Sena v Police [2019] NZSC 55 as applied to sentencing appeals

marble-maze
Our legal system

Changes to appellate tests are in vogue in the senior appellate courts.  And like one of those marble chute toys for children, the changes are kerplunking their way down the hierarchy of courts.  But the path one of those cases is taking might deserve further thought.

Sena v Police

In Sena v Police [2019] NZSC 55 (and presumably coming to a Law Report near you) the Supreme Court held that the test on appeal against conviction from a judge-alone trial was a general appeal.  That was on the basis of some detailed consideration of the legislative history.  In Sena, the section of the Criminal Procedure Act 2011 that conferred the right of appeal was s 232.  It’s set out next.  Pay particular attention to s 232(2)(b):

232 First appeal court to determine appeal

(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—

(a) in the case of a jury trial, having regard to the evidence, the jury’s verdict was unreasonable; or

(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c) in any case, a miscarriage of justice has occurred for any reason.

(3) The first appeal court must dismiss a first appeal under this subpart in any other case.

(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

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

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

(5) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.

Sena was an “erred in his or her assessment of the evidence” case.  Leave to one side the regrettable gender-binary language of the Act.  The Supreme Court was critical of the trial judge’s reasons.  There were conflicting witness accounts.  The judge favoured one side and rejected the other.  But the judge didn’t explain why, or engage with the conflicts in the accounts.  That was sufficient to show an error in the judge’s assessment of the evidence, and it was to such an extent that a miscarriage of justice occurred.

Writing for a unanimous Court, William Young J’s key conclusions on the approach to be taken to s 232(2)(b) were as follows:

[36] … We see s 232(2)(b) as premised on the assumption that the s 106(2) (and common law) requirement for reasons has been satisfied. Connell and Eide indicate the kind of reasons which judges should provide. They should show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached. Reasoning which consists of a conclusory credibility preference is unlikely to suffice. The language of s 232(2)(b) reflects an assumption that the reasons given by a judge will reflect that judge’s assessment of the evidence and why that assessment resulted in a conviction. A failure to provide such an assessment frustrates the operation of s 232(2)(b) and may well engage s 232(2)(c); this on the basis that a reasoned judgment is essential to a fair trial. A failure to provide a reasoned resolution of a significant evidential dispute may, alternatively, suggest a misapprehension of the effect of the evidence, for instance a misapprehension of the significance of the dispute. As we explain later in these reasons, this case involves such a misapprehension.

[37] In saying all of this, we accept that imperfection of expression is practically unavoidable, particularly in oral judgments. Accordingly, appellate courts should assess reasons contextually, in light of the evidence given and allowing for the burden for judges of balancing the need for prompt determination of criminal cases with other workload requirements. The adequacy (or not) of reasons must be assessed in light of the type of case (including seriousness) and the issues involved. What is required are reasons which address the substance of the case advanced by the losing party. Depending on the circumstances, this can be achieved without necessarily referring in detail (or sometimes at all) to every issue or argument which that party has advanced.

[38] To the extent that [counsel for the appellant’s] first line of argument is based on the premise that the approach in Austin, Nicholls applies to appeals from judge-alone trials, as indicated above, we agree. If an appellate court comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed. But, to the extent that Mr Jones was suggesting that the role of an appellate court is to consider the issues de novo as if there had been no hearing at first instance, then we do not agree. Since it is an appeal, it is for the appellant to show that an error has been made.

One of what I think is the most important points in there is that the Supreme Court viewed the statutory appeal ground in s 232(2)(b) as giving a meaningful consequence to the duty on a trial judge to give reasons.  The duty exists in s 106 of the Criminal Procedure Act 2011 and at common law.  A failure to comply is likely to translate into an error under the Act because you won’t have shown that you assessed the evidence properly.

Another important point of context (which isn’t unique to Sena) is that even on a general appeal, the appellate court does not automatically interfere.  An appellate court will only do so if satisfied there is an error in the decision below.  So the first thing an appellant has to do is convince the appellate court that there is an error.  Only if they get past that stage will the appellate court then substitute its own views.

Sena changed (some would say clarified) the test on appeal from judge-alone trials.  You get a general appeal, not a more limited review that jury trials get.  As William Young J explained, the Court isn’t really changing the law.  The Court’s conclusion is just a product of statutory interpretation: everyone had simply been using the wrong test since the advent of the Criminal Procedure Act 2011.  But that’s not what has prompted the post.  Up to now has simply been necessary background.

Sena, Palmer J and sentencing

What did Sena change?  It changed the test for appeals against conviction from judge-alone trials.  And it emphasised the importance of reasons.  If you don’t get your reasons right, it will animate the ground of appeal in s 232(2)(b).  That’s the section which lets you win your appeal if the judge has erred in his or her assessment of the evidence.  Boiled down to its most simple: a failure to give proper reasons matters, because s 232(2)(b) gives you an appeal from the failure.

This week, Palmer J has taken the reasoning in Sena and applied it to sentence appeals.  And I think sentence appeals are different.

Most importantly, sentence appeals are brought under a different section of the Criminal Procedure Act 2011.  Section 250 of the Act provides:

250 First appeal court to determine appeal

(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

(3) The first appeal court must dismiss the appeal in any other case.

Section 250(2)(a) is what I care about.  Your appeal gets allowed if there is an error “in the sentence imposed”.  It’s outcome-focused.  There has to be an error with that which was imposed.  That stands in distinction to the process-focused ground of appeal in s 232(2)(b) where what matters is whether the judge “erred in his or her assessment of the evidence”.

Any sentencing judge has to give reasons.  Any judge at all has to give reasons.  That’s Judging 101.  But s 250(2)(a) doesn’t turn that process failure into an automatic error on appeal.  Instead, there has to be an error in the sentence imposed.

