Morality and causal attribution: R v Lozada, 2024 SCC 18

Whether a potential causal link between the defendant’s act and the harm proscribed by an offence was displaced by an act of another person can be a difficult factual issue. It can also be thought of as a moral issue, and it was so described by the trial judge whose instruction to the jury was the subject of appeal in R v Lozada, 2024 SCC 18, [12], [40].

As this case illustrates, there are various ways in which the morality of attribution of this liability may be addressed.

The act of the “other person” may be called an intervening act, although to some people this might seem question-begging or conculsory. It seems that here, intervening means subsequent to the defendant’s act and before the occurrence of the proscribed harm. With that sorted out, it is possible to describe the subsequent act as intervening without presupposing that the necessary causal link has been broken.

Here there was an ugly fight between two groups, during which the victim was fatally stabbed by the “other person” who was convicted of murder. The two appellants had been charged with and convicted of manslaughter as principal parties, the Crown conceding that there was no evidence that they knew or expected that anyone in their group would use a weapon.

The fight can be called “ugly”, based on the majority’s description at [23]. In that context, was there a causal link between the defendants’ assaults and the victim’s death?

The fundamental legal issue is whether, for each defendant, their conduct was “a significant contributing cause” of the victim’s death. [20] In Canadian jurisprudence, one of the subsidiary questions here is whether the so-called intervening act was reasonably (objectively) foreseeable. [22] It need not have been precisely foreseeable for there still to be a causal connection between the defendants’ acts and the death, as the inquiry is about the general nature of the intervening act rather than its specific kind. [24] The focus is on the contribution of each defendant to the victim’s death, and whether it was a significant cause of that death.

Causation is case-specific and fact-driven [23]. In group assaults, in the absence of an intervening act, the actions of all assailants can contribute significantly to all injuries sustained [28]. There is no single test or measure for determining whether a particular act has broken the chain of causation [29].

It would have been wrong for a juror to have seized on one of the considerations relevant to causation and ignored the others [22]. In determining whether a specific intervening act (here, the stabbing) was in its general nature reasonably foreseeable, the jury could ask itself whether the stabbing “naturally flowed” from each defendant’s conduct, whether the stabbing was “extraordinary and highly unusual”, whether it was “directly related” to each defendant’s unlawful act, and whether the stabbing was so overwhelming as to make the acts of each defendant “merely part of the background or setting” of the death, [20] whether the conduct of each defendant rendered the victim more vulnerable to the stabbing, and whether a defendant’s acts prevented assistance being given to defending the victim. [21]

The dissenting justices, Rowe and Jamal JJ, considered that the trial judge’s instructions to the jury had left open the incorrect conclusion that because the continuation of the assaults on the victim and the resulting risk of non-trivial bodily harm to him was reasonably foreseeable the stabbing did not break the chain of causation between the defendants’ acts and the death. [37] The rendering of the victim more vulnerable did not address the question of the foreseeability of an assault which had the general nature of a stabbing [39], and the judge’s answer to the jury’s request for a definition of a break in the chain of causation did not correct the error [40]. The judge needed to address the foreseeability of an assault which had the general nature of a stabbing, and to leave to the jury whether its general nature was a continuation of the defendants’ assaults on the victim. [42]

Special significance may be attached to a judge’s answer to a question from the jury, and appellate judges may differ on whether, when read as a whole, the jury had received a correct direction on the law. [45] 

Here, the Supreme Court of Canada split 3-2 (the majority being Karakatsanis, Martin and Moreau JJ), which makes this appeal one of those which could leave us with the uneasy feeling that, after all the appeals are over, a case may not have been conducted according to law. How can we really know?

Rebutting an unforeseeable defence: Obian v The King [2024] HCA 18

Sometimes the prosecution can rebut evidence given by a defendant by obtaining the judge’s permission to call further evidence. The prosecutor may not have anticipated the defendant’s evidence.

Both the common law and statute may be relevant. An issue could arise as to whether the common law on the topic has been replaced by the statute to the extent of its terms, and also as to what is the extent of the statutory terms.

