This week on Legally Speaking with Michael Mulligan:
An appeal in a criminal case does not involve asking the judges hearing the appeal to retry the case. It’s a review of what took place at the original trial.
The Court of Appeal can allow an appeal if the verdict at trial was unreasonable and not supported by the evidence, if there was a wrong decision made by a trial judge on a question of law, or if there was a miscarriage of justice.
When a trial is decided by a judge without a jury, the trial judge would provide detailed reasons explaining how they arrived at their decision. That permits a review of the legal analysis when there is an appeal.
Where, however, there is an appeal from a jury verdict, there are no reasons for judgment so appeals will focus on legal rulings the trial judge made during the trial and the instructions they gave to the jury.
One of the things that juries are commonly told is that they should follow the trial judge’s instructions with respect to the law because, if the judge makes a mistake with respect to the law, that can be reviewed on an appeal.
Even when the Court of Appeal determines that a trial judge made a wrong decision on a question of law, a new trial may not be ordered if the mistake could not have impacted the outcome of the trial. The language used when there is such a finding is that there was “no substantial wrong or miscarriage of justice”.
In the appeal of the Andrew Berry murder conviction, which is discussed on the show, the defence argued that the judge made several legal errors concerning the admissibility of evidence. The Crown’s submissions were that the decisions made by the judge were not mistakes but, if they were, they would not have changed the result of the trial.
Also on the show, an application for a ban on publication of evidence provided to the accused during the criminal contempt prosecutions for members of the Rainforest Flying Squad and others is discussed.
In criminal cases, the Crown is required to provide disclosure of all the evidence gathered by the police. This is an important requirement to help prevent wrongful convictions. In Canada, there have been several instances of innocent people being convicted because exculpatory evidence was not given to them.
When evidence is provided to an accused person or their lawyer it is often referred to as disclosure material.
There is a legal requirement called an “implied undertaking” that prohibits the disclosure material from being used for any purpose other than the defence of the criminal case.
In the case discussed, one or more of the more than 400 people being prosecuted for criminal contempt failed to keep the disclosure material they received confidential, and it ended up in the hands of journalists.
The Crown was successful in applying for an order that the journalists do not publish the contents of the disclosure material unless and until it was used in open court.
Finally, on the show, an appeal by a man convicted of drug offences and sentenced to six years in jail based on evidence from a disgraced former Victoria police officer is discussed.
The man was connected to the drugs in question based on a key allegedly found by the former police officer that opened a safe in which the drugs were located. The former police officer claimed that he found the key and put it in his pocket before officers assigned to take photographs of the room where he said he found it did so.
The former police officer was subsequently alleged to have engaged in 13 counts of improper disclosure of information, 3 counts of deceit, 2 counts of discreditable conduct, and 1 count of neglect of duty.
An automated transcript of the show:
Legally Speaking June 23, 2022
Adam Stirling [00:00:00] It’s time for Legally Speaking. Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Morning Michael, how are we doing?
Michael T. Mulligan [00:00:06] Good morning. I’m doing great.
Adam Stirling [00:00:08] Some really interesting stories on the agenda today. Where do we begin?
Michael T. Mulligan [00:00:13] I think a good place to start would be some information about the appeal, which is continuing, as I understand it today, dealing with the conviction and sentencing of Andrew Berry, who was the notorious individual who was convicted of murdering his two daughters a number of years ago.
Adam Stirling [00:00:31] Yes.
Michael T. Mulligan [00:00:33] And that appeal has been going on for, it was scheduled for a total of four days. And the first thing people should be aware of is that that’s a very long time for an oral argument in a criminal appeal to go on for.
Adam Stirling [00:00:48] mm-hmm.
Michael T. Mulligan [00:00:48] Ordinarily an appeal of that kind, even in a complex case, might be expected to easily complete within a day. And that may be a function of the number of things that are being dealt with or the complexity of the trial. But people should be aware that it’s clearly a complicated matter, taking several times longer than what would ordinarily be the case. So, one of the things people should be aware of in terms of criminal appeals and it relates to this particular case as well, is that a criminal appeal is not a new trial. It’s not a matter of the Court of Appeal judges saying what would we have done or what do we think of the evidence or anything like that? The appeal in a criminal case is essentially to look for mistakes or things that might have gone wrong during the actual trial. And that relates to the circumstances in which an appeal can either be allowed or dismissed. And in a criminal case, a conviction appeal can be allowed by the Court of Appeal. If the Court is satisfied of one of three things: either the Court or the Court of Appeal is satisfied that a verdict is unreasonable or cannot be supported by the evidence. So, there would be some limited weighing of the evidence, looking at the transcript saying, look, was this unreasonable? Could it be supported?