Justice Palmer appears to disagree.  In Allport v Police [2019] NZHC 1306 his Honour set out the test on an appeal against sentence:

[15] Under s 250 of the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. The focus is on whether the end sentence is within the available range. Consistent with the rule of law, and the requirement for rational and compelling reasons in Sena v New Zealand Police in relation to conviction appeals, I consider it self-evident that an unreasoned sentencing decision will require an appellate court to undertake the sentencing exercise afresh.

I read his Honour in that last sentence to be saying that, on a sentence appeal, a failure to give decent reasons automatically translates into an error in the sentence imposed.  The significance of that is that that very first step of an appeal – demonstration of error – will already be met.  That means that the appellate court can simply proceed to substitute its own views (in accordance with general appeal principles under Austin Nichols).

His Honour said something similar (perhaps a little softer) in Papa v Police [2019] NZHC 1309:

[5] Under s 250 of the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. The focus is on whether the end sentence is within the available range. Ms Lim, for the Police, is correct that this is not an appeal against discretion, as the Court of Appeal found in Palmer v R (no relation). If, on appeal, I am satisfied there is an error in the decision below then I must allow the appeal if I consider a different sentence should be imposed. That is consistent with the Supreme Court’s recent judgment of Sena v Police applying the Austin Nicholls [sic] approach to conviction appeals. I consider the requirement for reasons, and the rule of law itself, means an unreasoned sentencing decision will require an appellate court to undertake a sentencing exercise afresh. Absence of reasoning is highly likely to be an error.

I am not convinced that Sena v Police can be applied directly to sentence appeals.  This is for three overlapping reasons (and I’m not convinced the first two aren’t just the same reason said in two different ways):

First, the statutory context is different.  Section 232(2)(b) means appeals can be permitted in situations where there has been a process error – a judge didn’t set out all the reasons that they really should.  And in Sena the Supreme Court set out what those shortcomings might look like.  But s 250(2)(b) seems aimed at outcome: error in the sentence imposed.  Admittedly, it is error “for any reason”, but that broad term is still brought down to earth by the words that follow: “the sentence imposed”.  It follows that some care would need to be taken with translating Sena‘s reasoning over to sentence appeals, and doing so would need to account for the difference in statutory language.  With respect, Palmer J’s reasoning does not do that.

Second, and building on the first reason, while Palmer J is absolutely correct that judges should show reasons in sentencing that does not mean that a failure to do so necessarily translates into something that matters on appeal.  As a judgment, Sena is a link explaining why a failure by a judge to fulfil the duty to give reasons for a verdict will translate into an appeal under the relevant section of the Criminal Procedure Act 2011.  But we don’t have that explanation (from the Supreme Court or from Palmer J) linking the failure to give reasons for a sentence to the relevant section for sentence appeals.  As the first reason (above) sets out, s 250 doesn’t seem to be fertile ground for recognising that type of error anyway.

Third, we already have the Court of Appeal indicating that it is the end sentence that counts, even when the process is absolutely abysmal.  For example, in R v S (CA64/06) [2007] NZCA 243, Hammond J said this about a sentence that was near impossible to unpack:

[79] The first point to be made here is that this Court has emphasised on a number of occasions that Judges must today “do the arithmetic”. That is they must indicate, in some manner which is amenable to review, where they started from and how they got to the sentence actually imposed. For instance, in this case — we cannot tell from the face of the sentencing notes — it is possible that the Judge adopted a higher starting point than 12 years and then discounted it somewhat. But we do not know.

Despite those errors, the Court of Appeal went on to demonstrate that there was no error in the sentence imposed.  If anything, it was generous.  So, it declined to intervene. That’s just one case but there are many more.  I only picked it because it was Hammond J, and I’ve always liked the “do the arithmetic” quote.  The point is, it’s substance, not process, that matters on sentence appeals.

None of this is to excuse sentencing judges from giving reasons.  They should.  They have to.  It’s part of judging.  They should be criticised when they don’t give adequate reasons.  But it doesn’t mean there is an error in the sentence imposed.  By itself, a failure to give adequate reasons in a sentencing decision should not be an error that automatically opens the door to the appellate court’s substitution of its own sentence.

A failure to provide reasons will, however, often mean that an appellate court is more likely to find error in what little a sentencing judge has bothered to articulate.  If a sentencing judge hasn’t explained why there is only a 10% discount for remorse then it is more likely that an appellate judge could decide that there was in fact an error in the sentence imposed.  The sentencing judge will have lost their best opportunity to have their sentence upheld.

And finally, what do I really know anyway?  Maybe there is a good basis for applying Sena v Police to sentencing appeals.  Justice Palmer is a hell of a lot smarter than I am.  If other judges pick it up and run with it, then maybe we’ll get a longer explanation at some point.

In the meantime, if we could stop changing appellate tests for everything that would be great.

A draft Court of Appeal Practice Note regarding legal tests on appeal

  1. This Practice Note takes effect from 10 June 2019.
  2. The Court will revisit the test on appeal in every case.
  3. Written submissions in all cases should address the Court on why the test on appeal should be changed.
  4. When advocating for a type of appeal, counsel should bring to the attention of the Court any contrary authority so that the Court can overrule said authority.
  5. The Court will change the test on appeal for any particular type of appeal not less than once every eighteen (18) months.
  6. Any appeals brought on the grounds that a lower court misapplied a test on appeal are themselves to be treated as an appeal against a discretion if filed in an odd-numbered month and as a general appeal if filed in an even-numbered month.
  7. Clause 6 is subject to Clause 5.
  8. There is a rebuttable presumption that, in any instance where Parliament has described an appeal as an appeal against a discretion, this is to be treated as conferring a right of general appeal.
  9. Appeals from the Court Martial Appeals Authority will be treated as general appeals, except in instances where a general appeals in which case they are appeals against a discretion.
  10. Advantages held by the first-instance judge will be emphasised or diminished as the justice of the case requires.

