The Charter vs evidential burdens

It’s not often these days that I praise High Court judgements, especially in criminal cases. Of course, it helps when Heydon issues a separate judgment. But, anyway, my praise was about the majority’s statutory interpretation. Their approach to the facts is another matter, at least in one case.

I have nothing but praise for the majority judgment in Kuru v State of NSW [2008] HCA 26. Not only did the High Court make the right call on the interpretation of NSW’s provisions on police powers to enter and remain in premises without a warrant, but it also made some uncharacteristically canny observations about the facts.

Kuru was suing the NSW police over an incident in mid-2001. Kuru and his partner (now wife, as every judgment on this case is at pains to point out) had a big barny. Not, as it turned out, a violent one, but lots of screaming and so forth after midnight. For reasons that are not explained, the call-out to the police labelled the event a ‘violent domestic’, rather than a ‘normal domestic’. However, by the time the cops rocked up, Kuru’s partner was off at her sister’s place, two of Kuru’s relatives had turned up and Kuru himself was in the shower. The police made up in numbers what they lacked in promptness: when Kuru came out of the shower, there were six cops in the house. At first Kuru told them to look around if they want, but the civility didn’t last. He told them in no uncertain terms to go. Soon after, he had leapt on and off the kitchen bench, blows were exchanged with the police and capsicum was sprayed. He ended the night in a lock-up in only his boxers. However, when the inevitable charges of assaulting the police came a cropper, Kuru responded by suing the police for assault and trespass.

The High Court, faced with a technical dispute about formal police powers, noted that the facts pointed to less esoteric controversies:

Evidence given at the trial may well have permitted framing the issues between the parties differently. There was evidence that might have been understood as permitting, even requiring, examination of whether the appellant’s conduct went beyond taking reasonable steps for the removal of trespassers, and whether the conduct of the police went beyond the application of reasonable force to arrest a person impeding them in the execution of their duty. But the parties having chosen to litigate the appeal to the Court of Appeal on the conventional basis that has been identified, neither sought in this Court to submit that any issue about the use of excessive force either by the appellant, if his ejecting the police officers was otherwise lawful, or by the police officers, if their restraining the appellant was otherwise lawful, should now be considered by this Court.

But that’s the adversarial system, given that this was a civil case.

Alas, a day earlier, in CTM v R [2008] HCA 25, a majority applied the same approach to a criminal case, where additional rights apply. CTM was accused of both rape and statutory rape, after the complainant said that she awoke from a drunken sleep at a party to find the teen having sex with her. He admitted that he wanted to have sex with the 15 year-old (who he said was awake) but never got a private moment. Crucially, the jury acquitted CTM of rape but convicted him of statutory rape, but not in its aggravated form (which required proof that the accused took advantage of the complainant while she was drunk.) So obviously they were sure he had sex with the complainant but were not convinced that it was non-consensual or indeed that she was especially drunk.  However, what we don’t know is whether or not the jury would have accepted that prosecution had proven beyond reasonable doubt that CTM was not acting under an honest and reasonable mistake that the complainant was 16 years or older. The judge, while rightly deciding that the mistake issue was legally an element of the crime in NSW, had wrongly thought that the burden was on CTM to prove that he had made a mistake on the balance of probabilities.

So, given that the majority of the High Court agreed that mistake was an element of the crime, that it had to be disproven beyond reasonable doubt by the prosecution and that the trial judge had therefore misdirected the jury, why did the majority nevertheless dismiss his appeal? The problem, said the majority, was that the only evidence suggesting that CTM made a mistake was in his interview with the NSW police:

How long have you known [the complainant] for? I think it was the start of the year, I started to go to … and then that’s when I met [the complainant].

Do you know how old [the complainant] is? 16.

 How do you know that? Well that’s how, that’s how old she’s told me.

When did she tell you that? Like when I first met her. I just assume that she’s 16 ever since.

Does [the complainant] go to school? She didn’t for a while but she does now at the moment as far as I know, she’s back at school.

O.K. Do you know what year she’s in? Year 10 I think.

The majority backed Hayne J’s finding that this wasn’t sufficient evidence that CTM made a mistake about the age of the 15 year-old:

Without more, the fact that the appellant was proved to have made an out-of-court assertion about his belief as to the complainant’s age was not sufficient to raise an issue at his trial about mistake. In his interview with police, the appellant had said that he believed the complainant was aged 16 years because she had told him this. No question about this alleged conversation or about any communication she may have had with the appellant about her age was directed to the complainant in the course of her evidence. Not having raised the matter with the complainant in the course of her evidence, it was not then open to the appellant, relying only on what he had told police, to say that there was a live issue at the trial about his belief about the complainant’s age. To enliven the issue it was essential that the complainant be asked whether there had been a conversation of the kind described by the appellant to police. But not having raised the matter with her, it was not open to the appellant to say that the evidence elicited in the course of the prosecution’s case sufficed to enliven the issue.