Adam Stirling [00:02:12] Mm hmm.
Michael T. Mulligan [00:02:13] An appeal can also be allowed if the Court of Appeal concluded that a judge made a wrong decision on a question of law, and that’s often the focus of an appeal. Or thirdly, if there are any grounds that caused the Court of Appeal to conclude there was a miscarriage of justice. Right.
Adam Stirling [00:02:34] mm hmm.
Michael T. Mulligan [00:02:35] So that issue of the wrong decision on the question of law is often where the focus is. And in an appeal like this one that’s going on, where there’s a jury decision. We don’t, of course, have what we would have in a case involving a judge alone, which would be reasons for a judgement where when a judge makes a decision, they need to explain how they came to the decision. What evidence do they accept? What did they reject? Why? What did they see the law was and how do they come to their conclusion? Right.
[00:03:03] mm hmm.
[00:03:04] And we have that. So, things can be reviewed, and people can understand how a decision was reached with a jury case. Of course, that doesn’t exist. Juries don’t explain how they reach a decision. They simply come out and it’s guilty or not guilty. And so, on an appeal, in a jury case, what’s being looked at are things like what instructions did the judge give to the jury? Right at the end of a case, there would be what’s called a charge to the jury, where the judge would tell the jury, here’s the law and here’s what you should go back and do. And so that would be looked at carefully to determine if the judge made any mistakes in their charge. And then the other thing which would be looked at would be decisions made by the judge, legal decisions during the course of the trial. And that’s been, as I understand it, the focus of this particular appeal, including decisions made by the judge about whether certain evidence should have been admissible or not, and as well whether the defence should have been permitted to pursue various lines of argument. On the admissibility front, there can be a couple of issues that are apparently live ones here, including things like constitutional arguments. There’s an argument, as I understand it, about whether statements made by the accused after he was arrested but before he was told about his right to counsel, should have been admitted by the trial judge. Right. So that would be an example of a legal argument.
Adam Stirling [00:04:31] mm hmm.
Michael T. Mulligan [00:04:31] And there can also be legal issues involving a judge’s general discretion to determine whether evidence should be admitted based on an assessment of whether it would be more prejudicial than it is probative of an issue in a case. So, for example, let’s say you had an accused person who did something which was just kind of outrageous and inflammatory but had nothing to do with whether they committed offence or not.
Adam Stirling [00:04:57] Yes.
Michael T. Mulligan [00:04:57] They made some rude comment or engaged in some completely anti-social behaviour. A judge might well be expected to say, look, you can’t just lead evidence of somebody is a terrible person or did something that none of us like, because that doesn’t tell us anything about whether they committed the crime. It just might cause people to say, well, I don’t like that person and could cause a jury, in theory, to convict somebody based on something other than evidence about whether they did it or not. And that’s another issue which is apparently a live when in this appeal. Finally, people should be aware that not every legal error results in a new trial. Right?
Adam Stirling [00:05:36] Yeah.
Michael T. Mulligan [00:05:37] You know, cases are complicated. This one went on for apparently 120 days. Right.
Adam Stirling [00:05:42] Wow.
Michael T. Mulligan [00:05:42] The original trial.
Adam Stirling [00:05:43] Yeah.
Michael T. Mulligan [00:05:44] And so judges are human. Sometimes they get it wrong. Right. And, you know, when you look at it with a transcript in the cold light of day and carefully pick it apart. Often you will find things which are just you just made a mistake. You look at the law, you got it wrong. Not every legal error results in a new trial being ordered. There’s a provision in the Criminal Code dealing with appeals that allows a court of appeal, even where they find that a judge made a legal mistake to not order a new trial. If the Court of Appeal concludes that there was no substantial wrong or miscarriage of justice. Right.
Adam Stirling [00:06:20] mm hmm.
Michael T. Mulligan [00:06:21] And so you can have a mistake made where the Court of Appeals or you have the judge made a mistake that shouldn’t have admitted that piece of evidence or shouldn’t have it caused this or that to occur. But if they look at and say, look, this just could have made no difference in terms of the outcome of the case. The Court of Appeal isn’t obliged to order a new trial. And so here, what’s going to eventually happen after they hear the oral argument is that they’ll need to determine, did the judge make legal mistakes? Did the judge make any mistake about the admissibility of evidence, or in the instructions the judge gave to the jury? And then, if so, right, could that have been a meaningful one? Right. Not every small error is going to result in a new trial. So that’s the process that’s going on. It’s not a fresh trial or sort of the Court of Appeal second guessing what somebody might have decided. It’s a matter of looking at what’s happened to determine if there were any mistakes made that could have had an impact on the outcome. And that’s how I expect it will play out. But it’s clearly a complicated case because it’s been the appeal is running at least four times longer than one would expect in a circumstance like this. Finally, there’s been some reference to the fact that both the in this case, the conviction appeal, and a sentence appeal.
