The finality of acquittals in jury trials: McElrath v Georgia 22-721 USSC

Acquittals are final, even if they might be based on flawed reasoning: McElrath v Georgia 22-721 USSC (21 February 2024). [1]

Authorities referred to in this case make the following points. An acquittal by a jury ends a defendant’s jeopardy. A jury’s verdict of acquittal cannot be reviewed and this is the most fundamental aspect of double jeopardy jurisprudence. An acquittal is a ruling that the prosecution’s proof is insufficient to establish criminal liability. A jury’s verdict of not guilty on the grounds of insanity is such a ruling. It does not matter if this verdict is accompanied by an apparently inconsistent verdict on another charge; an acquittal is still an acquittal. Any judicial speculation about the jury’s reasons for a verdict of acquittal would impermissably usurp the jury’s right to have its deliberations free from such scrutiny. This remains so, while it has long been recognized that a jury’s verdict may be the result of compromise, compassion, lenity, or misunderstanding of the law. The inviolability of a jury’s verdict of acquittal is a bright-line rule that exists to preserve the jury’s overriding responsibility to stand between the accused and those who command the criminal sanction.

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[1] There can be statutory exceptions to the finality of acquittals. For example, see the Criminal Code of Canada, s 686(4). Acquittals are not lightly overturned under this provision: R v Sutton, 2000 SCC 50, and see R v Khill, 2021 SCC 37. In New Zealand an appeal on a question of law does not include a question that arose from a jury verdict, Criminal Procedure Act 2011, s 296(4)(a).

Agreement, knowledge and liability: statutory construction in R v Rohan (a pseudonym) [2024] HCA 3

If you agree with someone to commit an offence, how much do you need to know?

You don’t need to know that the proposed course of conduct is unlawful, because ignorance of the law is no excuse.

But you do need to know what conduct is proposed and you also need to have the state of mind required by the definition of the offence.

Not all offences require knowledge or recklessness as to the existence of all the physical facts that have to be proved to establish liability.

For example, an offence of supplying a controlled drug to a person who is under a specified age. Liability need not, depending on the definition of the offence, require proof that the defendant knew of the recipient’s age. There might, again depending on the relevant legislation, be a defence of reasonable belief that the person was over the specified age.

Again, an offence of sexually penetrating a person who is under a specified age need not require proof that the defendant knew of the person’s age. There may, again depending on the legislation, not be a defence of reasonable mistake as to the person’s age.

These two types of offences were considered in the context of the law of the State of Victoria in R v Rohan (a pseudonym) [2024] HCA 3.

Gageler CJ, Gordon and Edelman JJ referred to the starting point for interpreting a statutory provision: the text and its context in the widest sense, including its historical context, and its purpose [25].

Attention centred on s 323(1)(c) of the Crimes Act, (see [13]) and also s 323(3)(b) (see [14]), and it was noted that liability in this case depends on agreement [29]. The state of mind required of the people who agree to commit an offence is the state of mind required for commission of the agreed offence [31].

Here, knowledge of the ages of the people who received the cannabis, and knowledge of the age of the person who was sexually penetrated, did not need to be proved for liability [32]. It was sufficient for the prosecution to prove that the defendants entered into the agreement while intending that the cannabis be received by the specified persons, and that they intended that the specified person should be sexually penetrated [33], [34].

Gleeson and Jagot JJ concurred, referring at [62] to statutory construction assisted by reference to parliamentary material, and to the statutory context [68], [69]. The agreement to commit an offence places the parties to the agreement in the same position regarding the requirements for their liability [73], so it was only necessary that the parties agreed on the specific people in respect of whom the offences were to be committed [74].

Sovereignty and the common law

In a recent opinion piece published by Stuff, Damien Grant has raised questions about parliamentary sovereignty and the common law. This topic can invite consideration of extreme hypotheticals to test the extent to which Parliament could get away with passing evil laws. How much like Germany’s Third Reich, which existed from 1933 to 1945, could our Parliament become before action is taken to stop it? And, action by whom? Could the common law be a restraint on Parliament?

Mr Grant asks, “Does Parliament have the right to order a citizen be tortured?’

Here, “right” probably means the power to enact legislation that will be accepted as law. [1]

Acceptance is everything. Parliament only has the power to make laws because our community accepts that it should. [2] This power has its origins in a recognition in common law that this is the best way we can devise of ordering our society - and that this is a political reality.

