Uncollected thoughts on Zhang v R [2019] NZCA 507

Guidelines
Barbossa and (and I had to look this up) Jack JJ

Who doesn’t like guideline judgments?

I don’t like guideline judgments.  I mean, I do.  But what I like even more are the judgments of the Court of Appeal *after* a guideline judgment.  The ones where the Court says “pffft nice try, losers, but what we really meant was this”.  I’m looking forward to those.

The Court of Appeal doesn’t like guideline judgments either.  Zhang v R [2019] NZCA 507 is a judgment written with a pencil taped to the end of a bargepole.  It’s an exercise in pre-emptive dread, knowing that words intended to afford flexibility and discretion will begin to ossify the second they go beyond Molesworth Street.  Throughout the judgment there are reminders to readers that sound increasingly desperate.  Just because the Court is suggesting some numbers and bands doesn’t mean you can’t sentence outside them.  Just because they put a number on a percentage discount doesn’t mean it couldn’t go higher.  Just because we’re the Court of Appeal you don’t have to do what we say.  It won’t work.  Like a tragically hip relief teacher, attempts to get down with the youth in the District Court won’t work.  It’s axiomatic that a guideline judgment becomes axiomatic.  The rote learners of this world, which include nearly all criminal practitioners on both sides, will be saying in a few months time that you can get a 30% discount for addiction, and that this is a band three/lesser role which means a start point of X years, period.  What began as a “one size fits all” judgment will shrink in the wash to become simply “one size”.

That’s a pity, because the judgment itself is a work of art.  Do you like signposting in writing?  This is signposting central.  Every point neatly divvied up into four sub-points.  Every outstanding argument is promised to be returned to, and its return heralded two paragraphs later.  I can’t remember the last time I was able to read a hundred page judgment in one sitting.  Even my meme-addled brain with a concentration span of approximately two seconds could follow along.  More of this please.  You’ll have got the vibe of the decision from the media release.  R v Fatu‘s bands are retained with adjustments.  There’s now a band five because band four was catching too many people.  Role can influence starting point, but not as much as pretty much every intervener wanted.  Personal mitigating factors are back on the table for serious drug offending (more, as Downs J would say, about this later).  And they’re back in a big way.  Around 30% is on offer for addiction, if you can prove it.  Add another 25% for guilty plea and the sentencing discounts on offer begin to look like they’re being offered by the Briscoes lady.

The High Court doesn’t normally like guideline judgments but they’re not allowed to say that out loud.  They might like this one given that it seems a paean to sentencing discretion.  On Friday when my matter got bumped from the chambers list without warning, I wandered into the neighbouring courtroom and watched what might have been the first post-Zhang first instance sentencing – a case called R v Cutler [2019] NZHC 2737 (promptly whacked up on Decisions of Public Interest).  It all seemed to work well enough.  Ten kilos of meth in an importation and distribution ring gets you approximately a seven year end sentence.  That would quite simply not have happened under Fatu.

Prosecutors don’t like guideline judgments too.  Perhaps that’s not meant to be said out loud either – this sense that somehow it’s cheating when the rules have been changed and people can get credit for things they didn’t used to get credit for.  I don’t know.  God forbid we’re churlish about a level playing field.  But it’s a case of worst instincts revealed sometimes. And it’s interesting to watch those thoughts being processed.  Maybe more on that at another time.

Anyway, I tell you who liked this guideline judgment: Brewer and Moore JJ.  Both of them are referred to as “very experienced criminal judges” (at [107] and [108]).

For my next trick, this Supreme Court precedent will disappear

The part of the judgment that stands as a triumph of the art of judgery is the section consisting of paragraphs [133]-[136].  The paragraphs are too long to reproduce in full here but they revolutionise/normalise class A drug sentencing by saying that personal mitigating factors can be awarded just as much in drug sentencing cases as any other case.  For my money that’s the most important way the judgment lowers sentences for meth offending.  Forget starting point; the Court just tinkered with the numbers and let you drop down a band if your role was a bit bystandery.  The real movement is giving you tens of percent sentence discounts for personal factors in drug offending.  The judgment in particular focused on large discounts for addiction, for mental health, and for social deprivation as part of its general freeing-up of personal mitigating factors in drug offending.  It could only do that by explaining how personal mitigating factors could sound strongly in drugs cases, when they previously never did.  Watch this.