A short report from the launch event of the Aotearoa Legal Workers Union

ALWU
They have a sign.

Last week I read about the formation of the Aotearoa Legal Workers Union and decided to go along to its launch event so I could write about it.  I figured my opening line would be something like this:

There’s an old labour movement tactic where members from one group take up positions of power within another and subvert it to their will.  It’s known as (and I’m not making this up) boring from within.  The launch event of the Aotearoa Legal Workers Union went in a different direction, but I can assure you it was still boring from within.

Having attended the Auckland launch event, though, I don’t think it’s fair.  It was… something. I don’t think the Union quite knows what it is yet or whether it will be a long term success, so neither do I.  But the people running it seem to have a clear idea of what they want to do, and it was interesting to see the beginnings of something that has the potential to go far.

It was held at the Pioneer Women’s Hall in Freyberg Square and it was chaired by a pioneering woman.  Hayley Coles is formerly of Simpson Grierson and presently interim president full-time out of the Aotearoa Legal Workers Union.  The last lawyer to start a union was Jordan Williams.  Without meaning to damn with faint praise, Hayley Coles is not Jordan Williams.

She outlined a clear, concise vision of the short to medium term goals of the union.  A campaign to ensure law firms comply with the Minimum Wage Act.  The law is clear, timesheets can be checked, and people know what they get paid.  Other goals will come later, and will be determined by membership at an AGM in August.  In the meantime, this is an issue with which they can engage with law firms.  In doing so, they can speak softly with the big stick of the Minimum Wage Act looming in the background.  There followed a very capable Q & A.

She spoke to maybe 40 attendees (among which was one of her Majesty’s counsel).  Presumably changing working conditions so that lawyers can leave work for a 5.30pm meeting is one of the long-term goals.  Those attending were mostly young.  I don’t know how many, like me, went along just to see what happened.  I was wanting managing partners of big law firms to appear on the scene like Team Rocket and have some sort of confrontation.  The most drama we got was a microphone that kept dropping out.

The Union calls itself ALWU – pronounced as its spelled, and sounding for all the world like an Ikea side table.  An announcement that it presently has over 330 members got a round of applause.  They’ve met or will meet with some big law firms – part of the tête-à-tête offensive that is their overall strategy.

If everything seemed very tame then the guest speaker – barrister Helen White – brought some fire and brimstone with weirdly out of place political comments.  Unions are good, and the leader of the Opposition’s recent comments to the contrary were “completely ridiculous”.  “If the leader of the Opposition doesn’t get it then he’s living in the past,” she announced.  The room didn’t quite know what to make of that.

But if anything that served to emphasise ALWU’s apolitical or, at least, not overtly political nature.  Ms Coles and her colleagues didn’t come across as motivated by that at all.  Who knows where ALWU’s membership will take it.  At “worst” it will settle for being a slick, yo-pro advocacy group.  I don’t think that’s what it wants to be, but it’s a possible future.  The goals were bigger.  There was talk of collective bargaining.  With whom was not clear.  But there are ambitious timeframes which depend on getting a large membership.  At one point, in response to a question, Ms Coles referred to beginning collective bargaining later this year or early next year.

There seems real value in the existence of the ALWU.  That value comes from its independence.  The Law Society has recovered reasonably well, I think, from its position on the back foot in 2017 and 2018.  But part of being an industry regulator is being a punching bag for all and sundry.  I thought Dame Silvia Cartwright’s report was excellent.  Rightly or wrongly, the Law Society has to walk the middle path – doing as much as it can in valuable initiatives like a new National Standards Committee on bullying and harassment, while not actively calling for the reintroduction of the guillotine when it comes to some of its law firm members who worship the billable unit.

There are alternatives.  There is a dynamic Te Hunga Rōia Māori o Aotearoa who pakeha practitioners like me never appreciate enough.  Auckland Women Lawyers Association is doing good stuff.  Others are less active.  ADLS trades on the name of its heyday but is the society equivalent of a small town trying to survive a newly-built motorway bypass.

But the ALWU has the potential to occupy a new space in legal associations and societies in New Zealand.  It will have to be accountable to its members, and presumably common decency will prevail.  Add to that a tentativeness stemming from the fact the poor people fronting it are sticking their heads above the parapet.  In theory, though, the ALWU’s spade-calling skills will be reasonably strong.  Stronger than NZLS’ in any event.  And it can complement other organisations and do things that they can’t.

The launch event served to emphasise that the ALWU is full of serious young lawyers, with serious ideas.  I liked it.  I struggle to get excited about it because I’m one of the privileged types that is well served by the system and am starting to age into higher salary bands.  But I liked it.  I think they deserve to be taken seriously.

In the meantime though, they’ll also have to put up with me making memes like this.

Drake meme

Nine of the best puns in Otago law student Honours dissertations

Few things make me as proud to be an Otago graduate as the tremendous puns in the titles of Honours dissertations.  When you slave all year on your dissertation your reward is getting to come up with a snappy title.

From the small and perfectly formed, to those that sacrifice all semblance of logical sentence structure to land a payoff few think worth the effort, all are excellent.  Here are nine of my favourites.

Knowing Where to Draw the Line: Assessing the Protection of Fine Art from Censorship in New Zealand by Nick Gillard

Can I help you with that? Assisted Suicide in New Zealand by Sean McIntyre

Has the Supreme Court Turned and Waved Goodbye to the Essence of the New Zealand Securities Regime? by Evan Jones (assuming that you know about the Supreme Court’s decision in Hickman v Turn and Wave [2012] NZSC 72, [2013] 1 NZLR 741)

Are the fat cats pouring their own milk? Executive remuneration in listed companies in New Zealand by Nicholas Blumsky-Gibbs

Contracting the New Delhi Belly: Responding to the Practice of International Surrogacy by Annika Tombleson

Between a Rock and a Hard Place: Does the Treaty of Waitangi Provide an Avenue for Iwi to Assert Legal Interests in Minerals in the Crown Owned Conservation Estate by Amy Douglas

Trying Times: The Right to a Fair Trial in the Changing Media Environment by Amy Elvidge

Unzipping Our Genes for Insurers? Regulating the Use of Genetic Information in Insurance by Katharine Reynolds

Making a Killing: A separate corporate manslaughter offence for New Zealand? by Aaron Sweet

Finally, I should add that the list is only nine and not ten because on balance this one has Not Aged Well (if, indeed, it was ever appropriate…).

