Appellate review of grounds for prosecution: Attorney-General of Trinidad and Tobago v Harridath Maharaj [2024] UKSC 1

The Privy Council’s recent consideration of the tort of malicious prosecution is of some interest to criminal lawyers insofar as it considers the proper appellate approach to the different issues of malice and the sufficiency of grounds for prosecution: Attorney-General of Trinidad and Tobago v Harridath Maharaj [2024] UKPC 1 (25 January 2024).

Whether the prosecutor was motivated by malice is a question of fact, which would only have needed to be considered here if there were insufficient grounds for the bringing of the prosecution or if bringing the prosecution was unreasonable in the circumstances. Sufficiency and reasonableness are matters to be assessed by evaluative assessment. On questions of fact, an appellate court will assess the record of the evidence as best it can, and will endeavour to make up its own mind about what the facts were [64]. This is a process that in New Zealand we call evaluative judgement. [1] But on the sufficiency and reasonableness issue, which was the issue in this appeal, the appellate court will recognise that reasonable minds may differ, and the appeal is analysed by way of review [66]. Here, the grounds for prosecuting were, after analysis, found to be sufficient and the decision to prosecute was reasonable [77], so the question of malice did not need to be considered by the Board (and in any event there was nothing on the record to suggest malice) [79]. The reasonableness aspect of the decision to prosecute is summarised in the recognition that the prosecutor viewed the available evidence with proper caution and took into account evidence in favour of the defendant [77].

This appeal illustrates how different issues are analysed in different ways on appeal. [2] Here, the logical structure put the issue that required review (or what the Board calls “evaluative assessment”) before the issue - which did not need to be considered in this appeal - of fact, namely whether the prosecutor acted maliciously. As far as the tort of malicious prosecution is concerned, if there are proper grounds for a prosecution and the decision to prosecute is reasonable then the plaintiff fails. If there had not been proper grounds to prosecute, or if the decision to prosecute had been unreasonable, the issue would have been whether the prosecutor had acted maliciously.

Often, the logical structure will be the other way around: facts before discretion, as where a factual threshold has to be satisfied before a discretion is exercised.

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[1] I use the spelling judgement because that’s a way to distinguish between the process and the result. The reasonableness of the decision to prosecute is subject to appellate review. This is clear at [66]. Whether the decision to prosecute was supported by reasonable and probable cause is an issue that requires what the Board calls assessment, and this is different from the exercise of determining a fact. I call the former a discretion because it is analysed on appeal by way of review, and the latter an evaluative judgement because on appeal the analysis is of the sort described at [64]. "Review" and "evaluative judgement" are both terms currently applicable to the differing analyses in New Zealand case law. Usually a prosecutor's discretion is confined within narrow limits, but for some offences an alternative to prosecution, such as diversion, may require consideration and the discretion is more obvious.

[2] No one claims that it is always easy to distinguish between appeals against determinations of fact (often classified as general appeals) and appeals against exercises of discretion: Kacem v Bashir [2010] NZSC 112 at [32]. But there is nothing that is in this context discretionary about fact finding: deciding what evidence to accept is a matter of judgement.

Jury directions as exercises in comprehension: Huxley v The Queen [2023] HCA 40

It is a commonplace observation that people who are good at reading might come to different interpretations of the same text.

Also, it is not unusual in a joint trial for different defendants to react differently to the evidence of a witness. The witness might give evidence that incriminates one defendant while exculpating another.

Both these points are illustrated in Huxley v The Queen [2023] HCA 40.

The trial judge had thought that it would be “madness … leading to total confusion” and “gibberish” [17] to require the jury to apply different standards of proof to the evidence of a witness depending on which defendant’s case they are considering.

The judge was so plainly wrong about that, I suggest, that it is surprising that the prosecutor (who would be just as concerned as defence counsel that the trial should be conducted according to law) did not offer a suggestion to avoid the possibility of any error by the judge when directing the jury.

The point was that when considering the evidence which was central to the prosecutor’s case the jury had to be satisfied of its truth beyond reasonable doubt, but when considering the same evidence as part of the case for a co-defendant they had only to ask whether it raised a reasonable doubt as to the guilt of that co-defendant.

The judge got the first requirement right, and this appeal was about the question of law as to whether the second requirement was satisfied upon a consideration of the summing up as a whole.

This comprehension exercise produced different answers, the Court splitting 2-3. The majority, Gordon, Steward and Gleeson JJ, held that the judge had made no error of law and the appeal was dismissed. The minority, Gageler CJ and Jagot J, considered that the error had been made and that there should have been a new trial. The majority placed significance on the absence of any request by defence counsel for a re-direction [92]ff. The point had been raised in chambers before the evidence in the trial had been concluded, and defence counsel may have thought the judge had ruled on the point [29].

It is at that early stage, when the potential difficulty was raised in chambers before the conclusion of all the evidence, that help from the prosecutor could have ensured a clear judicial direction and avoided the need for this appeal.

The use of question trails (setting out questions for the jury to answer among themselves as they work towards verdicts) could have helped avoid confusion here. Was the jury in a position to consider “as a whole” (heading at [68]) a summing up that lasted from the middle of one day to the late afternoon of the next day [18]? If not, is the more leisurely consideration of a transcript of the summing up - here extending to 93 pages - by appellate judges, relevant? Are juries better at comprehension than appellate judges? If five senior judges can't agree on understanding the summing up, should we expect 12 jurors to have agreed on it?