In the past, you only got an exceedingly small discount for personal factors.  That was because of a consistent attitude by the Courts which culminated in a Supreme Court case called Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612.  The Court of Appeal noted that in Jarden the Supreme Court had said this (at [12] of Jarden):

As the Courts have repeatedly said, and as we emphasise again, in sentencing those convicted of dealing commercially in controlled drugs the personal circumstances of the offender must be subordinated to the importance of deterrence.

The Court of Appeal had a bit to say about deterrence elsewhere, but that’s for another day.  Here’s what the Court in Zhang had to say about Jarden:

[133] First, given the outcome in Jarden, we do not apprehend the Supreme Court to
have used “subordinated” in any sense implying exclusion of consideration of personal circumstances. Rather, such circumstances are to be weighed in the balance with the needs of deterrence, denunciation, accountability and public protection…

[135] Thirdly, we think considerable caution must be exercised in the expression of broad principles which may diminish the inherently discretionary weighting of aggravating and mitigating factors in stage two of the sentencing exercise. Indeed, it is a qualified discretion in any event. Section 9(2) of the Sentencing Act requires the court to take into account certain mitigating factors to the extent they are applicable to the particular case. Section 9(3) makes clear the list in s 9(2) is non-exclusive. Section 8(g) requires the court to impose the least restrictive outcome appropriate in the circumstances. Importantly, s 8(h) requires the court to take into account any particular circumstances of the offender that mean the sentence would be disproportionately severe. None of these provisions are expressed by Parliament as being inapplicable, or less applicable, in certain classes of crime.

It’s a two-pronged attack.  First, in the finest traditions of intermediate appellate courts everywhere the Court settled on the old “we don’t think that’s what the Supreme Court meant” trick.  That’s great as long as no one calls you on it, but that is 100% what the Supreme Court meant.  If you keep reading past the “subordinated” line in Jarden the Supreme Court makes clear you can take all these other factors into account (no fettering here), it’s just the weight that they will be afforded will be minimal.  Even in Mr Jarden’s case where there were “extreme” personal circumstances “[t]he crucial importance of deterrence requires however that the reduction in sentence be a modest one” (at [14]).

And second, to the extent the Court of Appeal needs to escape Supreme Court precedent (which they should!) the Court just goes one level higher still to Parliament.  Using the shield of Parliamentary sovereignty the Court deploys provisions of the Sentencing Act 2002 to call into doubt the Supreme Court’s observation in Jarden.  Again, fine, until you remember that the Supreme Court considered those same statutory provisions in Jarden and came to a different conclusion, by which the Court of Appeal is bound.

After that, hey presto, the Court of Appeal can say:

[136] It follows that we consider that personal mitigating circumstances relating to the offender, at stage two of the sentencing exercise, are applicable to all instances of Class A drug offending, as in any other offending.

And for just five easy payments of $19.95 I can teach you to do the same.

The result is that flexible approach to stare decisis that I fear might be becoming my thing that I complain about all the time.  The idea that, well, if you asked the Supreme Court today about Jarden they would probably say the same thing as the Court of Appeal did in Zhang, so why bother them with it.  I guess all I’m saying is that the hierarchy of courts isn’t the same thing as asking your parents if you can borrow their car.

Still, don’t mistake what I say.  Zhang v R is a Good Decision™.  It means more compassionate, rehabilitative sentences for those addicted.  It retains stern sentences for commercial meth importations.  It removes strange distinctions for class A drug offending that looked weird a long time ago.  It expressly mentions social and cultural deprivation as a personal mitigating factor.  It’s good that we get some common-sense liberalism from those notorious lefties in the *checks notes* Court of Appeal.  See you out there in this brave new world.