The real consequence, if Parliament ordered that a citizen could be tortured, would be civil disorder and potentially civil war. Parliament lacks the power to make such an order because it needs to survive.

When we speak of the “lawful” powers of Parliament, we really mean the politically acceptable powers. There are many everyday limits on Parliament’s powers, because the government, having the (currently, in coalition) majority in Parliament, wants to be re-elected. It occasionally happens that the executive, exercising its party majority or coalition majority, causes Parliament to pass legislation which gives back to the executive, through ministerial orders, the power to amend what Parliament has passed. In England such provisions are called Henry VIII clauses. And another concern is the mooted use of ouster provisions, preventing an aggrieved party from seeking judicial review of an administrative action, so effectively removing the obligation of an official to obey the law. This would be contrary to the rule of law. Not all such executive limitations of Parliament’s sovereignty, or all such grants of administrative immunity, would be approved by a majority of voters.

To think that “law” is anything that Parliament could ever be imagined to enact, is to adhere to what would now be regarded as an absurd notion of sovereignty. True enough, the idea of sovereignty may originally have been thought of as a power to do anything, but society - conscious of its power at the ballot box to sweep aside its representatives - would no longer accept such omnipotence.

Are judges activists, if what they are doing is recognising the changing ideas that society accepts about how disputes should be resolved? There is nothing activist about recognising that the common law changes in response to what is currently perceived as the best way of doing things. [3]

Judges would be activist if, instead of accepting current ideas, they were to impose their own ideas in advance of social change. The real debate is about whether the judges are imposing their own ideas or whether they are responding to ideas the community recognises as the best way forward.

It is correct to say that if the judges overreach, Parliament can step in and pass appropriate legislation. In doing so, Parliament must - as a matter of political reality - not undermine “the respect and moral authority” that is the real source of its power to make laws. Parliamentary overreach is not, in reality, much different from judicial overreach. [4]

I am not persuaded by Mr Grant’s article that the judges have been reckless, or that they have undermined the respect in which they are held or the moral authority of their judgments, or that “we need better judges”.

The close interrelationship between politics and law [5] suggests the following answer to whether Parliament could authorise torture: if such a “law” passed the formal requirements for recognition as law, its status as law could only be completed by its acceptance by the courts and by the community. And whether the courts will recognise that they have the power to rule on the legal status of such a “law” depends on the extent to which they modify the common law’s requirements for the validity of laws to meet the needs of the community.

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[1] Salmond, in “Jurisprudence”, observed that source of the status of acts of Parliament as “law” is historical, not legal: “… It is the law because it is the law, and for no other reason that it is possible for the law to take notice of.” Law is only law because it is made in a way that society accepts: see John Gardner, “Law as a Leap of Faith” (for my review of this book dated 6 July 2013, click here). See also Tom Bingham, “The Rule of Law”, p166: “… it has been convincingly shown [referring to HLA Hart, “The Concept of Law”, Ch 10] that the principle of parliamentary sovereignty has been recognized as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot, by themselves, change it.” Lord Bingham concluded that the constitutional system has become unbalanced as a result of reduction of the legislative power of the Crown and of the House of Lords, and that this is a serious problem. 

[2] The first limitation of royal powers, the Magna Carta of 1215, was acceded to by King John as a politically expedient step. Further politically expedient steps occurred in the seventeenth century when Parliamentary supremacy was established by the enactment and royal acceptance of the Bill of Rights of 1688 (Julian date). The growth of democracy since then has constrained parliament’s powers, as has also, as a matter of political reality, ratification of international human rights conventions.

[3] “The common law” originally referred to what circuit judges appointed by Henry II found to be the best way of ordering affairs, drawn from the various approaches in the counties and which was subsequently consolidated in the Year Books from 1268, beginning under the reign of Edward I. The common law was thus responsive to social needs. Blackstone, writing in the eighteenth century, treated the common law as a static statement of the law from “time immemorial” and repeated the then popular opinion that the Westminster Parliament was supreme and the only source of new law. Opinions like those held by Blackstone about the common law are patently incorrect, as is clearly illustrated if one considers the judicial development of the law of contract. And as far as the supremacy of parliament over the executive and the judicial branches of government is concerned, the so-called Glorious Revolution in the seventeenth century established the supremacy of parliament over the executive, but said nothing of the relationship between parliament and the courts. Even the supremacy of parliament over the executive has, with the invention of party politics, become something of a myth. In “The Common Law” (1881), Oliver Wendell Holmes Jr observed, “The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received.”

