief will come across your desk that shows you that you were right to hold out for all three.

You’ll feel your age this month when you realise your standard form notice of appearance still says you’ll accept service via fax.

You will get news you will want to tell everyone.  Tell your insurer first though.

 

Sagittarius (November 22 – December 21)

A voyage of discovery will see you spending late nights at the office reviewing documents for privilege.

Your own truth is personal to you, but it won’t get you very far if you can’t point to where it is in the agreed summary of facts.

If Mai Chen calls, don’t pick up.

 

Capricorn (December 22 – January 19)

Your efforts to be less judgemental will be put to the test as you accept appointment to the District Court bench.

Now matter how early the bird is, the worm can’t give more than a 25% discount for a guilty plea.

Beware of the rule in Re G J Mannix Ltd.

 

Aquarius (January 20 – February 18)

A tough choice between your personal and professional lives beckons this month as you have to choose between losing your appeal and losing your appeal.

You’ve always struggled to get answers despite being such a particular person.  This month you’ll realise that it’s because people aren’t required to respond to particulars.

Despite raising your standards you will get in trouble with a Standards Committee.

 

Pisces (February 19 – March 20)

Being proven right in your personal life will come as a relief, but the same can’t be said in your application for judicial review where you’ll be proven right but relief is discretionary.

You won’t always get it right the first time, but then, neither did the Supreme Court in Saxmere.

Pleading won’t change anything, so try a form of alternative dispute resolution.

 

Famous songs as written by lawyers

Tuxedo Injunction – Glenn Miller and his Orchestra

Sitting In the Dock Of The Bay – Otis Redding

Where You Plead – Carole King

Lien On Me – Bill Withers

Van Bohemen J Rhapsody – Queen

Section 4(5) Seconds – Kanye West, Rihanna, Paul McCartney

Sympathy for the Treasury Devil – Rolling Stones

The Prominent Entertainer – Scott Joplin

The Night They Read Old Dixie Down – The Band

Working 5 To 9 – Dolly Parton

Ademption Song – Bob Marley and The Wailers

Lady Marmalade JSC – as covered by Christina Aguilera, Pink, Lil’ Kim, and Mýa

Johnny v Goode – Chuck Berry

 

On articles of faith

Believe
Do you believe in life after love, and that juries follow judicial directions?

Shortly following your admission as a barrister and solicitor, just after you sign the roll, you’re invited to drink a cup of Kool-Aid.  Once you imbibe, you find yourself believing in certain foundational myths of the legal system.  Things like witnesses draft their own affidavits, and sailing trips for judge and counsel are just fine.

There are good reasons for these myths.  Any system works best when everyone speaks the same lingo and believes the same things.  Outside the academy, I don’t know if the law goes in much for denominationalism.  God knows the law loves its legal fictions.  But a straight legal fiction is not really what I’m talking about.  Everyone knows a corporation isn’t really a person, and the sky won’t fall in if you say this to someone else.  I’m talking about legal fictions that everyone has to believe because without the belief the system stops working.  The sort of ur-fictions that seem like they’re enforced by a Stonecutter-esque secret society dressed in robes (possibly a poor metaphor given how commonplace be-robed elitism is in the law).

All of which preamble serves to underscore the heresy reported in a story this week about a murder trial in Palmerston North.  During his evidence, a Crown witness blew the doors off his witness protection and admitted he could not have heard key evidence he purported to give.  That was reported very well in this story by Jono Galuszka.  Following that, both the Crown and defence agreed that the witness did not warrant further name suppression (subject to maintaining secrecy of witness protection arrangements).  The media would be free to report on the wheels coming off mid-trial.

The trial judge – Ellis J – opted to continue suppression of the evidence.  Her Honour’s essential reasons are below:

Ellis2
R v Johnson and Haeana – Direction of Ellis J HC Palmerston North CRI-2017-054-850 & 2016, 5 July 2019.  

The part that caught my attention was that Ellis J was “not prepared to proceed on the basis that all jurors will have managed (or will continue) to comply” with the standard judicial direction not to read media reports.

“Juries will obey judicial directions” is one of the core foundational beliefs in the legal system.  So much of our jury trial system depends on that statement being true.  And the fact it might not be true is intensely problematic.  Because if it’s not true then how do we know juries might not Google things?  How do we know juries are applying the right standard of proof?  How do we know jurors aren’t discussing the case at home each night with their flatmates?  Do we admit to ourselves we leave a case in the hands of twelve people who might be deciding a case however they want?

The solution of the legal community presently seems to be to simply believe really really hard that it’s true.  So when Moore J considered whether to make media take-down orders in R v Tarapata [2017] NZHC 3209 at [43]-[48] his Honour decided:

[43] … I must be satisfied that a real risk exists despite the direction I gave the jury that they were not to undertake any inquiries of their own including internet searches.

[44] This is not a notorious case such as Bain or Lundy . It is unlikely that any members of the jury would bring to their role a residual memory or knowledge of Mr Tarapata or the events in 2014 and the media coverage of his first trial. Thus the issue is whether I should make the orders solely to prevent jurors from undertaking a course which I specifically directed them they must not.

[46] … the primary question here is whether there is a real risk a juror or jurors may ignore my direction. If risk to that level is made out I accept Mr Tarapata’s fair trial rights would be adversely affected for the reasons identified by Mr Krebs.

[47] Thus I return to the primary question which is whether I am satisfied there is a real or substantial risk a determined and irresponsible juror might undertake their own internet inquiries.