Adam Stirling [00:07:45] Mm hmm.
Michael T. Mulligan [00:07:45] And the way that would work is the Court of Appeal would decide first about whether a new trial should be ordered. Right.
Adam Stirling [00:07:52] mm hmm.
Michael T. Mulligan [00:07:53] Because if a new trial was ordered, there’s no need to deal with the issue of sentence. And so that’s the order they would deal with it. Should there be a new trial? If so, well, go have a new trial, if no, then they would go on to analyze the issue of the sentence appeal. And in a murder case, of course, the mandatory sentence is always life in prison. The only issue is how long should somebody be prohibited from even asking for parole? And in this case, the trial judge imposed a 22-year period before a person could make a request, the accused to make a request for a new for (sorry) for parole. People should know that that does not mean that somebody would get parole at that time. It just means you can send in your request; we will have a look at it.
Adam Stirling [00:08:40] Yeah.
Michael T. Mulligan [00:08:40] But the overarching consideration is always the need to protect the public. So that’s a common misperception that somehow you would be released at that parole ineligibility threshold. That’s simply how long you need to wait before somebody can even make a request.
Adam Stirling [00:08:57] Good to know.
Michael T. Mulligan [00:08:57] So the criminal appeal work.
Adam Stirling [00:08:58] Perfect. Let’s take our first break. Legally Speaking here on CFAX 1070 with Michael Mulligan for Mulligan Defence Lawyers. We’ll continue right after this.
Adam Stirling [00:09:06] Back on the air here at CFAX 1070, joined as always by Michael Mulligan from Mulligan Defence Lawyers during the second half of our second hour on a Thursday. What’s next on our agenda, Michael?
Michael T. Mulligan [00:09:16] All right. Next on our agenda is a case dealing with a ban on publication of disclosure material relating to the ongoing prosecutions of members of the Rainforest Flying Squad.
Adam Stirling [00:09:30] Ahhh.
Michael T. Mulligan [00:09:31] And so the background to this, of course, or at least 400 plus people who are charged with criminal contempt for allegedly breaching orders with respect to TL Cedar Products, not to block logging roads and try to interfere with the logging operations. And this particular case dealt with, deals with a very interesting issue involving disclosure material in criminal cases and the way that works. Is that in a criminal case when you’re being prosecuted for something, Crown Counsel has an obligation to provide what’s referred to as disclosure of all of the evidence and other relevant material gathered by the police.
Adam Stirling [00:10:13] mm hmmm.
Michael T. Mulligan [00:10:13] And the reason for that should be pretty clear. It’s to prevent the wrongful conviction of people. Right. We have very regrettable cases, most of which are some time ago happily involving Crown Counsel, not providing evidence to the accused that might demonstrate that they are innocent. Right. And that people being wrongfully convicted and so that’s why we have strict rules that require Crown, to provide to the accused or their lawyer, all of the relevant evidence gathered by the police, right?
Adam Stirling [00:10:44] Yeah.
Michael T. Mulligan [00:10:45] Now, one of the rules, however, is that when that kind of evidence disclosure material is provided to an accused or their lawyer as part of a criminal case, that material can only be used for the purpose of defending the criminal case. It cannot be used for other purposes. And one of the key cases is called BASI that made clear that principal was the flowed out of the legislative raid case from a number of years ago over at B.C. Rail. And in that case, the accused wanted to keep and use the disclosure material for other purposes, potentially, maybe civil litigation or something else.
Adam Stirling [00:11:27] Yes.
Michael T. Mulligan [00:11:28] And the judge ordered, no. There is what’s called an implied undertaking, like a rule that applies when somebody receives material as part of disclosure material to ensure they have a fair trial in a criminal case, the person who receives it cannot use it for anything else. They’re not permitted to use it in civil litigation without an order of a judge. They cannot publish it or do something else with it. You can’t just go stick it all up on the Internet or publish it in the newspaper or something. And so, in the context of this, those are the rules. And so, in the context of these prosecutions of the Rain Forest Flying Squad, maybe not surprisingly, given that the allegations are breaching a court order, somebody amongst the 400 plus people breached that obligation and those rules. Right. And they distributed material they received by way of disclosure material and the disclosure material wound up in the hands of journalists.
