Why turn to fiction for mind-bending exercises in logical absurdity? The real world of the courts provide much stranger fare.

The various adventures of Alice in Wonderland and Through the Looking Glass appear to have a particular resonance for lawyers. I've quoted freely from them in my Pundit blogs on a number of occasions. And this article surveys the regularity with which it is referenced in US case law, including this case packing in no less than 9 quotations to its 23 pages.

So what is it about Lewis Carroll's works that appeal to the legally minded? Well, some might say it is a sign that such folk never really progress beyond a somewhat childish mental state - but anyone making that argument is just a big meany and I'm going to tell their Mums on them. I'd instead argue that Alice's jurisprudential appeal lies in the creation of a fantasy land in which the ordinary rules of logic appear to apply, only in ways that bear little relation to the "ordinary" world of waking life. Or, as Lewis Carroll put it;

‘I know what you’re thinking about,’ said Tweedledum: ‘but it isn’t so, nohow.’

‘Contrariwise,’ continued Tweedledee, ‘if it was so, it might be; and if it were so, it would be; but as it isn’t, it ain’t. That’s logic.’

Because sometimes the legal process twists and contorts its way to a conclusion in a manner that Carrol himself might consider just a little bit too freaky to put on a page. Take, for instance, the Supreme Court's just announced decision in the case of Trevor John Momo Wilson v The Queen. Logically impeccable - but leading to a conclusion that is pretty bonkers, when you step back and think about it.

I covered the general background to this case in this post from 2012. In a nutshell it stems from the Police's decision back in 2010 to use false search warrants and criminal charges against a fake person in order to help infiltrate an undercover officer into the Red Devils gang in Nelson. Everyone - including the Crown - now agrees that this was a very silly thing to do (it involved actions amounting to the offence of forgery, for one thing), it had the potential to undermine the public trust in court processes (although by how much was very much a live matter of debate) and it won't be done again (at least, until Parliament authorises such actions by legislation).

However, the actions also worked, in that the officer became a trusted associate and so was able to gather a lot of evidence against the members of the gang. That evidence was used in support of a whole bunch of charges against those gang members, for stuff like participation in an organised criminal group, supply of methamphetamine or other drugs, conspiracy to cause grievous bodily harm, threatening to kill and so on. Mr Wilson, the subject of the Supreme Court case, then plead guilty to possession for supply of cannabis, party pills and LSD ... an action that lead to his conviction and so takes him out of the story for the moment.

For the other members of the gang didn't follow Mr Wilson's lead. Instead, their lawyers challenged the charges against them on the grounds that the Police's actions during the investigation were such a grievous abuse of process that the court ought to "stay" the resultant proceedings. And the High Court agreed with that argument (as I discussed in my earlier post) so issued a stay, which is effectively the same as an acquittal (innocent until proven guilty, and all that).

Except that the Crown was unhappy with the High Court's ruling, and so took it to the Court of Appeal. Which then agreed with the Crown that the High Court had misapplied the law governing when such stays ought to be granted and sent the matter back to the High Court for a rehearing. Which then reconsidered the issue at a new hearing and, citing "new evidence" that had come to light since the previous decision, reinstated the stay of proceeding. And this time the Crown must have decided that enough time and effort had been spent on the matter, so it didn't appeal.

Whew! That's already a fairly tortuous journey. But we're only really getting to the strange bit of it. Because remember Mr Wilson, who had plead guilty back at the start of things? Well, he now piped up and complained that he has ended up with a conviction as the result of an investigative process that the High Court has found was such an abuse of process that it ought not to be allowed to support a criminal trial. So Mr Wilson's case separately made its way up to the Supreme Court to decide if his conviction ought to stand.

Now, note what was under appeal here. It was not the second High Court decision - the one reinstating the stay of proceeding in respect of the other gang members. Recall that the Crown decided to just let that lie. Rather, it was the Court of Appeal's decision that the outcome of the original High Court case was wrong in law that was at issue. And the Supreme Court upheld the Court of Appeal's approach to the matter, emphasising that where the abuse of process does not result in an "unfair trial" (in the sense of risking the conviction of an innocent person), then a stay of proceeding "is an extreme remedy which will only be given in the clearest of cases."

The problem is, of course, that the High Court on its second go-round after the Court of Appeal's ruling had still concluded that the Police's actions warranted a stay of proceeding (based on "new evidence" that had emerged since the first decision). So even though that decision was not directly under appeal, the Supreme Court had a look at whether it was correct. And it found that it wasn't - the "new evidence" that Justice Collins (the judge at the second High Court hearing) had relied on wasn't actually "new" at all. Furthermore, and somewhat embarrassingly, it called Justice Collins out for some basic errors in his legal analysis (see para. [88]), including this zinger:

Third, the Judge was wrong to rely on Grant in the way that he did. In Maxwell, Dyson JSC and Lord Brown (delivering the principal judgments for the majority and minority of the [UK] Supreme Court respectively) both doubted the correctness of the Court of Appeal’s decision in Grant. In Warren, the Privy Council disapproved it, and both the New Zealand Court of Appeal (in Antonievic) and the Court of Appeal of Hong Kong (in HKSAR v Ng Chun To Raymond) have refused to follow it. All this was readily apparent from the Court of Appeal’s judgment in Antonievic.