[4] Throughout much of New Zealand’s history, the common law did not reflect the interests of the Māori peoples. See Paul Rishworth, “Writing things unwritten: Common Law in New Zealand’s Constitution” https://doi.org/10.1093/icon/mow005 . In Ellis v R [2022] NZSC 114 the Court recognised that it could not change Māori customary practices (tikanga)  but that tikanga will continue to be “recognised in the development of the common law … in cases where it is relevant.” Since the thirteenth century there is nothing novel about the surveying of cultural ideas in search of the best way forward for the law.

[5] Ronald Dworkin came to accept, in “Justice for Hedgehogs” (for my April 25, 2011 review, click here), that law is a branch of politics, and politics in turn develops from ethical standards, so there may be “valid laws” that are too immoral to enforce.

Stays of proceedings in the residual category - analyzing multiple alleged rights breaches: R v Brunelle, 2024 SCC 3

If a defendant would not have exercised a right that was breached, can a stay of proceedings be ordered arising from the breach?

Whether stays of proceedings could be available on the ground that official misconduct undermined the integrity of the justice system where a police operation involved the simultaneous arrest of several people at different locations without giving all of them proper access to legal advice, was considered in R v Brunelle, 2024 SCC 3.

Not all the defendants had been denied timely access to legal advice, and some didn’t want legal advice, but the procedure adopted by the police had become standard practice. If that practice did undermine the integrity of the justice system, could it require a stay of proceedings for some, or all, of the defendants?

O’Bonsawin J, delivering the leading judgment (Rowe J agreed but offered some clarification), noted that the Canadian law on abuse of process is well settled [27]. Here, the concern is with what is called the “residual category” of abuse of process, which is abuse that does not compromise trial fairness but which nevertheless undermines the integrity of the justice system. The novelty of the questions in this case is referred to at [30].

What are the requirements for standing? Standing means having the right to apply for the relief sought. “To have standing, the accused must allege that the abusive conduct tainted the police investigation or operation targeting them or the court proceedings against them.” [39] Of course, an allegation has to be proved, and failure to prove taint here will result in failure to show standing. Taint of the proceedings is sufficient, and personal prejudice is not required [49]. The connection between the misconduct and the taint must be a sufficient causal connection [54], as where it occurred in the course of the investigation or police operation targeting the defendant [56]. The defendant must satisfy the court that continuation of the proceedings against them individually would in itself do further harm to the integrity of the justice system [59].

Once standing is established, the issue of whether there would be an abuse of process in the residual category arising from the continuation of the proceedings can be considered [65].

In this appeal several breaches of the Canadian Charter were alleged to constitute abuse of process when considered together. The main specific breach was alleged to be of s 10(b), the right to retain and instruct counsel without delay and to be informed of that right. And the general right in s 7 to life, liberty and security of the person was also relied on by the defendants. To a lesser extent, the right in s 8 to be secure against unreasonable search or seizure was also relied on. The case law had established a way, or framework, for analyzing each, and the question was, how should these frameworks inter-relate? This is where Rowe J offers clarification: the specific right should be addressed first, and the more general right should only be addressed if no breach of the more specific one was proved [129] (cf [75], where the framework for analyzing the more general right is applied to get an overall perspective on whether abuse of process has been established).

Once an abuse of process has been established, and a stay of proceedings is sought, an important requirement is that there should be no other appropriate remedy for the abuse of process. For example, in some cases exclusion of tainted evidence might be a sufficient remedy. The need for an absence of adequate alternative remedy reflects the stay as a remedy that is only given in the clearest of cases [113]. The three requirements, set out there, are that continuation of the proceedings would prejudice either the defendant’s right to a fair trial or the integrity of the justice system, that there is no alternative remedy capable of redressing the prejudice, and that if these considerations do not answer whether a stay should be granted then the court must balance the interests in favour of granting a stay against the interest that society has in a having a final decision on the merits.

I must say I find it odd that this third consideration treats the preservation of the integrity of the justice system as a matter that can be balanced, or compromised. The question should be, what is required to preserve the integrity of the justice system - denunciation of the official misconduct or a final determination of the question of the defendant’s guilt or innocence?

