Monday, July 08, 2002

Fact Finding

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8 JULY 2002
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[1]                  I have to thank the organisers of this conference for inviting me to give an address to this distinguished gathering of Magistrates.  I have to confess to feeling a bit of a fraud in making this presentation.  As Magistrates, each one of you is far more qualified to give this talk on fact-finding than any High Court Judge is.  I worked that out years ago when I myself served as a Magistrate.  It all comes back to what I call the Factor of 10.  Using this factor, I worked out early that each Magistrate does as much trial work as one thousand judges.  You can work it out for yourselves by using the Factor of 10 and making the following elementary calculation:  From all the evidence, any Magistrate has to try 10 times as many cases, 10 times as quickly, as any 10 High Court judges put together.  And, 10x10x10 equals 1,000.  This proves to me that any one Magistrate does more fact finding than any thousand High Court judges.  So, I ask myself, who am I to be talking to you about fact-finding?  I suppose that it could only be my experience, having served as a Magistrate for four years, that qualifies me.  Admittedly, that was 25 years ago.  But, the issues surrounding fact-finding have not changed during that short time.
[2]                  Now, I want to draw on a 1996 paper on the topic Fact Finding and the Judiciary by Justice Gerald Seniuk and Professor John Yuille of Canada published by the Commonwealth Judicial Education Institute and made available to me by Justice Saunders of our Judicial Education Institute.  Plaigerisation is a vice that comes easily to judges and Magistrates.  We call it “following precedent.”  So, I suppose I should not apologise.  The paper by Justice Seniuk and Professor Yuille was amazingly insightful, and I hope that you will be able to read all of it one day.
[3]                  People expect us to resolve disputes in a rational way.  To achieve rationality in coming to a decision, we have to address the two aspects of “foundation” and “reliability”.  Foundation refers to the rational or factual grounds for a decision.  Reliability reflects the ability, given the same foundation, to regularly produce the same decision.  Our justice system aspires to be a rational process of dispute resolution, but the process of fact finding at trial sometimes offends these two basic criteria of rationality: foundation and reliability.  We see foundation thrown out of the window when a magistrate declines to offer reasons for coming to his decision.  There is no foundation for the decision.  We see reliability put in question when the Court of Appeal disagrees with our findings.  One set of fact-finders coming to an opposite decision from another fact-finder on the same evidence.
[4]                  Let us look at some of the bounds of rationality in a criminal trial.  The first rule is that there is no prescribed code guiding fact finding.  Each Magistrate must develop his or her own personal guidelines.  While a criminal trial is a search for truth, the fact finder must engage in a search for proof.  No notion is more closely intertwined with truth than the notion of fact.  Fact may be said to be distinguished from that which is assumed, suspected, alleged, believed, hoped, or feared to be so.  A criminal trial as a rational process involves us identifying the truth, that is the facts, giving reasons for this identification, and giving reasons for any resulting decision.  When we sit as jurors and have to find the facts, we have one advantage over most lay people.  We have the additional quality of being legally qualified.  We can appreciate the rules to apply in deciding what weight to give to certain types of evidence.  We know when to discount some bits of evidence, as being hearsay, for example, and when to give greater weight to others, for example, to an admission against interest.  As judges and magistrates, we are supposed to be well suited for this task because our discipline places a premium on sound judgment.  Sound judgment has been described as “the power of deliberation and discernment that the most troubling cases invariably require and for which no doctrinal sophistication, or sheer intellectual brilliance, is ever a satisfactory substitute.”
[5]                  It used to be thought that if two people in the same situation are required to make a decision and they decide differently, then one of them must have acted unreasonably, either because of imperfect knowledge of the facts or due to some irrational motive.  But we are all familiar with the situation where justices of appeal, respected for their competence and integrity, disagree among themselves in their decisions.  Such appellate disagreements, reflected in majority and minority decisions in a case, are acceptable in legal reasoning.  An appellate decision need not be unanimous to be accepted as just.  We say that a decision is just “if it can be justified by sufficient reasons.”
[6]                  Even at the fact-finding level there can be honest disagreement.  Because facts are supposed to be “hard, brute, inescapable, awkward, and indisputable,” it is less obvious how there can be reasonable disagreement about their existence.  Something either happened or it did not happen.  However, evidence presented in at trial is contested, and the resulting findings of fact based on such evidence are neither hard, inescapable, nor indisputable entities.  They are “findings” of fact.  As such they are a conceptual hybrid which, without a criterion for imposing uniformity, can lead to reasonable disagreement.
[7]                  So, in the task of fact finding, the quest for us is the truth, but our concern is with the problems of proof.  Sometimes, the evidence on an event or issue simply does not exist.  Even if it exists, we cannot cause it to be brought forward.  In our adversarial system, the parties decide which evidence to present, and this may be incomplete.  For this reason, it has been said that we do not as fact-finders ascertain the truth in any real sense.  All that we can do is to give a decision on the evidence presented to us, evidence which is often incomplete, and with the collection and presentation of which we have no control. 