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.

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!

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.)

Detective mode

maths
In what journal do I publish my research?

I’m meant to be writing a case note about the Craig v Williams [2019] NZSC 60 recall decision.  But within the first five minutes I got distracted because the decision – like all Supreme Court recall decisions – is not attributed to a particular judge.

The decision has been criticised, both ably and less-ably.  It’s a judgment that is powerful in its silence on Arnold J’s decision-making.  It risks relegating the effect of the Guidelines for Judicial Conduct.  And it’ll end up getting cited the next time a judge accidentally stumbles into a situation like this.  The ratio appears to be something along the lines of brain explosions are not grounds for recall.

But could we figure out who in fact wrote it?  Individual authorship doesn’t matter, really.  All of the permanent members of the Court signed up to it so who cares who wrote it.  But I spent three hours today (which is also my birthday) ctrl-F-ing through Supreme Court (and, in the case of Winkelmann CJ and Williams J) Court of Appeal decisions looking at writing style in order to try to find out.  And I’m not going to let that go to waste!

So, with my armchair linguist hat at a jaunty angle, I present a wildly speculative analysis of the recall decision.

Before I do, I should say that I have zero connection with the Supreme Court (after all, they have standards).  All of this, like everything else on this site, is Not Meant To Be Taken Seriously.  On the off chance I’m correct, it’s just a guess.

There are three overlapping, distinctive features about the writing in the decision that I think warrant scrutiny.  They are:

  1. What’s not said.
  2. Sentence starters.
  3. Description of submissions.

 

What’s not said

The first interesting thing about the decision is what’s not said.  For example, the excellent passive voice language in the decision:

[3] A sailing trip was planned in which both Arnold J and Mr Mills would be participants. …

Was it?  That sentence once used to say who had organised the trip.  But the passive voice smashed down the door, grabbed that key information, and is now holding it at gunpoint in a basement somewhere.

… It appears that … inquiries were made of Mr McKnight, counsel for Mr Williams. …

Oh God!  It’s taken a second hostage!

Actually, we learn later in the judgment that it was Mr Mills QC who asked Mr McKnight, so that one escaped or, possibly, it was released as a show of good faith.

It’s not solely the passive voice (which also features under other headings).  It’s things like the absence of focus on Arnold J’s conduct as well.

In other circumstances, I’d suggest that this might be a hallmark of writing style.  But here, I think those points are just symptomatic of the subject matter.  So it’s necessary to look at the other two features of the decision.

 

Sentence starters

This is a short decision – only 20 paragraphs over seven pages.  It’s easier then, perhaps, to spot concentrations of style.  The writer has said at various points:

Further, if it was possible to consent, the consent given was not an informed consent because Mr Williams was not aware of the Guidelines.

Further, it is argued that the Guidelines are not a code and that the authorities confirm breach of the Guidelines does not create apparent bias.

Further, the events to which Mr Williams consented were in fact what occurred and in accordance with the conditions which Mr McKnight says he stipulated.

Further, to the extent the Guidelines could have provided relevant information to Mr Williams and his counsel, they are in any case publicly available.

I think this is Glazebrook J.  Her Honour frequently starts sentences with “Further,”.  I’ve taken the following examples from cases where Glazebrook J has written a judgment in a Supreme Court decision where at least one judge also wrote a decision (for comparison purposes).

In R v Wichman [2015] NZSC 198 William Young J wrote 131 paragraphs and only once used “Further,” to begin a sentence.  Justice Glazebrook wrote 197 paragraphs and began a sentence with “Further,” 23 times.

