Review on the Request of Deropia (on behalf of Whole India)
Brief
Your honours and if it pleases the Court,
I offer my assistance in this matter through this brief.
The petitioner submits that the Court erred in its decision on sentence in the matter of The North Pacific v Whole India. In particular, the petitioner argues that the Court improperly reached a conclusion in relation to an image submitted as evidence by Whole India in the course of the trial, namely that the image was doctored, and that this improper conclusion materially affected the sentence Whole India received.
It is my submission that the Court should find that there was no material error on the part of the Court in Whole India and should make a declaration to that effect.
I deal firstly with standing and submit the petitioner does have standing to bring this request.
I move then to consider whether the Court was entitled to reach the conclusion it did. In my submission it was so entitled as: the images formed part of the crime for which Whole India was tried and to which they entered a guilty plea; their falsity followed necessarily from Whole India’s plea; and, the unchallenged evidence before the Court demonstrated their falsity. I further consider what consequence the application of the petitioner's argument as regards a fair trial would have on criminal justice in the region.
I then consider whether the error was material so as to require the resulting sentence to be quashed, submitting that it was not material.
Finally, I address the remedy. In view of my submissions, my primary contention is that no remedy is required but that the Court should declare the Sentencing Order lawful. In the alternative, if there was an immaterial error, I submit the resulting sentence should be maintained, with declarations and quashing relating to the findings of the Court. In the further alternative, if the Court finds there was material error, I submit that the proper disposal of this matter requires that the Court remands this matter for the issue of the images to be tried.
Standing
In general, I submit that the petitioner does have standing to raise this matter on behalf of Whole India. While the petitioner is, in strict terms, not themselves an affected party, there is, in my submission, no good reason to require that a person personally make a request when they intend to be represented by Counsel, provided it is sufficiently clear that the person requesting on their behalf is, in fact, instructed and retained to do so; to the contrary, it makes sense to permit filing by Counsel, in that it avoids those banned or restricted from posting on the forum from being rendered unable to exercise their right to judicial review.
Whole India is plainly affected by the fairness of the decision of the Court in relation to sentencing and such decision is a government action reviewable by the Court.
While not raised on the face of the request, should the matter be raised in submissions, I do submit that the petitioner would have no standing to raise any claim in relation to double jeopardy at this time. Whole India is not being presently tried for a second time in relation to facts alleged nor is there any reason now put before the Court to believe they will be so tried.
The mere risk that government will take unconstitutional action cannot give rise to standing. The wording of the Constitution is clear, to request a review the petitioner must be an “affected party” (Constitution, Article 5, clause 1). This has been considered by the Court, in
Re: Standing and the Definition of Affected Party the Court held that:
an affected party, with respect to one’s the ability to request judicial review, someone who reasonably perceives that their rights have been infringed through action or inaction undertaken by a governmental body or bodies. An affected party also include those affected, adversely or otherwise, by laws passed by the regional assembly and policies enacted by the executive and judicial branches of government.
The affected party must detail in their review request the rights they perceive have been violated and/or the laws put asunder showing a clear connection between the law and how they are personally affected in the situation.
The wording of the Constitution and the Court’s holding are framed at all points as being aimed at actions that have occurred or laws or policies enacted. No suggestion is made of the possibility of a challenge to a prospective action, even one that is imminent.
This is further supported by the Court’s holding in
Re: Court Review of RA Proposals. In that decision the Court held:
The Court is a reactive body, and both the spirit and the letter of the Constitution Article 5, Clause 1 preclude the Court from ruling on something that hasn't actually happened yet, such as potential violation of rights that might be done if a proposal becomes a law.
The Court also stated, in particular, that it considered its decision in that regard to apply to requests other than of the kind it was specifically dealing with.
I cannot pretend that I take no issue with the decision of the Court in
Re: Court Review of RA Proposals. I argued specifically in favour of the possibility of prospective review in certain circumstances in order to vindicate the right to protection against abuse of power. However, the Court plainly rejected any possibility of prospective review and that is now the law.
Consequently, as there arises no double jeopardy at this time (nor even any suggestion of imminent or likely double jeopardy in future), the Court is precluded from considering questions relating to it.
In the alternative, I would submit that it is nonetheless improper for the Court now to do so. To do so would assume that there remain no more proper processes by which the Court can consider the question of double jeopardy. However, double jeopardy would need to be considered by the Court when dealing with definite criminal charges in the form of an indictment which it can review. That is the proper venue for this question to be considered; should the Court allow an indictment to be issued, even then Whole India will retain both the ability to raise an argument in the trial that the proceedings are unconstitutional for reason of double jeopardy and to seek the remedy of a request for review at that stage against an actual decision to allow them to be subjected to double jeopardy.