Anyway, because of errors at first instance the Supreme Court ordered new hearings on the motions for stay of proceedings and for exclusion of evidence [110].

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.

A free pdf of the first collection of entries on this site

As we drift gently towards August 2024, which will be the 20th anniversary of the start of this site, and will also be its termination, I am preparing collections of these entries for free download as pdf files. This is because we cannot be sure how long sites such as this one will continue to exist once they are no longer updated.

The first file covers entries from August 2004 to August 2009. It includes a Table of Contents and Index, and also copies of the draft papers linked on this site. It is best viewed in its A4 format.

Eventually, there will be another file for the remainder of the entries, and a separate Index file for all the entries.

Here is the link to the download for the first volume.

[Update: I have revised this plan and instead of separate files everything will be combined into one pdf, replete with lots of links and best viewed on a laptop or larger screen and in a viewer that allows going back after following a link. Available in August 2024.]

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?

The admissibility consequences of a breach of rights: R v Zacharias, 2023 SCC 30

To what extent are rights a shield for offending?

Does a breach of the right not to be arbitrarily detained have admissibility consequences in relation to subsequent police activity such as search, arrest, further search, and further detention?  Is the propriety of these subsequent events tainted by the initial breach?

In R v Zacharias, 2023 SCC 30 the majority held, 4-1, that the need to consider “all the circumstances” (s 24(2) of the Charter) means that the subsequent events can be (what I call) tainted by the initial breach. However, the majority on this point split 2-2 on the application of this to the circumstances of the case under appeal. The result therefore turned on the decision of Côte J, who, although differing from her 4 colleagues on the taint question, agreed with Rowe and O’Bonsawin JJ on the application of the balancing test to determine admissibility. The appeal was accordingly dismissed, as the evidence had been correctly admitted at trial. Martin and Kasirer JJ dissented in the application of the balancing test and would have allowed the appeal.

The facts are summarised at [4]-[10]. The impropriety of official misconduct is described at [11]-[12], being in essence that the police officer only just failed to have the necessary grounds to detain (breaching s 9 of the Charter) and search (s 8), by way of sniffer dog, Mr Zacharias.

To appreciate the novelty of Zacharias in Canadian Charter jurisprudence, [1] it is useful to study the judgment of Côte J. Put starkly [102], it was the discovery of incriminating evidence that was the basis for all the police conduct after the improper detention, not the detention itself: “an arrest made on the basis of clear and reliable evidence of a crime is not “misconduct” from which the court should be concerned to dissociate itself.” She points out that in none of the Court’s jurisprudence has subsequent official conduct, not itself involving any further breach of rights, been taken into account when weighing the seriousness of the misconduct [78], [87], [97], [100].

Given the majority decision that a breach has relevance to police conduct after the discovery of incriminating evidence, the question becomes one of what is this relevance. While agreeing that the consequences of the breach are relevant to the issue of the impact of the breach on the defendant, Martin and Kasirer JJ gave this more weight in the admissibility determination because of rule of law concerns [109], [138]-[139], [143]-[151] (compare Rowe and O’Bonsawin JJ [70]-[73], with whom Côte J agreed [104]).

In New Zealand the legislation leaves less (or no) room for a moral decision on this issue, and the cases apply an attenuation analysis. [2]

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[1] I have previously referred here to some of the cases cited in Zacharias: Tim on 22 April 2022, Grant on 18 July 2009 and 19 July 2009 and  27 October 2011, and see also 11 November 2020, McColman 25 March 2023, Chehil and MacKenzie both on 3 October 2013, Stairs 13 April 2022, Kang-Brown on 28 April 2008, and A.M. also on 28 April 2008 .

[2] Evidence Act 2006, s 30, in which the references to consequence in subsection (5) and the use of the verb obtained are taken to invoke a causal analysis, although there are occasions where a more contextual analysis is used. Generally, see R v Shaheed [2002] 2 NZLR 377 at [10], [11], [180], [205], R v Pou [2002] 3 NZLR 637, R v Williams [2007] NZCA 52 at [79]-[103], [243], R v Rangihuna [2008] NZCA 230, R v Hsu [2008] NZCA 468, R v Rimine [2010] NZCA 462, Nicol v R [2017] NZCA 140, R v Bailey [2017] NZCA 211, R v Alsford [2017] NZSC 42 , Moore v R [2017] NZCA 577.