This is a breathtaking instance of the tin ear for justice that characterises the Gleeson Court’s work in criminal appeals. Even in the absence of the police interview, the possibility of a reasonable mistake about the age of a 15-year-old is surely always a live one, at least amongst similarly aged colleagues. And, make no mistake, the High Court wasn’t rejecting this argument because CTM’s main defence was denial of intercourse. As the Court rightly pointed out, inconsistent defences are quite common in criminal trials and the High Court has said many times that trial judges are obliged to direct juries on all available arguments raised by the evidence, whether the defence wants that to happen or not. In this case, the defence specifically asked the trial judge to make the direction, citing tactical grounds for not putting it themselves. Moreover, as Kirby J (dissenting, of course) incredulously pointed out, none of the lower court judges had any doubt about the evidence raising the issue of mistake. Rather, the issue was raised for the first time in the High Court.

Most disturbingly of all, what the High Court now seems to require to satisfy a merely evidential burden is that the defendant testify or, at least, elicit evidence himself on the question of mistake. The Court’s gripe that the complainant wasn’t asked about the age issue seems to be an application of the evidence law rule in Browne v Dunn, which requires that parties put imputations against witnesses give notice of those imputations, typically by putting questions to them in cross-examination. This approach seems to ignore the Court’s own authority, from 2005, on the applicability of that rule to criminal defendants:

The position of an accused who bears no burden of proof in a criminal trial cannot be equated with the position of a defendant in civil proceedings. The rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused in a criminal trial than can the not dissimilar rule in Jones v Dunkel [allowing negative implications against parties who do not call witnesses]. In each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory character of the criminal trial in this country.

The good news for Victorians is that these principles that are derived – or perhaps I should say, were derived, until yesterday – from the common law are also part of the Charter:

25(1) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

In a 1994 judgment, the Supreme Court of Canada, in the course of holding that evidential burdens are compatible with the right to be presumed innocent, was at pains to point out that such burdens do not necessarily require the defendant to testify or call any evidence:

It must be remembered that the accused only bears the evidentiary burden of raising the issue of mistake, and in fact, only bears that burden if sufficient evidence has not already been raised by the prosecution’s case. The reasons of Wilson J. in Robertson… deal with this issue:

This evidence may be introduced by the Crown or by the defence. The accused bears the evidentiary burden only in the limited sense that, if there is nothing in the Crown’s case to indicate that the accused honestly believed in the complainant’s consent, then the accused will have to introduce evidence if he wishes the issue to reach the jury. Once the issue is put to the jury the Crown bears the risk of not being able to persuade the jury of the accused’s guilt.

As it happens, just this week, SARC raised a concern about a provision in the new Unclaimed Money Bill 2008 that imposed an evidential requirement for the defendant to ‘give evidence’:

The Committee further notes that clause 26(2) provides that the prosecution must still prove such an individual’s actual guilt if the individual ‘gives evidence in the proceeding’ that he or she had no knowledge, influence or ability to stop the corporation’s contravention. The Committee observes that this is less burdensome than a requirement to prove these matters and that the House of Lords held in Attorney-General’s Reference No 4 of 2004 [2005] 1 AC 264, [54] that an evidential burden is acceptable where a person’s liability is presumed based on his or her involvement in an organisation. However, the Committee observes that the requirement to ‘give’ evidence is more onerous than a requirement to satisfy an evidential burden, which only requires the defendant to ‘point to’ evidence (e.g. including the prosecution’s evidence about the entity’s breach, while may, of its nature, suggest that a particular individual knew nothing about it.) The Committee notes that the explanatory memorandum to clause 26(2) refers to the ability of an individual to ‘point to’ evidence, but that language does not appear in the actual clause.

The Committee refers to Parliament for its consideration the questions of whether or not: …clause 26, in light of its exception for when an individual ‘gives evidence’ distancing himself or herself from the offence, is a reasonable limit on the Charter right of people involved in the management of bodies corporate to be presumed innocent according to the test in Charter s7(2).

At least where the evidential burden in question involves a Victorian statutory offence, the Charter’s interpretation mandate – combined with the Charter’s right to be presumed innocent – may require Victorian courts to ditch the High Court’s new and unfortunate approach to evidential burdens in criminal cases.

As for CTM, he escaped a sentence of imprisonment due to his youth, but is now likely to fall within the definition of a  ‘registrable person’ under NSW’s Megan’s law. Nice one, High Court.

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