Glazebrook J used it five times in the majority judgment in Quake Outcasts v Minister for Canterbury Earthquake Recovery [2015] NZSC 27, [2016] 1 NZLR 1 when no one else used it.  Thrice in Proprietors of Wakatu v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423 when Elias CJ used it only once.  Six times in Northland Environmental Protection Society Incorporated v Chief Executive of the Ministry for Primary Industries [2018] NZSC 105 when William Young J used it only once.  In Scott v Williams [2017] NZSC 185 – when the Supreme Court did its best War And Peace impression, there were four separate decisions in which Glazebrook J was responsible for nine of 14 “Further,”s.  The term doesn’t feature strongly at all in the decisions of Winkelmann CJ and Williams J that I read either.

I think this factor sounds moderately strongly in favour of Glazebrook J, but what other indication is there?

 

Description of submissions

The Craig v Williams recall decision has a third distinctive feature.  It seldom attributes submissions to counsel.  Instead, the writer uses the passive voice.  So, we have these sentences in the recall decision:

It is submitted that what occurred here did not comply with the Guidelines particularly where the contact was such that counsel and the Judge were in close quarters over a week-long period.

In these circumstances, the submission is that there is an appearance of partiality when measured by the appropriate standard.

It is also submitted that, given the public interest in preserving impartiality, Mr Williams’ consent is irrelevant.

In any event, the submission is that there was compliance with the Guidelines because Mr Williams’ consent was obtained and there was no discussion of the case.

Finally, it is submitted the delay in raising this matter is tactical and contrary to the authorities which suggest questions of apparent bias should be raised promptly.

Which accords with Glazebrook J style (and only Glazebrook J’s style) of the judges on the panel that decided Craig v Williams.  Again, I looked at a range of decisions using the same methodology as above.  In Xu v IAG New Zealand Ltd [2019] NZSC 68 Glazebrook J wrote:

It is submitted that Bryant is either wrongly decided or distinguishable.

In the alternative, it is submitted that condition 2 of the Policy allows the appellants to restore the home and receive the replacement benefit.

It is submitted that Bryant was correctly decided and is not distinguishable and that condition 2 does not assist the appellants.

And in Quake Outcasts her Honour wrote:

It is submitted that the Crown’s actions in this case had significant practical effects which directly resulted in truncated rights.

In this context, it is submitted that the unequal treatment of the uninsured (and the delays in making decisions about their position) is unlawful, an abuse of power and inconsistent with the earthquake recovery purposes of the Canterbury Earthquake Recovery Act.

It is submitted that the Crown does not require statutory authority to provide information to the public. Ministers were able to make the decision that this information should be provided and the Prime Minister and the Minister were able to provide the information, in the exercise of the Crown’s common law powers.

As to the decision to establish the red zones, it is submitted that this was a delegated Cabinet policy decision, implemented by the announcement made by the Prime Minister and the Minister for Canterbury Earthquake Recovery.

it was nevertheless submitted that the Act does not limit the Crown’s common law power to acquire land and personal property through voluntary transactions.

In addition, it is submitted that it was open to Ministers, when making funding decisions, to take these factors into account.

No other judge in those cases used that terminology.

No judge has a monopoly on “it is submitted”, but Glazebrook J is by far the heaviest user.  And while her Honour also uses more active voice descriptions (eg. “Mr Goddard submits…”), a passive voice description of submissions is a notable and noticeable feature of her Honour’s writing.  And other judges – Winkelmann CJ in particular – are scrupulous at attributing submissions every time they are referred to.

 

Conclusion

Add the two factors together and I would irresponsibly bet the house on Glazebrook J as author of the recall decision.

What this post can’t exclude is the idea that multiple judges contributed to the judgment.  As a judgment of the Court, all judges would have had to be comfortable signing up to it, of course.  But I think the brevity of the decision makes it less likely to have multiple authors.

If it is Glazebrook J’s decision, there is a certain institutional integrity to that.  Her Honour was in the minority in the substantive decision.  It speaks well of the Court as a whole that the question of recall is not used as a vehicle to relitigate the decision as between judges.  Now if only they had said something about the decision to go sailing…

A coronial constitutional curiosity

Content warning: tangential discussion of suicide.