Adam Stirling [00:12:27] Hmm.
Michael T. Mulligan [00:12:28] The journalists being responsible journalists phoned Crown and phoned the police for comment on some of the material.
Adam Stirling [00:12:34] Yes.
Michael T. Mulligan [00:12:34] It apparently had to do with alleged police or RCMP misconduct enforcing the injunction, and that caused the Crown to rush off to court and seek a ban on publication of any of that information that was in the disclosure material that came into the hands of journalists. And so, this decision, which just came down on the 21st, was the decision of the judge needing to decide, should there be a ban on the journalists using this information received by one of the accused, presumably, who breached their implied undertaking and released the material?
Adam Stirling [00:13:13] Hmm.
Michael T. Mulligan [00:13:14] And so the judge was clearly very impressed by the professionalism of the journalists in the case, right?
Adam Stirling [00:13:20] Yeah.
Michael T. Mulligan [00:13:20] They were acting responsibly. They had nothing to do with the breach of the implied undertaking. They simply came into receipt of this material and then wanted to report on it.
Adam Stirling [00:13:30] Yes.
Michael T. Mulligan [00:13:31] And the judge spoke about the importance of investigative journalism and how it is that we all rely upon that rather than people simply parroting news releases or something. In order to keep people to account and how important the free press is,.
Adam Stirling [00:13:48] Yes.
Michael T. Mulligan [00:13:48] It’s constitutionally protected. But the judge had to weigh that against the potential serious implications of disclosure material being published and the potential impact it could have on the provision of full and frank and complete disclosure of material by the Crown, which is so important to ensure that innocent people aren’t convicted of things. And one of the concerns that the judge had is that if disclosure material is being published even occasionally, it could have a chilling effect on people, for example, willingness to go and provide information or cooperate with the police. if somebody goes to the police and provides some information, if their statement winds up being posted on the Internet or something.
Adam Stirling [00:14:35] Yeah.
Michael T. Mulligan [00:14:37] Having to think oh, my goodness, don’t do that. Or it could have terribly negative implications for you.
Adam Stirling [00:14:42] Yeah.
Michael T. Mulligan [00:14:42] And so the judge had to weigh those important the importance of freedom of expression and freedom of the press against the need to ensure that there is full disclosure, and we don’t, you know, suppress people’s willingness to participate in criminal investigations. And so here, ultimately, the judge ordered there be a ban on publication of the material unless and until it’s disclosed in the context of the trial.
Adam Stirling [00:15:11] I see.
Michael T. Mulligan [00:15:12] Or the stay application, because then it would be in the public domain.
Adam Stirling [00:15:15] Yes.
Michael T. Mulligan [00:15:15] And trials are public.
Adam Stirling [00:15:17] yep.
Michael T. Mulligan [00:15:17] The judge refused the Crown’s application to try and force the journalists to turn over any material they received. The judge obviously impressed that, look, the journalists are going to follow my order, that it not be published except in those circumstances, and so refused that. And so, the Crown got something of what it wanted. The judge also made for whatever good it will do in the context of the fact that you’ve obviously got somebody here is not prepared to follow the rules that already apply an express order prohibiting people from passing out or distributing or publishing the material they’re receiving by way of disclosure. But again, you’re dealing with part of the challenge here is it’s not just one individual. You can say, well, we know who gave this out. It’s you. We only gave it to you.
Adam Stirling [00:16:04] Yeah, right.
Michael T. Mulligan [00:16:05] The problem is when you give it to 400 people, all of whom are charged with breaching a court order, good luck trying to figure out who leaked this.
Adam Stirling [00:16:12] I’m sort of.
Michael T. Mulligan [00:16:13] That’s really the problem.
Adam Stirling [00:16:13] Yeah, I’m sort of surprised that happened. I have dealt with documents that we have obtained through ways that I’m, I’m, I’m not going to in detail specify. And one of the concerns that I always have is that if the governing body or wherever the documents came from became aware that we had them, how easily would they be able to work backwards and figure out where they came from? And I think there is an ethical obligation to inform any source if you actually know that their identity, the risk that they are taking with respect to that. So that is a consideration that must always be made.
Michael T. Mulligan [00:16:44] Right. If you can sort it out, that person can be charged with contempt.
Adam Stirling [00:16:48] Precisely.