All of which means that that the Supreme Court thought that the second High Court decision reinstating the stay was also wrong - the gang members should have faced trial for at least the more serious offences that they were charged with, even though the investigation that lead to those charges involved an abuse of process by the Police. However, and here's the kicker so I'll emphasise it, it's now too late to do anything about that! The Crown didn't appeal the decision at the time, and now the deadline for such appeals has lapsed.

Which means, of course, that the stay on those gang members' charges ... stays. Meaning that they escape trial (and likely conviction, in at least some/many cases) for their alleged actions, even though they legally should have had to do so. Meaning that of all the individuals caught up in this legal mess, only Mr Wilson ends up with a conviction.

Which, the Supreme Court went on to say, was very unfair for Mr Wilson. If he had known that his fellow gang member accused were going to walk free from court with the charges against them stayed, he wouldn't have plead guilty and so would not have been convicted either. Because he, too, would never have been tried ... even though he ought to have been ... because the High Court decision saying he (and other gang members) shouldn't be tried was wrong. All of which caused the Supreme Court to metaphorically throw up its hands and conclude:

Although we have held that this stay should not have been granted, against the background that it was granted and that the co-defendants have had the benefit of a decision that there was an abuse of process sufficient to justify a stay, we consider that it would be unfair to allow the appellant’s convictions to stand, and would constitute a miscarriage of justice. Given the unusual circumstances of the case, we consider that we should allow the appeal and quash the appellant’s convictions.

Let's recap, then. As a result of this little trip through legal wonderland, we now have no gang members convicted for their criminal offending, even though it seems certain that many (most?) of them were up to their necks in nefarious goings on. Most of those members had the charges against them stayed because the Police bungled the investigation. And the one of them who actually plead guilty to his offending can't be convicted because it would be unfair to do so when his co-accused walked free without trial. But those co-accused shouldn't have walked free without trial, because the Supreme Court says the judge who let it happen was wrong to do so. But because that judge's decision wasn't the one that was being appealed to the Supreme Court, it has to stand ... and so it still would be wrong to keep a conviction against the person who actually plead guilty.

All of which may make perfect legal sense. But it's still pretty bonkers, no?

Comments (5)

by Nick Gibbs on December 16, 2015
Nick Gibbs

It would have been very interesting if this case had involved a murder, as the media would be all over it, especially if the culprit was allowed to walk free despite a confession.

The public would demand a conviction and what would the courts do then?  Return to the works of Carroll for more pointers on legal logic and send culprit to prison is my guess. Criminal justice is still a very arbitrary beast.

One question. Have the courts therefore deemed that the police can engage in this kind of undercover work,false convictions etc...?

by Kyle Matthews on December 16, 2015
Kyle Matthews

Presumably this is not a new thing in the legal world - a group of people are charged, one for whatever reason pleads guilty, and the rest get off on a technicality?

Will the first always then have the opportunity to appeal and subsequently get off?

Presumably (though not necessarily) they plead guilty because they were in fact guilty, it seems somewhat strange to the lay person to let them go. 

by Andrew Geddis on December 16, 2015
Andrew Geddis

@Nick.

 Have the courts therefore deemed that the police can engage in this kind of undercover work, false convictions etc...

No - the Supreme Court made it very clear that what the Police did during the operation was wrong (and the Crown admitted this, too). And one of the reasons that the Supreme Court said that the trials should not have been stayed because of that wrongdoing was that the behaviour was very much a one-off (not part of a pattern of behaviour by the Police) that would not be repeated again (so the Police promised). 

If the Police now did try something like this again (after recognising what they did was wrong and undertaking not to), then that in itself may represent the "clearest of cases" that justifies the "extreme remedy" of a stay of proceeding.

@Kyle,

Presumably (though not necessarily) they plead guilty because they were in fact guilty, it seems somewhat strange to the lay person to let them go.

Yes! It does!! Especially when their argument for why their guilty plea should be set aside essentially amounts to that if they hadn't plead guilty, then a court would (wrongly) have said they didn't have to stand trial and so they (wrongly) wouldn't have been convicted!

There are, however, some circumstances in which a guilty plea should be vacated - imagine you are charged with drink driving based on a blood alcohol reading from a police lab. You don't think that you drank that much, but you don't want the expense of hiring a lawyer to fight the issue (and anyway, how can you beat a blood alcohol reading?). So you plead guilty to get the matter over and done with. Then it turns out that the police lab had systemic problems with its testing procedures and so its results can't be trusted. Obviously in this case the fact you decided to plead guilty rather than fight the charge shouldn't stop your conviction being overturned.

by Stewart Hawkins on December 16, 2015
Stewart Hawkins

The Law is a ass.

by Roger Barker on January 13, 2016
Roger Barker

One of the reasons I have such happy memories of studying the law of Evidence in 1970 at VUW was precisely the feeling that much of this area of the law was developed to entertain law students and compensate for stuff like civil procedure, taxation, etc!.  More seriously, so much of these sorts of rules seem to forget that crimes are committed against other people - they have victims - who surely have a right to just outcomes.  In this sort of case, the challenge is to a process for punishing offending police officers/the Police/the Crown for proven misconduct, while still recognising that to effectively acquit a guilty offender constitutes a miscarriage of justice - a wrong outcome.

Perhaps we do have to rely on judicial discretion; but can we be sure that even the judiciary (drawn, of course, from practising counsel) have risen above the idea that court proceedings are basically a game to be played between two competing teams of counsel, the outcome depending more on the relative skills of the teams, than where the truth of the matter actually lies?

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