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By all public accounts, the death of Nicholas Stevens was a tragedy.  You can read the background here.  This piece isn’t meant to comment on the particular facts of that case.  I haven’t heard the evidence but you’d be inhuman not to feel for Mr Stevens’ family.  But the case has put into the spotlight a section of the Coroners Act 2006 that I think is constitutionally curious.

Again, before I start.  I simply do not know the facts of this case and have no connection to it beyond what I have read in publicly available media reports.  The points I am raising do not depend on the particular findings of the Coroner.

 

Background facts

In December 2018, Coroner Wallace Bain released findings following an inquiry and inquest into the death of Mr Stevens.  Mr Stevens died while he was a patient at a mental health facility operated by Waikato District Health Board (WDHB).  Mr Stevens walked out from the centre.  He was later found dead.  According to media reports, the Coroner found that Mr Stevens’ death was a preventable suicide.  The Coroner identified shortcomings with the care that Mr Stevens received that permitted him to leave the facility unmonitored when he was unwell.

WDHB’s insurer held concerns at procedural issues during the inquest.  The WDHB wrote to the Solicitor-General seeking a new inquiry overseen by a different coroner.  In a New Zealand Herald article (whose author had seen a copy of the WDHB’s letter) the concerns were summarised this way:

In the letter dated January 23, 2019, [the WDHB’s lawyer] says he is also complaining to the Judicial Conduct Commissioner about Coroner Wallace Bain’s conduct during the inquest.

[The WDHB’s lawyer] raises concerns about the “numerous procedural irregularities” that he believes were not addressed by Bain prior to him releasing his final findings.

“Rather, he has cursorily dismissed fundamental legal principles that provide for fair processes, and issued findings that seemingly accord with his predetermined view that is not supported by evidence”, the letter claims.

It also criticised the coroner’s decision to dismiss the views of a key expert instead of calling on him as a witness, which was “to the DHB’s detriment”.

[The WDHB’s lawyer] also claims the coroner had been communicating with [Mr Stevens’] family on more than simple procedural issues, giving a “strong impression that this inquiry has not taken place in an impartial way”.

Legal framework

A coroner’s findings are a judicial determination.  There is no right of appeal, but if dissatisfied with them you can seek judicial review.  There have been two successful modern instances of coroners’ findings being overturned for being unreasonable (see Smith v Jamieson [2012] NZHC 1047 and Carroll v Coroner’s Court at Auckland [2013] NZHC 906, [2013] NZAR 650).

But the Coroners Act 2006 has some sections hiding in the back of it that confer the power to order inquiries in certain instances.  (The interesting thing is on whom the power is conferred – and I’m getting to that.)

The first is s 95.  Section 95 is the one you use if a coroner hasn’t opened an inquiry in the first place but should have done so when regard is had to the statutory criteria for doing so in ss 57-63.  Section 95 relevantly provides:

If satisfied that an inquiry is necessary or desirable and that the responsible coroner has failed or refused to open one, the Solicitor-General or the High Court may order an inquiry to be opened; and in that case an inquiry must be opened and conducted.

The second is s 96.  Section 96 is the one you use if a coroner didn’t open an inquiry and was right to do so at the time, but since then there are new facts that have been discovered that mean an inquiry is desirable.  Section 96 relevantly provides:

If satisfied that since a coroner decided not to open an inquiry into a death new facts have been discovered that make it desirable to open one and that one has not been opened under section 65 (coroner may decide to open inquiry despite initial decision), the Solicitor-General may order one to be opened; and in that case an inquiry must be opened and conducted.

The third is s 97.  Section 97 is different from the other two because s 97 applies when a coroner has already opened and conducted an inquiry.  Even if there has already been an inquiry, there can still be another one:

If satisfied that 1 or more inquiries have been conducted into a death but another should be conducted because of fraud, rejection of evidence, irregularity of proceedings, or discovery of new facts, or for any other sufficient reason, the Solicitor-General or the High Court may order another to be opened; and in that case another must be opened and conducted.

