Ascertainable law

The law must be ascertainable. This is a requirement for the enforceability of enacted law and for the validity of common law. In jurisdictions where the common law creates offences, it must be possible to find out what they are.

It doesn't matter how sure we now are of what the common law used to be, if it was uncertain when a person did acts that are now alleged to have been contrary to that law.

In PGA v The Queen [2012] HCA 21 (30 May 2012) the issue was whether in 1963 in South Australia, where rape was a common law crime, a wife could withdraw her consent to sexual intercourse with her husband.

To find that out, one would think that it would be sufficient to consult the case law of the time. Were husbands charged with raping their wives? Did judges say that that was rape? What did legal scholars think? If a man went to his lawyer then and asked, what would he have been told?

According to the majority in PGA, a lawyer back then would have concluded that a wife could withdraw her consent to sexual intercourse with her husband. This view would have been reached by considering the fact that marriage is not permanent [59], that marriage is a consensual contract which could be breached by wilful and persistent refusal of sexual relations – implying that some refusal is possible [60], that relevant legislation required cohabitation but did not require matrimonial intercourse as an order to that effect would be unenforceable [60], that a wife had a distinct legal personality from her husband, particularly as to property rights, and this undermined any idea of her being her husband's property [61], and that women had the vote and had recognised rights to commercial and professional lives [60]-[61].

These considerations, according to the majority reasoning, would have led a lawyer in 1963 to advise that a husband could be guilty of raping his wife.

It is for judges or the legislature to change the common law. The majority review at [19]-[24] the meaning of the term "the common law", emphasising how judicial precedents may diminish in value over time. Old decisions can become obsolete and inoperative.

But, one would have thought, it is for judges to say when that obsolescence and inoperativeness has led to a change in the common law, and to declare the new law for the future. The majority in PGA have made that declaration retrospectively. One does not have to say that they are wrong in deciding that a judge in 1963 would have made the same declaration, to recognise the injustice from the point of view of the defendant who now faces historical charges including two counts of rape of his then wife.

Our natural aversion to rape may cloud perception of this injustice. If it was reasonably likely that in 1963 a husband would have been advised that as far as the law was concerned he was entitled to sexual intercourse with his wife because there was no judicial decision to the contrary, the new law was not ascertainable. A court that changed the law, or at least made it ascertainable, should only do so prospectively, acquitting this defendant but making the law clear from then on. Enacted law is "law" if properly enacted, but if it is not reasonably ascertainable it will be unenforceable, whereas common law must be ascertainable in order to be "law". If enacted criminal law is not ascertainable a prosecution should be stayed: Christian v R (The Pitcairn Islands) [2006] UKPC 47 at [24] (not cited in PGA):

"Their Lordships would accept that the fact that a law had not been published and could not reasonably have been known to exist may be a ground for staying a prosecution for contravention of that law as an abuse of process... .",

The ECtHR has upheld convictions where retrospective change in the law has been reasonably foreseeable, as in the removal of the marital exemption defence to rape, upholding R v R [1992] 1 AC 599: SW and CR v UK (1996) 21 E.H.R.R. 363. It may be that with increasing focus on the idea of the rule of law this tolerance of injustice to the defendant whose prosecution marked the change in the law will diminish. The traditional view that judges declare the common law as it has been from time immemorial is now regarded as an outdated legal fiction.


Just as reasonable minds may differ on the application of known law to the facts of a case, so too may reasonable minds differ over how and when the common law may change. An obligation to obey law that has not yet been declared is a form of "common law" not within the definitions recognised by the majority in PGA. It is unjust.


There is plenty of authority for this, as Heydon and Bell JJ demonstrate in their dissenting judgments. A helpful summary from the House of Lords is in R v Rimmington [2005] UKHL 63 especially at [33] which concludes:


"There are two guiding principles: no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done. If the ambit of a common law offence is to be enlarged, it "must be done step by step on a case by case basis and not with one large leap": R v Clark (Mark) [2003] EWCA Crim 991, [2003] 2 Cr App R 363, para 13."

 There is a risk of cherry-picking authorities in this sort of argument, but I recommend Rogers v Tennessee, 532 U.S. 451 (2001) as an illustration of the upholding of a common law change but only where there had been a pervasive change in the law that should have put the defendant on notice that the law was clearly going to change. The change was not unfair or arbitrary. Scalia J dissented on the grounds that restrictions on legislative retrospective change should also apply to retrospective common law change. But even on the majority view there is a requirement of ascertainability before a defendant is bound by future decisions changing the common law.