In Obian v The King [2024] HCA 18 the central statutory provisions were s 233(1) and (3) of the Criminal Procedure Act 2009 (Vic), set out at [10] and [11] of the Court’s unanimous judgment. Subsection (3) preserves the common law, and subsection (2) gives a separate power to permit further evidence in relation to specified Victorian criminal procedures [12]. And these specified procedures, two in number and linked by the conjunction “and”, are not exhaustive [13] so they do not replace the common law power [15]. As with the common law power, the statutory power is exercisable having regard to all the circumstances as they exist at the time the prosecutor makes the application to adduce further evidence [16].

The essential issue is whether the defendant has given evidence which the prosecutor could not reasonably have foreseen [15].

Broadly, in this case the defendant claimed to have not been involved in drug dealing, and that all he did was deliver a vehicle to a person who had not given evidence and who was not suspected of being involved in the dealing. The prosecution applied to adduce video surveillance proof that the defendant had not delivered the vehicle to that person. Should the prosecutor have anticipated that the defendant would give the explanation that he gave for the first time in court?

This was a vigorously contested point, the transcript of the argument was 70 pages [24], and although there were some innocent misstatements by counsel of the facts these did not turn out to be relevant [34].

The defendant’s explanation was not reasonably foreseeable as there were several possible exculpatory explanations that could have been given [35]-[39]. The Court agreed with the assessment by Macaulay JA in the Court of Appeal, that the defendant had, in pre-trial communications, “left an ambiguous and Delphic breadcrumb trail as to what his real defence was”. The trial judge had correctly ruled that the prosecutor could call the rebuttal evidence.

The scope of extended secondary liability: Burke v R [2024] NZSC 37

Let’s have a look at s 66(2) of the Crimes Act 1961 [NZ].

66 Parties to offences

(1) Every one is a party to and guilty of an offence who—

(a) actually commits the offence; or

(b) does or omits an act for the purpose of aiding any person to  commit the offence; or

(c) abets any person in the commission of the offence; or

(d) incites, counsels, or procures any person to commit the offence.

(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

In particular, focus on subsection (2), and, limiting our attention to the two-person minimum, call these two persons A and B. Person A is the one who commits an offence which B knows is a probable consequence of their acting in furtherance of their common purpose. This subsection makes B a party to that same offence. It is not necessary that B assisted in the commission of that offence or that B did anything else that would attract liability under subsection (1).

Extension of criminal liability for an offence that B has not committed or participated in is plainly a serious matter. So, what policy is at play here?

What B does is known by B to probably result in greater harm because of what A does, than the harm directly caused by B’s own acts. And it does result in that greater harm. Is this greater harm caused by B, or by A? And either way, is this a direct or an indirect result of B’s participation in the pursuit of the common purpose? The policy seems to be the discouragement of foreseeable harm.

Complex arguments in law are likely to be wrong. And, while the facts of criminal cases are usually simple, application of the law to them can be very difficult indeed.

In Burke v R [2024] NZSC 37 a year passed between the hearing of submissions and the delivery of the judgments, and the Court could not reach unanimity on its reasons for allowing B’s appeal. Person A murdered V and the issue was whether s 66(2) made B (the appellant) liable for manslaughter. The unlawful common purpose was to give V a serious beating. It was not proved that B knew that A had a weapon, a knife. A used the knife to murder V in the course of administering the serious beating. Manslaughter is, broadly, a culpable homicide that does not amount to murder: see s 160 of the Crimes Act 1961.

Did B have to know that the killing of V was a probable consequence of the serious beating? The majority (O’Regan, Williams and Kós JJ) held, no: [146], 170], [172]. It would have been sufficient for liability if B knew that A would probably use a weapon such as a knife: [45], [142], and he was not proven to have had that knowledge here.