It is s 97 that matters the most for the Stevens case and the point I am interested in.  But before I get to my point there is one more jigsaw piece.  Section 102 provides that the findings of the new inquiry will replace the findings of the old inquiry:

102 Procedure at inquiries ordered under sections 95 to 97

(1) The findings of an inquiry conducted pursuant to any of sections 95 to 97 replace the findings at every previous inquiry (if any) conducted in respect of the death concerned

(2) Except to the extent that the Solicitor-General or the High Court may have ordered otherwise under section 95 or 96 or 97, all depositions taken for the purposes of any former inquiry into a death must be deemed to have been taken for the purposes of an inquiry into the death held pursuant to that section.

(3) Except as provided in this section and sections 95 to 97, an inquiry held pursuant to any of those sections must be held in the same manner as any other inquiry.

So when you take something like s 97 and s 102 together, the Act provides for certain inquiries to effectively be wiped.  It’s a do-over power.

Now, it’s a do-over power that can only be exercised in certain circumstances.  Section 97 says you can have a do-over in one of five circumstances:

  1. Fraud.
  2. Rejection of evidence.
  3. Irregularity of proceedings.
  4. Discovery of new facts.
  5. Any other sufficient reason.

And of course it’s not just the mere presence of one of those things (which is good, because coroners, like any court, reject evidence all the bloody time).  It has to fall into one of these categories and rise to a level that satisfies the High Court or the Solicitor-General that a new inquiry – that will replace the old one – be conducted.

 

Why can the Solicitor-General effectively overrule a judicial determination?

Which leads me, finally, to my point.  Why is the Solicitor-General conferred this power?  Why can a member of the executive effectively overturn a judicial finding?  The High Court?  Yes.  A court of superior jurisdiction could overturn a coroner’s court finding every day of the week.  But the Solicitor-General?  The Solicitor-General can’t order the District Court to hold a new trial that will replace the old trial.  The Solicitor-General can’t order the Tenancy Tribunal to hold a new hearing that will replace the old hearing.

I will come on to thinking through potential reasons in a little while, but first a small collection of odd things about this power.

First, an identical power is conferred on both the Solicitor-General and the High Court.  This co-terminous power seems a little strange and I can’t quite think through why it’s like that.  It might make sense if the Solicitor-General were conferred the power in respect of certain grounds, and the High Court on others.  For example, if the s 97 power was only conferred on the Solicitor-General in the case of new facts being discovered then that would at least be conceptually consistent with the power in ss 95 and 96.  But it’s not.  The result is that you have to ask who would ever bother going to the cost and bother of commencing proceedings in the High Court, when you could simply write a letter to the Solicitor-General and let them do all the work.  Also, if you apply to either the Solicitor-General or the High Court and are unsuccessful, can you then make a further application to the other?  The section is drafted in a way that raises ambiguities.

Second, it didn’t used to be that way.  The division used to be split along the way I just identified.  In the Coroners Act 1988, s 38 permitted the Solicitor-General to order a new inquiry if new facts were discovered.  But if a new inquest were to be ordered on the grounds of “fraud, rejection of evidence, irregularity of proceedings, or discovery of new facts” or “for any other sufficient reason” then s 40 of the Coroners Act 1988 only empowered the High Court to make the order (on an application that could only be brought by the Solicitor-General).  Examples of that can be seen in Solicitor-General v Coroner of Balclutha HC Dunedin CIV-2005-412-749, 21 March 2006 and Solicitor-General v Coroner at Kaitaia HC Wellington CP258/01, 13 March 2003.