Anyway, this interesting case raises questions about who defines the common law, is it just social mores or does it have to be declared by judges, whether retrospective effect should be more acceptable for common law offences than for legislated offences, and the extent to which social and legislative changes in some areas can influence assumptions about the common law in other areas. In New Zealand we have only one common law offence - some forms of contempt of court - but we do have common law defences.  It was not until as recently as 1986 that legislation removed the spousal immunity defence to rape, which implies that it did exist at common law (at least in a form that had been modified by earlier legislation) until then. Some people think we are behind Australia in our development, but - as one who can remember 1963 and the grassy knoll quite clearly - I don't think that in 1986 we were 23 years behind.

What is a verdict?

And for more on procedure as a means of giving effect to the substance of the law, see the failure of this concept in Blueford v Arkansas USSC No 10-1320, 24 May 2012.

A fundamental precept of the criminal law is that a jury will obey instructions from the judge. Here the jury were told the sequence required by the law of Arkansas for the deciding of verdicts on multiple and included charges. A decision on the most serious charge was required first, then the jury would proceed to the next serious, and so on until either they had reached a verdict of guilty, in which case they would stop there, or they had reached not guilty verdicts on each charge.

The jury had difficult reaching the end of this process,and the judge asked if they had decided any of the charges. The foreman said they had agreed that the defendant was not guilty on the two most serious charges. The judge told them to resume their deliberations and try to reach the end of the process. They were unsuccessful and they were discharged. On retrial the defendant was charged with all counts and pleaded previous acquittal on the two most serious ones.

The Supreme Court held by a majority that the special plea was not available. The jury had returned to the jury room and could have changed their minds on the most serious charges - they had not been asked whether they had. There were no verdicts returned at the trial.

Sotomayor J for the minority emphasised the importance of the rule against double jeopardy. She analysed the Arkansas process for deciding multiple charges of this kind and found it most unrealistic for the majority to say the jury might have changed their minds. In reality they had returned verdicts of not guilty on the two most serious charges.

True enough, the ritual incantations had not been followed in receiving the verdicts, but did that matter? What was the point of instructing the jury how to proceed, if that had no consequence because the technical question about verdicts was not asked by the judge? Had the jury decided the most serious charges? Should the prosecution have another opportunity to prove them? Did procedure serve the interests of justice here?

Too late! Or is it ...?

As everyone knows, procedural laws are for bringing the law into effect. Procedure brings the law to life, as I once said. Another thing that everyone knows is that senior appellate courts spend much of their time getting people to be sensible.

Lucaszewski v The District Court in Torun, Poland [2012] UKSC 20 (23 May 2012) gets people to be sensible about time limits for filing notices when statutory requirements are expressed in absolute terms.

The Court did not overrule Mucelli v Govt of Albania [2009] UKHL 2 (21 January 2009), noted here on 23 January 2009, although Lady Hale would have preferred to. However she agreed with the reasoning and conclusion of the leading judgment, delivered by Lord Mance.

Just as Mucelli reminded us of the Latin dies non, so does Lord Mance now remind us of  non constat [19]. These things don't go unnoticed.

Anyway, Lucaszewski allows that timely notice of intention to appeal an extradition order can be given although the document does not comply with the enacted form, if the court decides to permit the informality. Also, where a defendant is a citizen, as opposed to an alien, his civil right to enter and remain in the country attracts the right to a fair hearing when extradition is sought, and the court may extend time for the defendant to file documents if that would promote his rights, even if no discretion to extend time appears on the face of an enactment.

"[37] ...  I am not persuaded that the interests of finality and certainty outweigh the interests of ensuring proper access to justice by appeal in the limited number of extradition cases where this would otherwise be denied. There would not be "a reasonable relationship of proportionality between the means employed and the aim sought to be achieved".

Although this introduces a discrimination between aliens and citizens, which concerned Lady Hale, the more general point is that procedure must promote the aims of justice.

Causing moral responsibility

In Maybin v R, 2012 SCC 24 (18 May 2012) Karakatsanis J for the Court discusses the criteria for determining that D's acts have caused the actus reus, here the death of V, to an extent that criminal responsibility could be attributed to D. Essentially this is a moral question.

