How to instruct a jury in a criminal trial, and what is required for there to be a criminal organisation: R v Abdullahi, 2023 SCC 19

Judges who have to prepare directions to juries in criminal trials could be assisted by studying R v Abdullahi, 2023 SCC 19 (14 July 2023). The perspective is that of an appellate court, but the majority judgment of Rowe J with concurrence by Wagner CJ, Karakatsanis, Martin, Kasirer, Jamal and O’Bonsawin JJ provides guidance for trial judges.

The essentials are summarised at [72], with the concept of a functional approach explained at [4], the underlying principles reiterated at [35], the requirement that the jury be properly equipped to decide the case explained at [37] (the jury must be both accurately and sufficiently instructed), the difference between mandatory and contingent instructions (at [48], [49]), and the importance of the context of the trial emphasised at [57].

This appeal also addresses the essential requirements for proof of the existence of a criminal organisation, with case law explaining that such an organisation (in contrast to, for example, a mere conspiracy [80]) to be “organised” must have both structure and continuity (see [76] ff). While the various circumstances of each case require flexible assessment, it is an error (as it was in this case) to take a flexible approach to the requirements of structure and continuity [81]. Improper reasoning can flow from this error ([84] ff). Here, the trial judge had failed to expand upon the statutory definition of criminal organisation by addressing the requirements of structure and continuity [89] and so had failed to properly equip the jury to decide the case.

It was on the issue of whether the judge had properly equipped the jury to decide the issue of whether the facts established the existence of a criminal organisation that Côté J dissented ([99]-[100]. Points of criticism of the majority’s categorisation of errors in jury instructions (eg at [107]) are rather weakened by the reality that this is a sole dissent in a court of final appeal.

Procedural delay: Morgan v R (Jamaica) [2023] UKPC 25 and Yikar v R [2023] NZCA 296

In law, you can’t gain an advantage from your own inexcusable procedural delay. The word inexcusable makes that obvious, but is there just to acknowledge that sometimes an understandable mistake may be made or circumstances may change.

Two recent cases illustrate this. The prosecution was not (ultimately) successful in opposing an application for leave to appeal out of time against sentence in Morgan v R (Jamaica) [2023] UKPC 25 (11 July 2023), and a late application for name suppression was an abuse of process in Yikar v R [2023] NZCA 296 (13 July 2023).

In Morgan, the delay was the fault of officials. It was significant that the proposed appeal apparently had merit, and it was incorrect on the particular facts to suggest that because the sentence had been served the issue was academic (at [69]-[72]). Nor did it assist the prosecution that through official error no record of the original sentencing remarks had been produced. At [73]:

“ … it would offend the basic principles of fairness that failures by the justice system, for which the appellant can bear no responsibility, should amount to a countervailing criterion in the exercise of discretion under the proviso to hear and determine an appeal. The Board considers that the Court of Appeal was in error when it concluded that a countervailing criterion was the justice system’s own failure to produce a record of the proceedings in the Resident Magistrate’s Court.”

Public interest also strongly favoured ventilating the errors in order to maintain public confidence in the justice system ([74]).

The decision whether to permit an out-of-time appeal against sentence was a discretionary matter, requiring factors for and against to be considered ([66]), including finality, merit, whether the issue is academic, the wider public interest, the period of delay and the extent to which the appellant was in default, and here there had been a serious miscarriage of justice. At [76]:

“… the Board sets aside the Court of Appeal’s exercise of its discretion and exercises the discretion afresh. In doing so the Board takes into account the following criteria, namely, (a) the appellant has a meritorious appeal against sentence; (b) the appellant has done everything reasonably possible to file his grounds for appeal with the Clerk of the Courts; (c) none of the delay can be attributed to the appellant; (d) the appeal is not “academic”, see paras 70-72 above; (e) the failure of the judicial system in not producing the Resident Magistrate’s Court record is not a criterion to be taken into account against hearing and determining the appeal, see para 73 above; and (f) the appeal is of general as well as particular significance, see para 74 above.”

I have suggested, in discussing Pierre v R (Bahamas) here on June 16, 2023, that late applications for leave to appeal against conviction should be addressed by focusing mainly on the question of merit. The wider approach, in which more factors are relevant to the exercise of the discretion to grant leave, seems more appropriate for appeals against sentence.

In Yikar, the late application for interim name suppression was, in context, an abuse of process for three reasons, stated at [25]. The factual background is fairly complex, but the Court usefully reviews the abuse of process doctrine at [21]-[24], including references to decisions of the House of Lords, the Privy Council, the Court of Appeal of England and Wales, as well as local decisions. Failing to take an opportunity to make the application, and attempting to gain a collateral advantage were, in the Court’s opinion, significant here.