 

Coroners’ powers to prohibit publication of the name of a deceased person

Introduction

Coroners have powers to make non-publication orders under s 74 of the Coroners Act 2006.  It is not clear whether those powers extend to suppressing the name of the deceased.  The words of the section do not confer an express power to do so.  Coroners exist to make findings on deaths and to allay suspicion.  Publishing that someone has died seems pretty fundamental to that task.  Against that, it is not hard to imagine a rare but compelling case where suppression of the deceased’s name should be considered: where someone else’s life is threatened by the publication, for example.

In this piece I argue that coroners have a power that can, in effect, prohibit publication of the name of the deceased.  The power exists because a coroner may order non-publication of evidence.  If evidence in respect of the deceased’s name is suppressed, then the name cannot be made public as a consequence.

Of course, even though s 74 confers the power there must still be grounds to justify the use of the power in any particular case.  The orthodox approach to issues of non-publication will involve a fine grained weighing of reasons for suppression as against open justice and freedom of expression.  At the end, I comment a little on what evidence might be necessary for a coroner to suppress a deceased person’s name.  The main point, though, is simply that the terms of s 74 confer the effective power to prohibit the publication of the name of a deceased person.

Although there is some looseness of terminology, this article uses the terms “suppressed” and “subject to a non-publication order” interchangeably.

The framework

Coroners’ powers to prohibit publication are set out in s 74 of the Coroners Act 2006 (Act).  That section provides:

74           Coroner may prohibit making public of evidence given at any part of inquiry proceedings

If satisfied that it is in the interests of justice, decency, public order, or personal privacy to do so, a coroner may prohibit the making public of—

(a)          any evidence given or submissions made at or for the purposes of any part of the proceedings of an inquiry (for example, at an inquest); and

(b)          the name, and any name or particulars likely to lead to the identification, of any witness or witnesses.

The definition of “make public” is found in s 73 of the Act.  It refers to means of general dissemination such as newspapers, television and the internet.  It is important to note that, even if a s 74 order is made, a coroner will still use a deceased’s name in their written findings and the official forms connected with the determination.  The prohibition is only on a person making that information public in the ways contemplated by s 73.

The application of s 74 is governed by Whata J’s guidance in Gravatt v The Coroner’s Court at Auckland [2013] NZHC 390, [2013] NZAR 345 at [43]:

In my view, therefore, the proper observance of freedom of expression (and open justice) demands a three step threshold inquiry. First, there must be express statutory authority to suppress. Second, the authority must be, where possible, interpreted and exercised consistently with freedom of expression. And third, even where those two qualifying conditions exist, any discretionary infringement of that freedom must be justified. The failure to undertake any of these three steps will make the decision to suppress amenable to review.

(footnotes omitted)

The question of suppressing the name of the deceased arises in respect of the first step of the Gravatt three step threshold inquiry.  Is there express statutory authority to suppress?  On its face the wording of s 74 does not refer to prohibiting publication of the name of the deceased.  Clues point in both directions.  A coroner may prohibit publication of evidence, which will in almost every case include the name of the deceased.  However the section also refers expressly to prohibiting publication of the names of witnesses, and is then silent on prohibiting the name of the deceased.

Current practice

Coronial practice to date has tentatively favoured the suppression of deceased’s names, although the practice is not widespread.  There is also significant debate among coroners whether the power exists.  Cases in which this has occurred include Re C CorC Palmerston North CSU-2009-PNO-260, 23 July 2012; Re C CorC Wellington CSU-2008-WGN-089, 25 July 2012; Re M CorC Wellington CSU-2008-WGN-754, 14 January 2013; and Re P CorC Palmerston North CSU-2012-PNO-310, 4 December 2012.  For the most part, these cases have assumed a power to suppress with no analysis.  Coroners have referred broadly to the fact that suppressing a deceased’s name should be something done only rarely.  Before engaging further three examples where coroners provided more detail for their decision may be instructive.

In Re R CorC Hastings CSU-2013-PNO-463, 10 December 2015 Coroner Devonport ordered that the name of the deceased be subject to an order under s 74.  Coroner Devonport’s reasons encapsulate the traditional view:

[23] … Mr R’s name and the fact that his death was a suicide must be “evidenced” in order for me to be able to make a s 74 prohibition order in respect of them.  Mr R’s name is found in the evidence ie the Statement of Identification of Mr R is evidence that I have accepted as part of my inquiry into his death.  In contrast to his name, the fact Mr R’s death was self-inflicted is not evidence.  While there are statements and evidence that describe how Mr R [took his life], my finding of suicide is not in any evidence.  It is a finding that I have made.  Therefore while I have authority to prohibit the making public of Mr R’s name, I do not consider I have authority to prohibit the fact that I have found Mr R’s death to be self-inflicted.

Coroner Devonport went on to find that the psychiatric risk faced by Mr R’s brother, who bore feelings of guilt in respect of Mr R’s death and had provoked a serious risk of self harm, was sufficient to justify an order under s 74 prohibiting the publication of Mr R’s name.

In the case of Re Krystal CorC Auckland CSU-2008-AUK-695, 9 May 2013 Coroner McDowell made orders under s 74 of the Act prohibiting publication of a range of matters some of which meant that in effect the surname of the deceased was also prohibited from publication.  In particular at [76] Coroner McDowell prohibited “the names of Krystal’s siblings and any particulars that may lead to the identification including Krystal’s surname”.  The effect of this is that at least part of the deceased’s identity was prohibited from publication.