Before the 1988 Act was the 1951 Act.  Under s 27 of the Coroners Act 1951 the Attorney-General could order a coroner to re-open an inquest if satisfied the finding was “defective or erroneous”.  But, crucially, the coroner holding the re-opened inquest “may accept such of the findings and of the evidence given at the previous inquest as appear to him to be correct” (Coroners Act 1951, s 27(2)).  So although the Attorney-General could say “take another look”, it remained a matter for the coroner to say “yeah I have and it’s fine”.  No real usurpation of role there then.  And the (then) Supreme Court retained the orthodox power to overturn findings on the application of the Attorney-General (Coroners Act 1951, s 26).  An example of the Supreme Court doing that can be found in Re Ford’s Inquest [1956] NZLR 805 (SC).

So the 2006 Act changed things.  And the reasons why are not recorded anywhere.  The Law Commission’s report and early draft of what became the Coroners Act 2006 recorded its view that the Solicitor-General should be able to order a new inquiry where new facts are discovered (refer Law Commission Coroners (NZLC R62, 2000) at [458]-[460]).  Again, this seems a reasonably sensible division.  But that did not translate into was what clause 87 of the Coroners Bill 2005 which conferred the power in its present terms equally on the Solicitor-General and the High Court.  The change was not commented upon during the remainder of the legislative process.  The reason will be lost in the mists of the Parliamentary Counsel Office.

A third thing that is unusual about the conferral of the power in s 97 on the Solicitor-General is the risk of a conflict of interest.  The Solicitor-General – through the Crown Law Office – will often appear as counsel for government departments in coronial inquiries.  In cases where that happens, why should the Solicitor-General also be conferred the do-over power in s 97?  It seems to set up the risk of a structural conflict that would be avoided by simply reserving the power for the High Court.

A fourth thing is that New Zealand is completely alone in giving this power to one of the law officers of the Crown.  None of the Australian jurisdictions do: see, for example, the Coroners Act 2009 (NSW), s 85, and Coroners Act 2008 (Vic), s 84 and Coroners Act 2003 (Qld), s 50.  Instead they reserve it to their courts (either with or without first permitting the coroner herself to consider holding a new inquiry).  As does the United Kingdom (either by way of straight judicial review, or through the fiat of the Attorney-General: see Coroners Act 1988 (as amended), s 13, which remains in force following the enactment of the Coroners and Justice Act 2009).

The fifth point is that there is no obvious reason why the Solicitor-General needs to be included in the s 97 power.  The task of auditing an inquiry for procedural irregularity seems well within the High Court’s wheelhouse.  The Solicitor-General almost certainly costs less than commencing proceedings in the High Court, so from an access to justice perspective it’s nice the Solicitor-General can do this.  But if it’s justice you want access to, I am still to be convinced that a member of the executive tipping a decision of a member of the judiciary is consistent with “justice” or the constitutional order.

 

Is there a good reason for giving the power to the Solicitor-General?

Notwithstanding the points above, there might be some reasons why it’s okay that the s 97 power resides with the Solicitor-General.

The first reason might be that a coronial inquiry doesn’t determine civil, criminal or disciplinary liability.  It can only establish facts and make recommendations and comments.  Even if it’s not completely acceptable for the Solicitor-General to effectively overturn a coronial finding, it’s probably more acceptable for the Solicitor-General to be ordering a judicial officer to do that where there hasn’t been any determination of parties’ legal rights.

That’s true, but I don’t feel carried particularly far by that point.  Parliament has recognised the status of the Coroner’s Court as an inferior court (see Inferior Courts Procedure Act 1909, s 2(c)).  Coroners are proper judicial officers.  And coroners do determine legal rights when they issue non-publication orders at least.  All of that adds up to say that even if coroners aren’t judges, they are properly judicial officers, sitting in a court.  The executive shouldn’t be able to be able to decide that there was an irregularity in proceedings such that a do-over is necessary.  That just seems like a Big Deal.

The second reason might be that the Solicitor-General can be trusted to act independently.  As a statement in any individual case, I have no doubt that is correct.  My concern is with the broader constitutional impact, and why the role is allocated to the Solicitor-General.  This question of trusting the Solicitor-General was partly addressed in Berryman v Solicitor-General [2005] NZAR 512 (HC).  That case was about discovery in the context of a judicial review of the Solicitor-General’s refusal to order a new inquiry in the light of new facts under s 38 of the Coroners Act 1988.