The Crime and the Indictment
Crimes in The North Pacific are all tried on indictment. This is a requirement of the Court Rules (Court Rules and Procedures, Chapter 1, Section 1, clause 1) and, further, is built into the Legal Code (Legal Code, Section 7.4, clause 31). The function of the indictment is recognised by decision of the Court in its
Advisory Opinion on the Role of the Attorney General,1 in which the Court notes that its role in accepting an indictment is to determine whether the matters stated in the indictment and evidence supporting it would, if true, mean the charged nation was guilty of the crime charged. Indictments are, effectively, required to state how the crime has been committed and to provide evidence to demonstrate such so to meet the standard set out above; that this has been the practice is demonstrated by the longstanding court filings thread, which shows indictments covering the whole of the period of the present Constitution meeting or aiming to meet that standard (though, plainly, not all succeed).
It is submitted that a substantial part of the significance of the indictment, which follows from the above, is that it tells a defendant in a trial what it is that they are accused of and what they would be pleading guilty or not guilty to. A plea is entered not simply to the crime itself, but also to the specific manner alleged by the Prosecutor. This is all the more so, in my submission, where evidence has been called by the prosecutor which is consistent with the indictment and with which no issue is taken by a defendant. If this were not so, a Court sentencing on a guilty plea could make no valid assessment of the crime without nonetheless conducting a trial to determine the manner of its commission, which would render pleas almost wholly without purpose.
The indictment in the matter of Whole India can be seen in the trial thread. Of particular relevance to this review is the final paragraph of the indictment summarising the crime which reads as follows:
After seeing the supposed warning, we detected that this disputed warning was done 26 days ago (now 27 days ago), the day that Red Back issued his satirical response. However, it is suspicious that Red Back requested for Whole India to suspend their campaign before it even began. We believe that Whole Island used their out-of-character browser application to alternate the message of Red Back to benefit theirselves and damage Red Back and The Black Hawks.
It is submitted that this is clearly an averment by the Deputy Attorney that the described image produced by Whole India was falsely edited (in a word, doctored) and that the said image formed part of the commission of the crime charged. This is demonstrated in particular by the paragraph in question being the only part of the summary specifically alleging that Whole India sought to benefit themselves and damage others, which form part of the intention required for the crime; the presence of one or the other intention is necessary for the crime charged to be proven, that is that the deception was “for some benefit or to damage another individual” (Legal Code, Section 1.3, clause 12).
From the above, it follows, in my submission, that the entry of a plea of guilt, without equivocation or reservation, must be taken to amount to a plea of guilt to the charge as described in the indictment. The said indictment, as noted, includes a specific averment as to the described image that was then exhibited by Whole India to Court, namely that the message contained in it was altered by them to show a message that was false, to their benefit and to the damage of others. Consequently, the plea entered by Whole India necessarily included a plea to the doctoring of the image as part of the conduct of the crime alleged against them.
Consistency of a Plea with the Crime
Further or alternatively, it is submitted that the entry of a guilty plea necessarily requires acceptance by Whole India that they are in law guilty of the crime charged and they cannot properly in law sustain, and the Court cannot accept them sustaining, both that they did not commit conduct that formed a necessary part of the crime and that they are guilty.
The elements of the crime charged include, in particular, that false information was provided and that the defendant has “deceived” (Legal Code, Section 1.3, clause 12). These requirements, together with the other requirements of the crime, were considered by the Court in
Re: Standard of Proof and Intent in which the Court held that deception required: that the allegedly deceptive statement is as to a matter of fact; that it is material; and that the defendant knows or can reasonably be expected to know it is untrue.
The principal falsehood concerned here was the statement by Whole India as follows:
Importantly I have got 3 telegrams from Red Back. He is warning me and ordering me to leave the election race. So its a topic of concern
Whole India’s plea must, for them to be guilty, at least include acceptance in law that the above statement was false and that it met the requirements of deception noted above. If they did not accept the above, they cannot have properly entered a plea of guilty.
It is submitted that the statement cannot be false if, in fact, it is true. If Whole India had received the telegram in question, stating “My third warning to you leave the election race”, the above statement that they had been warned and ordered to leave the election race would have been true. They would not, had the telegram in fact been received, be guilty and maintaining in law that such telegram had been received would not have been consistent with a guilty plea.