The legal requirement is that D's acts were a significant contributing cause of the death. There may be several causes of the death, but if D's contribution was more than de minimis, causation will be established for the purpose of deciding whether D is criminally responsible.

Legal responsibility  requires that D's acts had sufficient connection to that harm to warrant attribution of criminal responsibility [16]. There might be an insufficient connection if there was an intervening act so that D's acts were not a significant contributing cause of the harm. Such intervening acts might not sever the causal link between D's acts and the harm if they should have been foreseen by D at the time he acted [26], and this does not mean that D should have foreseen the exact details of the intervening act, but some sort of appreciation of what might happen, akin perhaps to the mens rea requirements of the offence, may be enough to make D responsible [36], [38].

The independent acts might not sever the causal connection between D's acts and the harm if, although those independent acts were unforeseeable, the relative weights of the causes of the harm [46] were such as to leave a more than minimal causal link attributable to D.

In any event, these are just analytical aids, not legal tests, for determining causal responsibility. In different factual matrices they might point in different ways. The fundamental question is always whether D's acts were a significant contributing cause of the harm.

The moral question whether D should be held responsible when there are multiple causes of a harm will often attract different answers, as is illustrated in the differences of opinion in the Court of Appeal here. There had been a fight in a bar and D had knocked out V, who was then struck by a third person, a bouncer. V died and D was charged with manslaughter. You be the judge (after reading the full facts in the case, of course).

Suppressing contempt

Our Court of Appeal has today confirmed the inherent power of a court to suppress its judgments on an interim basis in order to protect the defendant's right to a fair trial: Siemer v Solicitor-General [2012] NZCA 188.

This is a departure from Privy Council and House of Lords decisions: Independent Publishing Ltd v Attorney-General of Trinidad and Tobago [2004] UKPC 26, [2005] 1 AC 190, Attorney-General v Leveller Magazine Ltd [1979] AC 440. Since the establishment of our Supreme Court, decisions of the Privy Council from other jurisdictions are of persuasive authority only [37].

The Court of Appeal held [91] that the same position on suppression orders applies under the Criminal Procedure Act 2011 ("CPA"). I will consider the other aspects of the judgment by reference to what the position should be after commencement of that Act.

Of equal interest is the Court's discussion of contempt proceedings. Sometimes contempt is an offence. This is when an enactment creates the offence and provides for a punishment. Provisions doing that, however, provide that they do not limit the power of a court to punish for contempt: see s 365(3) of the CPA.

Contempt that is punishable pursuant to the court's inherent power is probably not an "offence" although there is no definition of "offence" in the CPA except in the schedule where a definition is inserted in another act. In any event, the Court of Appeal accepted [96] that contempt proceedings outside those defined in an enactment are neither criminal nor civil proceedings, and they are not prosecuted by the laying of an information (nor, by implication, by the filing of a charging document under the CPA). Although the criminal standard of proof applies, these sorts of contempt do not result in a conviction but rather in a "finding" of contempt. Such a finding, and the sentence, may be appealed under the CPA, s 260.

If contempt outside the statutory definition is an offence, proceedings in respect of it should be commenced under the CPA by the filing of a charging document. However it is more likely that it is not an offence and the Solicitor-General commences proceedings for this sort of contempt by the filing of an originating application and supporting affidavits, and the defendant may answer by affidavit [93]. The criminal procedure of entering a plea does not apply.

In Siemer the appellant had published a judgment that the High Court had temporarily suppressed. That suppression order was designed to protect the right of defendants in a notorious criminal case to fair trials. As a result of losing the appeal the defendant was ordered to commence serving his sentence of six weeks in prison.

Dicta in this case [68]-[72] on the right to a fair trial are significant too. The defendants in the criminal case had the right to a fair trial and the court used its inherent power to regulate its procedures for the ultimate objective of securing fairness. However Mr Siemer, who was not subject to criminal proceedings but only to the "neither criminal nor civil" proceedings for contempt, did not have the protection of the rights given by the New Zealand Bill of Rights Act 1990 to people who are charged with offences [95]. But he did have the right to justice, enjoyed by everyone pursuant to s 27 of the Bill of Rights, which applies the rules of natural justice to the determination of his rights, obligations or interests.