This decision demonstrates how suppression of evidence –which is squarely permitted by s 74 – has the effect of consequentially suppressing other matters, such as the name of the deceased.  The same thing happens in criminal cases where a victim of sexual offending has automatic suppression.  Where the victim is related to, or shares a surname with the offender which means they could be identified, the offender’s name cannot be published, even if the offender does not have suppression in their own right.

The third example is Re Buckley CorC CSU-2017-CCH-145, 20 March 2017.  Coroner Elliott considered whether s 74 provided authority to suppress a deceased’s name.  Coroner Elliott did not have to decide the point because his Honour determined there was insufficient evidence presented in support of the application.  Nevertheless, the Coroner set out competing arguments as to why and why not s 74 extends to suppression of the deceased’s name:

[29] There are some arguments against the proposition that section 74(a) provides a basis for prohibiting publication of the name of the deceased:

(a)          There is a public interest in identification of the names of those who died and these names are a matter of public record pursuant to the Births, Deaths, Marriages and Relationships Registration Act 1995.

(b)          If Parliament had intended that a coroner should have power to prohibit publication of the name of the deceased this would have been specifically referred to in section 74.

(c)           The identity of the deceased is a finding made by the coroner. The identity is established by evidence but the evidence is not conclusive of identity – it requires a formal finding. Although section 74(a) refers to ‘evidence’ it does not refer to, and therefore does not authorise, an order prohibiting publication of a coroner’s finding as to identity.

[30] There are also arguments in support of the proposition that section 74(a) provides a basis for prohibiting publication of the name of the deceased:

(a)          A coroner’s finding as to identity must be based on evidence the coroner has received. A coroner is therefore entitled to make an order prohibiting publication of evidence relating to the identity of the deceased, as long as the criteria set out in section 74 are met. Although the consequence of this is that a part of the coroner’s finding is prohibited from publication, this would not undermine the legitimacy of the order.

(b)          … It would be anomalous if a coroner did not have the jurisdiction to address the possibility of harm to a family member arising from publication of the name of a deceased whose death is before the Court.

(c)           The Criminal Procedure Act 2011 contains provisions under which restrictions on disclosure or publication may be imposed where the physical or mental health of a person will be put at risk if publication were to occur. … It would be anomalous if the name of a defendant could be suppressed where publication may result in harm to an innocent third party, but the name of a deceased person could not.

(footnotes omitted)

Assessment of the arguments

In Buckley Coroner Elliott did not indicate which of the two arguments he favoured.  However in my view the arguments in favour of the proposition that s 74(a) provides the basis for prohibiting publication of the name of the deceased stems principally (and perhaps exclusively) from the “suppression of evidence” point (set out at [30](a) in the quoted passage above and in the quote from Coroner Devonport’s finding in Re R).

By contrast, neither of the points at paragraphs [30](b) and [30](c) seem particularly persuasive.  Both amount to reading in a power to suppress a finding, when that power does not exist on the plain words of the section.  Appeals to common sense or necessary implication cannot, by themselves, create a power of suppression.  Inferior courts can prevent abuse of their own procedures, but they cannot accord themselves powers which have not been bestowed by Parliament (see generally: McMenamin v Attorney General [1985] 2 NZLR 274 (CA)).  However nice it would be to have an express power to suppress names, it is clear that s 74 does not afford one directly in the same way the Criminal Procedure Act 2011 confers a power to suppress witness or defendant names.  The fact that the Criminal Procedure Act 2011 has such a power does not mean as a matter of logic that the Coroners Act 2006 should be read as having such a power.  Coronial reliance on analogies to powers of name suppression in the criminal jurisdiction has been discouraged recently in Stuff Ltd v Coroner’s Court at Palmerston North [2018] NZHC 2556 at [47].

It follows that the argument in favour of a coroner’s power to suppress the identity of a deceased rises or falls on the fact that it is evidence before a coroner.  While this is a fairly narrow basis, I think it is a sufficient one.  That is especially so when it can be demonstrated that the counterarguments carry little persuasive weight.

Counterarguments are not persuasive

The first possible counter argument identified by Coroner Elliott at [29](a) of Buckley was that there is public interest in the identification of the names of those who died and that also these names are a matter of public record pursuant to the Births, Deaths, Marriages and Relationships Registration Act 1995 (BDMRR Act 1995).  There are two arguments there.  In relation to the first, the undoubted public interest in knowing the names of those who died is a matter to weighed in the balancing test under steps two and three of the Gravatt test.  At step one all that is asked is whether Parliament put the tool in the coronial toolbox; not whether the tool should be used in an individual case.  It does not really go to whether or not the power to suppress names exists.

In relation to the second argument at [29](a) – the fact that deaths are recorded on the BDMRR Act 1995 – again this is undoubtedly correct.  But a s 74 order does not mean that those entries on the Register will have to be suppressed.  There is a requirement for the Register to accurately list the names of everyone who has died in New Zealand (BDMRR Act 1995, s 34).  That provides statutory authority for doing so, even if a s 74 order covered this action.  In any event, it is by no means clear that an order under s 74 could extend to cover inclusion of a name on the Register.  The Register can only be searched by a Registrar (BDMRR Act 1995, s 74).  That means the Register is not publicly accessible in a way that means it falls within the definition of “make public” in s 73 of the Coroners Act 2006.

A related argument is that recording a deceased’s name on the Register lets the cat out of the bag as far as suppression goes.  That is correct in the sense that the fact of a death will be able to be discovered.  But an order under s 74 will still have a purpose.  It will mean that nobody can publish a link between the name of a dead person and a particular set of coronial findings.  That still serves a useful function even if the Register names the deceased, because the name by itself does not link to the coronial findings.  In this way, the fact of publication on the Register does not bear on the question of whether or not a coroner has the power to suppress.