Further, the third element of deception (that the defendant knows or can reasonably be expected to know the statement is untrue), cannot, it is submitted, be satisfied if the statement is, in fact, true. If Whole India had received the telegram exhibited (stating “My third warning to you leave the election race”), the statement made by them would have been true and they would have know it to be true: no crime would have been committed. Conversely, if they are guilty of the crime, the telegram cannot have been received.
Whole India’s plea must, therefore, have necessarily included acceptance in law that the telegram was false, as if it did not it could not have actually included acceptance of the crime.
Available Evidence and the Circumstances of the Crime
Further or alternatively, it is submitted that even where a plea does not necessitate a conclusion as to facts relating to a crime as charged in an indictment, the Court may and, indeed, must make findings of fact relating to the crime as supported by the evidence received before the entry of a plea.
This follows, in my submission, from the Court’s duty and power to try criminal cases (Constitution, Article 5, clause 1) and the corollary duty and power to determine a punishment in proportion to the crime (Bill of Rights, Article 7 and Legal Code, Chapter 2, clause 1). The Court could not properly try a crime to sentence or give a proportionate sentence to a crime if the Court could not make findings of fact about the conduct of a defendant in committing the crime.
In this matter, it is submitted that the image in question was part of the circumstances of the crime, in particular whether Whole India did or did not believe that the false statement made was false. The Court cannot make any finding of fact about Whole India’s belief without making a finding as to the veracity of the image, for the reasons set out in above part of this brief.
Further, I submit that the wording of the decision of the Court plainly indicates that the Court was not making any decision as to the commission of a separate crime of fraud by producing false evidence to the Court but was considering the circumstances of the fraud charged, in that the Court held:
In committing the crime, the Defendant, as well as making the false claim, also produced images purporting to show the attempted intimidation.
(emphasis added)
As to the evidence for the Court to make a finding of veracity, the only evidence before the Court that was verified by testimony as to its truth was prosecution exhibit A, showing a telegram conversation between Whole India and the injured party; the testimony given in relation to this was that the conversation there shown was real, that it took place and that it was the only conversation between Whole India and the injured party. No objection to any question or any aspect of the testimony was made and no cross-examination was conducted by Whole India or the petitioner; the witness’ account was unchallenged and wholly consistent with the prompt entry of a guilty plea that followed it being given. The Court was under no obligation to require evidence from the Whole India (indeed, the Court is barred from requiring testimony from a defendant) and cannot, in my submission, be faulted for concluding that the defence taking no issue with the witness’ evidence meant anything other than acceptance of it.
The only conclusion that the Court could properly draw on the evidence in relation to the image produced by Whole India was that it was false; any other conclusion would be wholly inconsistent with the unchallenged evidence and with the plea entered.
A Fair Trial
While the petitioner relies on the guarantees of the Bill of Rights to a fair trial, it is submitted this cannot support the request made.
The logic of the petitioner’s position is thus: Whole India submitted evidence in the course of the trial; the Court concluded that the evidence was untrue, in my submissions on the bases set out above; Whole India has thus, effectively, been tried for fraud for submitting the evidence.
This argument is wholly without merit. Its application to a trial is sufficient to demonstrate the ludicrous farce to which it would reduce the criminal process:
A defendant accused of a crime gives evidence, in which they deny all aspects of the crime and say they are not guilty; the Court concludes that the defendant’s evidence has been untruthful and convicts them; the defendant has consequently been deprived of a fair trial in relation to fraud for the evidence saying they are not guilty. The logical result of the argument would be the defendant could not be found guilty, simply because they had denied the crime.
The logic of the petitioner compels the conclusion that the Court is incapable of rendering guilty verdicts in cases where doing so is contrary to the evidence of the defendant, as such verdicts would necessitate a finding that the defendant’s evidence was untruthful and create liability for prosecution. It is a logic that applies universally to trials and to sentencing where the defendant offers evidence against any aspect of the prosecution case. It is a logic that is wholly destructive of effective criminal justice in the region. The Court must reject it.
The Court must be able to reach conclusions about the facts before it in order for trials to be possible, including where the conclusions of the Court open a witness or party to charges concerning the truthfulness of their evidence, and it in no way contravenes the rights referred to for the Court to do so, as it is wholly consistent with and necessary for a system premised on trials. The sheer nonsense that would follow from the petitioner's argument and its patent incompatibility with a system that allows for trials is more than sufficient authority to dismiss the request.
