I 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. 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.
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. Plagiarism is a vice that comes easily to us
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.
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.
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 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.”
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.”
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.
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.
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.
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.
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.
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 knowledge 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.” We are not expected
to come to our findings based on either faith or intuition. Fortunately, 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.
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.
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.
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 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.
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.
A
speech at the Magistrates’ Orientation Programme held in Antigua on 8 July 2002