A parallel example can be given.  Coroners are frequently required to suppress the means of a self-inflicted death (indeed the Act prima facie grants this suppression).  This is normally based on a public health justification to prevent copycat acts.  When that suppression exists nobody can make public that information in connection with a death that can otherwise be reported.  But the suppressed means of death is frequently published in other forums.  For example the Chief Coroner’s annual suicide statistics press release lists the various ways in which self-inflicted deaths have occurred over the preceding year.  The important point here is that suppression plays a role in separating the subject of the suppression from the rest of the coronial findings.  Simply because information that is suppressed is published in some other forum (be it the name on the Register of Deaths or the means of death in suicide statistics) suppression still serves a useful function.

The next counter argument identified at [29](b) of the Buckley ruling is that if Parliament had intended that a coroner should have power to prohibit publication of the name of the deceased this would have been specifically referred to in s 74.  But if one accepts that the name of the deceased forms part of the evidence then it is unsurprising that Parliament has not expressly referred to the name of the deceased as a matter that may be suppressed in the wording of s 74.  This is because Parliament has already effectively done so by using the term “evidence”.

On the other hand the wording of s 74(b) refers to prohibiting publication of the names of witnesses.  Can Parliament be taken to have turned its mind to whose identities may be of the subject of non-publication orders, and deliberately excluded the name of the deceased from that list?  In my view, the answer is no.  The express reference to suppressing witness names is a necessary supplement to the power to prohibit publication of evidence.  That is because witnesses at coronial inquiries can give evidence about matters relating to the death but the names of those witnesses will not necessarily be evidence themselves.  For example, a pathologist may give evidence of the cause of death in that pathologist’s expert opinion.  The content of that evidence will be evidence which may be subject to suppression under s 74(a).  But without s 74(b) there will be nothing to prohibit the publication of the name of the person who gave that evidence.  Therefore s 74(b) is necessary in order to ensure that a coroner can prohibit both the content of the evidence in the identity of the person who gave it.  In contrast, it is clear that there is no special need to prohibit the name of the deceased, because the deceased is not going to be giving evidence at the inquiry.  The deceased’s identity will only be found in the evidence given by other persons.  Therefore the fact that Parliament has included an express power to suppress the names of witnesses should not be taken as an expressio unius type argument where Parliament has expressly contemplated excluding the name of the deceased from the powers of prohibition.  To the contrary it simply confirms that the name of deceased will only be found in evidence and therefore the power to suppress evidence of a deceased’s person’s name falls squarely within the terms of s 74(a).

Paragraph [29](c) of Buckley bases the third argument against suppressing the identity of the deceased on the fact that the identity of the deceased is a finding made by the coroner.  Although s 74(a) permits suppression of evidence, it does not permit suppression of findings.  I agree.  Re R, quoted above, is an example of this.  The finding that a death was a suicide is a separate finding.  It is a conclusion by the coroner – it is not found anywhere in the evidence.  And s 74(a) only gives the power to suppress evidence.

But where a finding overlaps with evidence, a s 74 order in respect of evidence will have the consequential effect of prohibiting publication of the finding.  This is not a surprising conclusion; the coronial regime operates successfully with the effective suppression of findings all the time.  The cause of death or the circumstances of death are frequently suppressed where that cause of death is self-inflicted (due to the operation of s 71 of the Act).  It does not seem to undermine the coronial regime that one of the key matters that a coroner has to determine and make a finding about is not made public.  Similarly, coroners suppress matters that form parts of the circumstances of death frequently: for example, the identities of persons who may have inadvertently contributed to a death.

So, while it is correct to say that s 74 does not permit suppression of findings outright, findings can still be consequentially suppressed where the underlying evidence is subject to a non-publication order.  The fact that the name of the deceased is a “finding” does not confer immunity from non-publication, where the evidence underlying it is subject to non-publication.

Conclusion on power to make non-publication order

It is important to bear in mind what a coronial non-publication order does.  It does not render the name of the deceased a secret that will be stricken from the record, never to be used again.  The name of the deceased will still be in the written coronial finding.  The name of the deceased will be known to the family and any interested parties.  The name of the deceased will be provided to the Secretary of Justice and included in the requisite forms under the Act.  The name of the deceased will be placed on the Register of Deaths.  And indeed the finding can be disseminated person to person, as long as it does not contravene the definition of “make public” in s 73 of the Act.  All a non-publication order does is prevent mass dissemination.

The name of the deceased will be found in the evidence.  Section 74(a) is plain on its face that evidence may be the subject of an order under s 74.  In turn that will mean that a finding of the deceased’s identity will not be able to be published, notwithstanding that the finding itself is not the subject of a non-publication order.

Next steps in Gravatt

Of course, simply because a coroner has the power to make a non-publication order in respect of the evidence of a deceased’s name, it does not follow that such an order is appropriate in every case.  The traditional cautions and high evidential threshold necessary for a non-publication order will apply.  Indeed, it may be even more of an uphill battle to convince a coroner that a deceased’s name should be suppressed given that identifying the deceased is a core part of the coroner’s role.  The remarks of Kós J (as he then was) in Matenga v Coroner’s Court at Dunedin [2014] NZHC 2994, [2015] NZAR 289 at [8] are apposite:

it is an essential feature of the Coroner’s inquest process that it work in public, so that the community is fully informed of circumstances that led up to and were causative of the death being inquired into. An order under section 74 should be exceptional.

Steps two and three of Gravatt involve their own detailed inquiries as to whether non-publication is warranted given the types of reasons advanced by an applicant (step two) and the evidence in support of those reasons (step three).  Particularly at step three, there will be a need to show that there is a factual foundation justifying departure from the principles of open justice in this particular case.