Material Error
In the alternative to the foregoing, should the Court be persuaded that there was error by the Court, I submit that the Court should nonetheless find that, though there was error, it did not materially affect the sentence reached.
The question before the Court when considering sentence is what, in its discretion, is a proportionate punishment (Legal Code, Chapter 2, clause 1). This carries with it implications for the nature of the Court’s decision and the effect of error on them.
First, it is framed as a discretion. This indicates that there is a margin within which the Court may operate; provided the Court is within that margin, it cannot properly be said to be in error as to the result.
Second, the test for determining the scope of the Court’s discretion is what is a proportionate punishment for the crime. This is necessarily an inexact test and requires consideration and weighing of a vast array of factors; while guidance may be had from past cases and recommendations by the parties, it is essentially an intuitive matter for the Court.
Third, and the result of the above, is that the Court should, in my submission, only interfere with a decision of the Court in sentencing where it is satisfied that some error of the Court in making that decision brings the Court outside of what must necessarily be a wide margin in which it has discretion. If the Court could properly reach the same result without the error, the Court should not interfere in the result.
Applying these points to the present issue, in my submission the Court must consider the actual wording of the Court’s decision when looking for what affect an error in relation to the images may have had. The Court’s approach in determining the appropriate sentence was in two stages: first, a determination of the starting point, with reference to the decision in
The North Pacific v Madjack, in which the Court does not consider the issue of the images; second, consideration of the mitigating factors, in relation to which the images are mentioned and the Court held:
They also entered a plea, which is to their benefit, though the Court does consider that this mitigation must be limited by the fact that it was done only after the injured party had been required to give evidence and after doctored images were submitted to the Court.
That is to say, the Court held that it was one of two factors reducing the weight of an element of mitigation.
Had the Court not considered that factor, what would have been the effect on the margin of its discretion? In my submission, it would plainly have been a minor one given the overall context of the case, the fact that the particular element of mitigation was only one of a number, and that it was not the only factor limiting the mitigation to which it related.
Consequently, it is my submission that, if there was error, the Court’s decision was not affected in a material way by any error and that the sentence should be upheld as within its discretion.
Remedy
Plainly, if the Court agrees with my primary case, that there was no error, there will be no remedy for the petitioner and if any form of declaration or order is to be made, it should, in my submission, be a declaration that the sentencing order in The North Pacific v Whole India is lawful.
In the alternative, if the Court disagrees with that case and concludes the Court unlawfully made findings of fact concerning the images but considers that the error was not material, the Court should in my submission: declare that the Court in The North Pacific v Whole India unlawfully considered whether images produced by Whole India were false; quash the findings of the Court that such images were false; but also declare that Sentencing Order in The North Pacific v Whole India is in all other respects lawful.
If the Court disagrees both as to error and materiality, in my submission the proper remedy is to quash the Sentencing Order in The North Pacific v Whole India and to remand the matter back to the Court in that case with, if the Court thinks fit, an order that the Justices who originally heard the matter be recused.
It would not be proper for the Court considering a request for review to determine a sentence. To do so would be contrary to the Rules established by the Court which clearly delineate between a trial and a request for review, which bind the Court, and which place sentencing within the criminal trial process.
Further, depending on what basis the Court determines the decision of the Court to be in error, argumentation or evidence to determine the basis of the sentence may be required. An example of a basis that would require this is if the Court considers that the issue of a fair trial does not preclude a conclusion that the images were false but that it was not a necessary conclusion of a guilty plea and the Court should not have reached the conclusion about the circumstances of the crime on the (unchallenged) evidence without giving Whole India the opportunity to contest the matter.
In such a circumstance there is a clear need for the Court to determine the basis in which it will decide the appropriate punishment, that requires proper argument and consideration by the parties and, potentially, the calling and consideration of evidence. Such tasks form no part of the request for review process and the Court has on several occasions declined to fashion the process to decide such issues and, instead, consistently held that they are matters for a trial. It would be inconsistent with both the Rules and the prior decisions of the Court, in such a circumstance, to do anything other than leave the matter for the trial Court to decide.
1. In relation to the
Advisory Opinion, while I would submit that this review is not the appropriate forum in which to decide its status, I would in any event submit that it is, essentially, a correct statement of the law as it applies to indictments (though plainly a number of its conclusions as to the law in relation to the Attorney General no longer follow, due to amendments of the underlying statutory provisions).