Michael T. Mulligan [00:16:48] If you could tell which of the 400 plus people decided to hand this out publish it, they could be charged with contempt for doing that.
Adam Stirling [00:16:56] Yes.
Michael T. Mulligan [00:16:57] Here, interestingly, one of the journalists had published a story based on the material they received. Then the Crown got an interim injunction. The journalist removed the story. It was posted online. And then we had this hearing. And so, it’s a good reminder for people about how this stuff works and why it is that people who receive material to ensure they have a fair trial are not allowed to go post on the Internet or handed out or use it for some other purpose, as tempting as that might be for them. And the courts take that really seriously because we take really seriously having fair trials and ensuring people get the disclosure they need.
Adam Stirling [00:17:32] Yes.
Michael T. Mulligan [00:17:32] So that we don’t convict innocent people. So, Rainforest Flying Squad continuing to create endless legal work, it would seem.
Adam Stirling [00:17:39] I was going to say, you know, lawyers tasked with overseeing those cases certainly have an endless amount of interesting material to work with, it would seem.
Michael T. Mulligan [00:17:47] No, my goodness. And what a management task that would be to with hundreds of people and all these trials. Right. It’s a serious challenge, no doubt about it.
Adam Stirling [00:17:54] Absolutely. I think we have one more thing on the agenda today, do we not?
Michael T. Mulligan [00:17:58] Indeed we do. And this is a case that’s now in the Court of Appeal. It’s a Victoria case, and it’s one that got a fair bit of attention at the time. It was a case involving a substantial amount of drugs and back in 2019, then in Victoria and the accused were convicted of being in possession for the purpose of trafficking a whole bunch of drugs. And one of the men who was appealing got six years in prison. Now, here’s the, the interesting things that have happened since then. Most of the drugs, in the background of the case, is that most of the drugs were found in the safe, in a safe a large safe in an apartment. There were some drugs found in a freezer in the same apartment. The accused whose appealing was not his apartment. The connection to the substantial connection between the man who was convicted and who was appealing, and the drugs was a key allegedly found on a lanyard in his bedroom when there was a search conducted of his bedroom at the same time as the search of the apartment where the drugs were found. The twists are that the police officer who testified that he found the key on the lanyard didn’t properly record it, claims that he took the key and lanyard before the identification people showed up to take pictures of the bedroom and said, Oh, I just realized at the end I felt they put that in my pocket and handed it in for the purpose of being recorded as part of the case. The key fit the safe. That’s what connected the man and the man who didn’t live there to the drugs in the safe. Here is the problem. That very police officer who didn’t properly record finding this key, which was the key to the case, was a short time after the conviction, the subject of a serious police act investigation that resulted in a conclusion that allegations of 13 counts of improperly disclosing information. Three counts of deceit, two counts of discreditable conduct and a count of neglect of duty appeared to be supportive, supported, and the recommendation was he be dismissed. That police officer, a former Victoria police officer, was then arrested following a criminal investigation. Criminal charges weren’t approved with respect to the officer, but he wound up resigning and it would appear from the information in this decision that was just released from the Court of Appeal, that the officer may have been sort of improperly engaging with people involved in criminal activity, but the details of it haven’t been provided. And so, this appeal is going on the basis of a desire to introduce fresh evidence about the conduct of this police officer, who was the one who found this key. That was the key to the case. That wasn’t properly documented. And so, the issue here would appear to be, was it appropriate to rely upon the evidence of this now discredited police officer? And the judge on the original trial indicated that he was concerned about the police officers’ evidence because of how it was handled, how it was not documented, this inexplicable removing from the bedroom before it was photographed for no apparent reason, but, nonetheless. While, expressing reluctance in the judge’s decision; convicted of the drugs in the safe. The judge acquitted of the drugs found in the freezer because the connection was the key. And so the decision of the Court of Appeal just made is one that’s going to allow the substance of the investigation into this, no longer police officer, to be provided, so that there can be an assessment about whether the information about what that officer did could amount to or should amount to fresh evidence when assessing the propriety of the conviction of the man who got the six year jail sentence based on the key that this officer claims to have found and not properly documented at the time.
Adam Stirling [00:22:12] Interesting. Michael Mulligan, thank you so much as always.
Michael T. Mulligan [00:22:16] Thank you. Have a great day.
Adam Stirling [00:22:17] All right. During the second half of our second hour, every Thursday here on CFAX 1070, Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. This has been Legally Speaking.
Automatically Transcribed on June 24, 2022 – MULLIGAN DEFENCE LAWYERS