The coronial function in respect of allaying fears of the community and of being seen to be an independent investigation into a death mean that publication of a deceased’s name and the fact that someone has died will be a vital part of the coronial role.  It follows that in respect of prohibiting publication of the name there is going to need to be compelling evidence why suppression is justified.  It may well be that only in a case such as R, where there was expert evidence attesting to a realistic and imminent risk of self harm by another person, that an order for non-publication of the deceased’s name could ever be justified.

Conclusion

Coroners have the power to prohibit the publication of evidence.  That includes evidence establishing the identity of a person.  If that evidence is suppressed then the consequential effect is that a coroner’s finding as to identity cannot be made public.  While this does not constitute an express power to prohibit the finding of identity per se, it will amount to the same thing in practice.

Nonsense on Twitter – week of 1 April 2019









 

The Reweti shuffle, or, a plea for a principled fudge

Disclaimer

It must be close to indisputable that, in most cases, avoiding a custodial sentence for a young person is a Good Thing.  Efforts to make that happen should be applauded, not criticised.  It is in that spirit that the two cases I discuss should be viewed.

Intro

In sentencing, two years’ imprisonment is the goal.  Two years’ imprisonment is home detention range.  If you can’t get a sentence down that far, then a custodial sentence can’t be converted to home detention.  Parliament says no, in the form of s 15A(1)(b) of the Sentencing Act 2002.  But if you could just find a way to two years or shorter, then all things are possible.

The trouble is, there’s a whole lot of case law about sentencing.  Precedent is a difficult thing to shake, and as a judge your job is to apply the law.  This piece is about the latest judicial contortion that two High Court Judges have used to get to two years’ imprisonment.  And while judicial contortion is the finest of spectator sports – this particular new trick comes with dangers.  What follows is a cautionary tale.

The Reweti shuffle

Step forward Reweti v R [2018] NZHC 809 and Simon France J.  Mr Reweti was an offender for whom home detention would have had a lot to offer.  As a brief side note, Reweti is a really interesting decision for his Honour’s framing of the sentencing in paragraph [2] where his Honour expressly invoked concepts of systemic racial disadvantage:

[2] Mr Reweti fits within a group concerning whom there is considerable present concern. He is a young Māori man, presently aged 18 years, already sentenced to prison. He came to the sentencing with some previous offences (which had been met with supervision) and alcohol issues which were instrumental in the most serious of the present offences – the aggravated robbery of a service station. He is one of a family of 13 who all live at home, and his mother is supportive of him. As noted, the home and the environment were assessed as suitable for a home detention sentence.

His offending was serious, though.  The District Court Judge had sentenced Mr Reweti to two years and nine months’ imprisonment.

On appeal, Simon France J reduced uplifts for other offending on the basis of totality, and afforded a greater discount for youth and personal circumstances.  I am skipping over these because the focus is then on the maths.

The elements that Simon France J had to play with were as follows:

Starting point: Four years’ imprisonment

Discount for personal circumstances: 30%

Guilty plea discount: 25%

Guilty plea discounts are normally applied as the final step in a calculation.  So in this case, one would normally expect to take a 30% discount from the four years, and then take a further 25% from that result for the guilty plea discount.

That’s more than “normal” though: it’s law.  The Court of Appeal said so in Hessell v R [2009] NZCA 450, [2010] 2 NZLR 450 at [21]:

[21] A discount for a guilty plea is to be seen as a discrete mitigating factor. That is consistent with s 9(2)(b) of the Sentencing Act. The discount is provided as the final step in the sentencing process.

[22] In adopting that view, we have followed the approach of the United Kingdom’s Sentencing Guidelines Council and the Law Commission’s draft. This approach will be familiar to most trial judges, as it was recommended by this court in a number of recent judgments: see, for example, R v Fonotia [2007] NZCA 188; [2007] 3 NZLR 338 at [50]- [51] and R v Walker [2009] NZCA 56 at [18]- [20]. Those judges accustomed to bundling all mitigating factors together will need to change their practice. The suggestion in Taueki at [44] that the discount for an early guilty plea should be “from the starting point” should now be read subject to this guideline.

The Supreme Court later had Things To Say about this decision, but not on this point.  We’ll come back to the Supreme Court decision in Hessell a little later on.

Right, enough set up, time for the Reweti shuffle and over to Simon France J to teach you the moves:

[21] A discount of 30 per cent, together with the agreed guilty plea discount of 25 per cent, produces a figure around 22 to 25 months. The exact outcome turns on whether one rounds fractions up or down, and also more significantly on when the guilty plea discount is applied.

[22] To explain the latter, the traditional approach is to make all the other adjustments, and then apply the guilty plea discount at the end. The source of that methodology is Hessell v R in the Court of Appeal. While it provides consistency, it can have unintended effects in a particular case. To take a simple example here, if the appropriate discount for youth were 25 per cent, then one might think a reduction from four years’ of 25 per cent for youth and other factors, and 25 per cent for the guilty plea, would produce a sentence of two years’ imprisonment. However, applying the Hessell methodology, the analysis is four years down to three’ and then the guilty plea discount attaches to that reduced figure, leaving a sentence of two years and three months.

[23] The Sentencing Act does not suggest a reduced impact for the guilty plea credit as opposed to other matters of mitigation. The Supreme Court in Hessell noted the Court of Appeal approach, and recognised its value in terms of consistency and transparency but did not endorse it as mandatory. Rather, what matters is a:

call for evaluation by the sentencing judge who, in the end, must stand back and decide whether the outcome of the process followed is the right sentence.

[24] Consistent with that, I observe here that if the only matter standing in the way of the availability of home detention is whether the guilty plea discount is applied at the same time as other discounts or afterwards, then the evaluation must be to apply it at the same time to enable “the right sentence” to be imposed. In the present case, 55 per cent (being 30 per cent plus 25 per cent) applied at the same time leaves a sentence of 22 months. Applied sequentially the sentence is 25 months. Accordingly, I intend in the present case to apply the discounts as a global figure.