[8]                  But fact-finding is even more complicated than the lack of evidence entails.  The decisions that we come to on the evidence emerge from our human reasoning.  That human reasoning is in part a product of our own personal experiences.  So, lawyers recognise that they can never be sure which way a court or jury will jump on issues of fact.  Many factors combine to make for uncertainty.  When it comes to the believability, the reliability, the credibility, of witnesses, then, unavoidably, we must make a guess about the facts.  There is no doubt that this is a problem of proof.  The question for us is how to find the facts in a trial. 
[9]                  Because of problems such as these our justice system has been described as “imperfect procedural justice.”  It is imperfect because the innocent may be convicted or the guilty set free.  The academics contrast this with “pure procedural justice” where the outcome is always correct or fair if the procedure is properly followed. 
[10]              The search for a reliable procedure has driven our legal system since early times.  We all read in law school about that point in the middle ages when the uncertain judgement of humans began to replace reliance on the judgement of God.  Previously, fact-finders relied on such irrational, primitive and barbarian modes of proof as trial by ordeal, oath and judicial combat.  These gave way to the idea of human juridical competence.  There remains a great deal of uncertainty about these new procedures:  initially, uncertainty about we mere mortals assuming the divine task of determining guilt or innocence, and latterly, the practical uncertainties connected with the unpredictability of judges and juries. 
[11]              The concept of “belief” is central to the common law’s fact-finding process.  A conviction will frequently be based on the Magistrate believing one witness over another.  Belief is an inner state of mind, but to be reasonable it must be based on evidence.  Belief is distinguished by the academics from such concepts as faith or intuition.  John Locke defined faith as resting on authoritative testimony, “the assent to any proposition, not thus made out by the deductions of reason, but upon the credit of the proposer.”  Intuition has been defined as “a direct perception of truth or fact independent of any reasoning process.”  Needless to say, we are not expected to come to our findings based on either faith or intuition.  Fortunately, as fact-finders we can rely on the reluctance of the Court of Appeal to interfere with our findings of fact where they are based on our findings that we believed one or more of the witnesses. 
[12]              Additionally, we all know that it is not unusual for two persons presented with the same evidence to honestly disagree.  Such disagreement may have many different grounds.  Seeing the same things with different eyes, any two of us may honestly and intelligently come to opposite conclusions. 
[13]              Thankfully, because it would be unworkable, there is no prescribed code guiding us as fact finders.  It has proven impossible for the professors to find a rule which is a codification of common sense.  We can only try to achieve the ideal of justice within reach of our human determination.  Each of us must develop a personal list of cases and principles from which we draw most often.  What is needed of us is good judgement where the ambiguities are greatest and the demand for proof so often misplaced.  Good judgement is not simply a type of deduction.  It is not a direct insight whereby we can see that something is obviously the case.  It is a complex phenomenon with two competing goals.  On the one side, sympathy and understanding for both protagonists, and on the other, detachment from the interests of either.  Judgement is only developed through the making of judgements in the real world.  Good judgement in judicial decision-making depends on lengthy experience and training.  The most troubling cases require judgment rather than intellectual brilliance or doctrinal sophistication.  It is impossible to teach judgment.  The faculty of judgement is a mixture of art and science.  While sound judgement cannot be taught, it can be recognised and developed through practice, study and the exchange of experience at conferences such as this. 
[14]              Personally, I find that in our adversarial system of trials, probably nothing counts more in helping fact-finding than the impression that a witness makes on me.  It is difficult in a busy court, acting as court steward, checking the police and the bailiff to ensure they are keeping order, cautioning the lawyers who are talking too loudly at the bar table, observing the spectators at the back of the court to ensure that they are not making signals to witnesses and arrested persons sitting on the bench, all while you have to act as court stenographer writing down all the evidence, to decide who and what you believe.  But, impressions do count.  I do not hesitate to write in the margin a short, cryptic, and contemporaneous note as to whether or not I find a witness credible, or the evidence corroborates other evidence, or amounts to a discrepancy.  It may be an unnecessary note if the case finishes that same day, and I can give my decision on the spot.  But, too many cases get adjourned part heard for that to be a safe assumption.  And, I find that in the event of an adjournment, if I do not have notes in the margins, I have to spend much more time re-reading the evidence carefully to try to remember what my impression of the witness and his testimony was at the time he gave it.
[15]              A Magistrate is expected to be able to make up his or her mind instantly.  I found that carrying work home to write my decision did not help.  It only multiplied the work.  I found it was much easier, at the end of the case, especially if the witnesses had been spread out over a period of weeks or months, to swiftly and silently review the notes of evidence, and to give my findings right there and then, making a note as to my finding and my reasons in the event of an appeal.  Putting question marks against bits of evidence that I find questionable, bold double lines against the margins of bits of evidence that I find particularly compelling, other short notations as to corroboration and discrepancies, is particularly useful, especially if the case is put off to another day, and there is a risk of my forgetting the significance of a particular bit of evidence.  Reserving my decision did not make my finding more accurate, I found.  It only made it much more work to deliver the decision.  In the four years I served as Magistrate, I only once had to deliver a written decision, and I seem to recall being embarrassed to re-read it years later. 
[16]             Let me, in conclusion, once again thank the organisers of this conference for giving me the opportunity to address you on this subject, so important to our work.  I thank you also for having listened to what I have had to offer with such attention.  I wish you a fruitful outcome of this conference, and many more such ones in the years to come.