Justice Wild held that the Solicitor-General’s functions under the 1988 Act were a “function of a quasi-judicial nature” (at [40]) and the Solicitor-General will act “independent[ly] of government direction” (at [34]).  That was in the context of holding that the Solicitor-General was not the “Crown” when she exercised powers under s 38.  However, the analysis in Berryman only had to contend with the power under the 1988 Act to order a new inquiry if there were new facts.  The 2006 Act confers several new powers.  That at least exacerbates the problem given it expands the grounds on which the Solicitor-General can interfere.  The “I’m doing this independently” excuse has to hold more water when the 2006 power confers a much wider power to interfere.

Because it’s one thing for the Solicitor-General to say “I think these new facts might make a difference”.  The Solicitor-General can say that with no indictment of the coroner’s findings.  It’s quite another to say there was a procedural irregularity in the coroner’s inquiry.  That requires criticism of a judicial officer.  Natural justice likely requires the Solicitor-General to hear submissions from affected parties, and possibly from the Coroner.  That’s asking a lot of a law officer to retain a neutral role when administering certainly extraordinary powers.  It’s less like a law officer function and much more like a proper judicial one.

But, in theory, the point in Berryman still holds.  And we know what the Solicitor-General does under s 97 because someone once gave to Stuff a copy of a Crown Law letter to a family member.  Stuff published it and I saved it at the time.  The test the Solicitor-General applies is set out in the picture below (apologies for the wonkiness – it was scanned that way, and apologies for the wonkiness in the other sense):

Legal test.PNG

So there’s no doubt that the test is being applied in a judicial way.  And that probably answers my point above about the risk of structural conflict.  It’s a “law officer thing”, and we trust that “law officer things” are done properly.  Leave Una alone!  But, on a normative level, if s 97 requires a person to act judicially, why isn’t the power only given to someone whose day job it is to act judicially?  Like a High Court Judge.

A third response to the issue is to take a further step back (the macro-macro view, if you will), and say that, well, Parliament enacted the section.  Parliament can do what it wants, and if Parliament wants to confer on one of the law officers the power to override decisions of the judiciary, then Parliament can do just that.  At that level, that’s in perfect constitutional order.  Fine, I guess.  Parliamentary supremacy is a cop out though.  And the change from the predecessor Acts with no stated reason and the fact that no other jurisdiction does what we do makes me less inclined to trust Parliament knew what it was doing on this one.  Why is this so out of step with the rest of our constitutional order?

 

Concluding thoughts

I’ve no idea what the Solicitor-General will decide in the Stevens case.  There’s a chance that the new Commissioner of the WDHB will pull the case.  That will make the entire thing go away.

But if the Solicitor-General does have to make a decision it will be (as far as I know) new territory in terms of having to grapple directly with one of the new grounds in s 97 of the Coroners Act 2006.  It will be interesting to see to how the Solicitor-General chooses to engage with that task.

I can’t really offer comment given I know none of the facts.  Despite that, my gut instinct is that it would be appropriate for the Solicitor-General to decline to exercise her power under s 97 in some instances where she considers it is more appropriate for the applicant’s grounds to be determined by the High Court.  That outcome is not demanded by the wording of the section, but is appropriate in a constitutional sense.

The broad dividing line as I see it is if the reasons are internal or external to the inquiry.  New facts are external to the inquiry.  They require regard to the inquiry but no comment on or criticism of the sufficiency of the inquiry.  The Solicitor-General can perform that role in the way that Berryman v Solicitor-General okayed.

Most procedural irregularities are going to be internal to the inquiry.  You need to scrutinise what the coroner did and how they did it.  Where the task approximates judicial review, it’s not appropriate for the Solicitor-General to exercise the do-over power.

We’ll see how that plays out.  And we can all hope that in this case justice doesn’t require increasing the pain of Mr Stevens’ family.

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.