(footnotes omitted)

Let’s get a slow motion replay of that!

I have two options.  The one that is applied in every other case, or the one that gets you a slightly lower sentence.  But, doesn’t the Court of Appeal in Hessell say you apply the guilty plea discount as the final step.  Yes, it does.

To get around that, Simon France J claimed the Supreme Court in Hessell backed him up.  But I don’t think it did.  The Supreme Court used the words that Simon France J quoted, but the Supreme Court wasn’t talking about the timing of the guilty plea discount.  It was talking about the percentage discount to be given for a guilty plea discount.  That was the issue in Hessell.  That can be seen from these paragraphs from the Supreme Court’s decision in Hessell just before the line that Simon France J quoted in Reweti:

[73] There is no objection in principle to the application of a reduction in a sentence for a guilty plea once all other relevant matters have been evaluated and a provisional sentence reflecting them has been decided on. Indeed there are advantages in addressing the guilty plea at this stage of the process (along with any special assistance given by the defendant to the authorities). It will be clear that the defendant is getting credit for the plea and what that credit is. This transparency validates the honesty of the system and provides a degree of predictability which will assist counsel in advising persons charged who have in mind pleading guilty.

[74] But, as we have emphasised, the credit that is given must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case. Consideration of all the relevant circumstances will identify the extent of the true mitigatory effect of the plea.

And, even if you choose to take the Supreme Court’s “right sentence” encouragement as going wider than the matters that were truly under consideration in Hessell, then you have to face the consistency point.

The vast majority of sentencing decisions do apply the guilty plea discount as the final step because that’s the understanding from Hessell.  And, as Reweti demonstrates, the timing with which guilty plea discounts are applied does make a difference to sentence.  It is not ideal that the process by which sentences are calculated can vary between judges.  Two identical offenders could get different sentences simply because a judge chose to depart from established sentencing methodology in a particular case.

Why is that in Reweti it is permissible to temporarily step outside the rules of the game?  This was a question that simply must have occurred to Simon France J.  At footnote 8 of his decision in Reweti Simon France J noted:

I observe that if the “rule” were to take the guilty plea discount off the adjusted starting point like every other mitigating factor, transparency and consistency would be equally achieved.

True.  But by playing with the timing of the guilty plea discount, the technique in the judgment undermined transparency and consistency.  It’s hardly a consolation to say “oh if only we all did it the same way, then we’d be consistent” when you’re the one acting inconsistently with every other sentencing judge.

The Reweti shuffle comes with no guidance about when it can or cannot be used other than it is available to ensure the “right” sentence.  What was it about Mr Reweti’s case that made it right to step away?  How will we know in future cases when to use this technique, and when not to?  How does it interface with the statutory imperative to impose the least restrictive sentence?

And just this week, another Judge has followed Simon France J’s technique – again for a “worthy” case but without recourse to explanation about why it could be used in this case but not any other case.  In R v Kokiri [2019] NZHC 501 Jagose J used the Reweti shuffle to get his sentence down to under two years’ imprisonment:

[38] The traditional approach in sentencing is to make any other adjustments to the initial starting point, and then to apply the guilty plea discount. Such an approach is consistent and transparent, but not mandatory. Doing so in your case:

(a) increases your initial 45-month sentence to 46 months by the one month for offending while on bail,

(b) then reduces it to 34-35 months by the 25 per cent discount for your personal factors, and

(c) reduces it again to 25-26 months by the 25 per cent discount for your guilty plea.

[39] Subject to roundings, the end result would be a little over two years’ imprisonment. That would disqualify you for any sentence of home detention. Another approach would be to apply the two 25 per cent discounts together to the longest period of imprisonment identified for you. Such would reduce your 46-month sentence to 23 months – just under two years’ imprisonment, qualifying as a short-term [sentence] of imprisonment. Given that choice, I must stand back and decide “whether the outcome of the process followed is the right sentence”.

(footnotes omitted)

I have taken the footnotes out, but Jagose J expressly cited Reweti v R as authority for what he did.  No further explanation was given.

Principled fudges

What I am coming to is the need for principled fudges in the judicial system: those techniques where everyone knows what the judge is doing but (and this is important) it’s okay if the judge gets away with it.

With respect, the Reweti shuffle is not a principled fudge.  It risks corrosion of more important principles of consistency in sentencing that turn out to be quite important and difficult to rearrange if they’re knocked over.  It’s not acceptable that we have two different approaches to sentencing.  Not for something like the timing of the guilty plea discount – where the difference is stark and one of timing, rather than subjective appreciation.  The inconsistency that comes from injustice is greater than any injustice from the application of a guilty plea discount as the final step of sentence.

The more principled fudge is to find greater discounts for other matters.  25% is the upper limit for guilty plea discounts, but personal discount factors are a matter for considerable flexible subjective appreciation.  In sentencing judges’ determined march for the two year goal, no one is going to complain too much if a discount for youth is 7.5% as opposed to 5%.  That falls squarely within the permissible discretion for a sentencing judge.

My personal favourite is where a sentencing judge surveys all personal factors – age, hardship, efforts at rehabilitation, remorse, whatever else you care to name – and then gives a global percentage discount for all personal factors.  This can hide any amount of generosity in order to get to two years’ imprisonment.  And the best thing about this trick is that it is near impossible to unpick on appeal.

Anyway, to the extent that this had a point it’s this: the Reweti shuffle is very entertaining in terms of judges doing their best.  It’s done for admirable goals but I don’t think it should catch on.  More principled fudges exist to secure the same ends.

 

UPDATE: the March issue of the New Zealand Law Journal has a different perspective on Reweti v R: see Luke Elborough “Sentencing in hard cases – just outcomes through a holistic approach” [2019] NZLJ 45.