[48] On that point I agree with Lang J’s reasoning. The posted stories and articles in question would not be in the public consciousness. To access articles on the internet a juror would have to actively search Mr Tarapata’s name or those of his victims. Given my firm direction I regard that as a remote possibility.

In R v Rewa [2018] NZHC 1846 at [67] Venning J dismissed concerns that jurors wouldn’t put from their mind any previous publicity:

[67] In my judgment and experience jurors take their responsibilities which they solemnly confirm by the oath or affirmation to try the case on the basis of the evidence very seriously and abide by the trial Judges directions. The structure and formality of the trial processes and courtroom setting, all of which are completely new to the jurors and well outside their general experience removes them from daytoday life and enhances the likelihood they will follow and adhere to judicial directions. Judges’ collective experience is that almost all jurors approach their task responsibly. Trial judges will all have experienced the nods of assent from jurors when the judge explains why they must not be influenced by media reports, or why propensity evidence is to be led and how it may be used for example. Jurors well understand the concept of fairness. Experience shows that jurors become engaged in the trial process to the exclusion of other considerations and particularly so when the trial runs for a period of weeks. 

And Winkelmann J (as she then was) in R v Bailey HC Auckland CRI-2007-085-7842, 23 April 2010 at [67] stated:

[67] Trial judges regularly express confidence in the efficacy of judicial direction. These are not expressions of wishful thinking, but reflect the common experience of the trial Judge that juries do follow judicial direction. Judges are able to measure the efficacy of judicial direction in the verdicts delivered by juries who, by their verdicts, show that they have understood and followed directions, including those as to prejudice and the proper use of evidence.

I digress briefly to say that, of course, this presupposes that juries have in fact been directed on what to do.  In one of my very few trials the jury didn’t like the bathroom facilities supplied to them.  Over the course of their deliberations they started ducking out of the jury room to use the bathrooms in the public area of the Court, where they ran into members of the press bench.  A slightly bemused Lang J had to call the jury back in and (in what was no doubt a high point in his judicial career) directed the jury on which bathrooms they were to use.  To my knowledge, once directed, they obeyed.  I am unsure whether this direction now forms part of the standard directions in the bench book.

Returning to the point, though, the near-uniform approach of the bench has been to insist juries will follow directions.  Whether that’s a case of putting one’s fingers in one’s ears, closing one’s eyes and saying very loudly “LALALALA I can’t hear you”, I’m not sure.  But at least one judge isn’t buying it.  The Palmerston North murder trial isn’t the first time that Ellis J had expressed doubts.

In R v Lyttle [2017] NZHC 2426 (not on NZLII) Ellis J made a take down order for online media articles.  Her Honour reviewed empirical evidence that showed that – at least in respect of internet searches – jurors do not always follow judicial direction.  That evidence operated as one factor (among others) justifying the take down order (at [19](d)):

notwithstanding the truth of the proposition that faith in the jury system is necessarily predicated on the assumption that jurors will comply with judicial directions, there is empirical evidence (which was not before the Courts in Lyttelton) that strongly suggests that that is not always the case in relation to internet searches…

Sssshhhhhhhh!!!

I guess it’s too flippant to suggest that all this makes Ellis J the Lloyd Geering of the High Court bench.  Her Honour’s approach relies on overseas and Law Commission research for the point she makes.  And the empirical evidence is so far only focused on making one’s own media enquiries.  But it’s an uncomfortable intrusion into the accepted wisdom that juries will follow directions.  An uncomfortable intrusion that makes a very good point and makes me miserable at having to cast-off comfortable accepted wisdom.

And if juries don’t follow certain directions, what other directions do they not follow?  We have proof of partial non-compliance.  Retaining faith that juries follow directions in light of that isn’t intellectually bankrupt, but it could at least verge on intellectually insolvent trading.  It’s a rabbit hole I don’t really want to go down.

It strikes me that this question of faith in judicial directions is but one instance of a string of recent clobberings meted out to the legal system by empirical evidence.  The Court of Appeal is soon to grapple with the idea that long prison sentences don’t seem to deter offenders (and see the frontrunner in that debate – Palmer J in R v Wellington [2018] NZHC 2196 at [8]).  That’s a large ship to turn.

Reports under s 27 of the Sentencing Act 2002 are permitting courts to take into account demographic-based statistical evidence of Maori deprivation, and the social history of how we reached that point (a shameless plug for my earlier piece Thoughts on Solicitor General v Heta).  We have Alcohol and Other Drug Treatment Courts and Rangatahi Courts.  And some other empirical evidence successes have already taken seed – it seems unlikely we’ll go backwards on the Churchward v R youth factors, which were based on scientific research about young person brain development.

These things are all positive developments, where scientific or empirical evidence has led to better outcomes.  But none of them seem so fundamental to the system as juries.  The thing that’s too scary to contemplate is that if it’s true that if a jury room is the wild west then the entire system is borked and the solution isn’t clear.  I’m not saying it is.  In fact, I doubt it is.  But right now its integrity is an article of juridical faith.  And we should be honest with ourselves that that’s what it is, and that there is empirical evidence to challenge that faith.

In the meantime, we can all sit quietly in a dark room and ponder the consequences for our legal system if juries won’t do what they’re told simply because they’ve been told to by a room full of people dressed like extras from a Harry Potter movie.

 

 

 

(For completeness, a helpful synthesis of Lyttle, Tarapata and another decision of Moore J’s called Kahia v Police [2018] NZHC 1023 (not on NZLII) can be found in a decision by Gordon J called Parangi v Police [2018] NZHC 3123 (also not on NZLII), which provides no real answers to the main dilemma.)