The Court was unanimous in allowing B’s appeal. But Winkelmann CJ and, separately, Glazebrook J, differed from the majority’s reasoning. They both held that B would have had to have foreseen V’s death [180], [248], because to require something less would be to put a gloss on the statutory language. That is, it would be to read in a requirement of a foresight of harm that is more than trivial. The essence of subsection (2) is foresight of consequences, so it is logical to require foresight of death [225]-[229]; [291], [300], [304], [314]. But, the difficulty with this argument is that doing an unlawful act (here, assaulting V) knowing that death is a likely consequence, is murder: s 167(d) of the Crimes Act 1961, not manslaughter.

On whether the phrase “probable consequence” needs elaboration, only the Chief Justice dissented. The (new) majority held that no elaboration is needed beyond saying that it is a substantial or real risk, something that could well happen, and it could also be helpful to point out that probable is not the same as possible. [87]-[88]; [251]. The Chief Justice thought that the elaboration went too far beyond the statutory words and it would be unhelpful [235]-[236], but that if juries ask for assistance it could, in partial agreement with the other members of the Court, be helpful to contrast probable with “merely possible” [238].

There was agreement on the desirability of the alleged common purpose, which was for the prosecutor to define, to be aligned to the offence that was ultimately committed: [78]; [243]. This is because a close fit will make it easier to determine whether the offence was a probable consequence of the common purpose.

If we remember that in this case A pleaded guilty to the murder of V, see [21], and if we refer to s 66(2), it seems plain that this subsection could only make B a party to murder: “… is a party to every offence committed…”. Manslaughter should not be an option under this subsection in these circumstances. Yet this case has proceeded on the basis that the jury found B guilty of manslaughter under subsection (2).

It must have been wrong for the trial judge to sentence B on the basis that the jury had found him guilty under s 66(2). [25] The Crown case was that B committed murder, and the prosecutor did not mention manslaughter. [27] Defence counsel mentioned manslaughter while nevertheless arguing for a verdict of not guilty on murder and manslaughter. It is not stated under what provision defence counsel mentioned manslaughter, but it can only, it seems, have been subsection (1)(a). Here the theory would be that the unlawful act causing V’s death was B’s participation in a non-trivial assault on V. But the jury were not given this direction. [30]

The majority judgment appears to put this difficulty aside when it says that under subsection (2), “the issue becomes whether Mr Burke knew that a probable consequence of the prosecution of the common purpose was the commission of a culpable homicide different in nature from that actually committed by Mr Webber.” [34] However, under subsection (2) the possibility of B’s conviction for a different offence than that committed by A is excluded. The assumption upon which this appeal proceeded – that the conviction for manslaughter was under subsection (2), [37] – was false.

The Chief Justice, describing the state of the authorities as “unsatisfactory” [218], suggests that the offences were both culpable homicide [219]. The difficulty here is that culpable homicide is not itself an offence because no punishment is provided for it; it is a generic term, applicable to homicides that are not the result of blameless accident or self-defence, and distinguishing murder from manslaughter. “Culpable homicide” is a sub-category of homicides, which are murder, manslaughter, and what may be termed non-insane infanticide; those are the offences.

That aside, although the summary provided by the Court at [1]-[11] mentions the need to apply the judgment of the majority in future cases, it is difficult to resist the logic of the dissenting judges where they would require B to have foreseen death, and the observation by the Chief Justice that the answer may lie with the legislature [229]. The dissents do diminish the authoritative strength of this case (where they differ from the majority – there are significant areas of agreement).

Here, if at trial the Crown had wanted a verdict of manslaughter it would have included that specific charge, specifying that B’s liability was under s 66(1)(a). Perhaps the trial judge had been attempting to avoid the sense of injustice that could have followed a simple acquittal of murder. [1]

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[1] Update: The Crown and the appellant agreed that a conviction for a lesser offence should be substituted for the manslaughter conviction. This liability was plainly (although not stated) under s 66(1): Burke v R [2024] NZSC 59. 

Tendency evidence – proof and cross-proof: DPP v Roder (A Pseudonym) [2024] HCA 15

When a trial involves multiple charges against one defendant, and they are of a similar nature, an issue may arise over when evidence relating to one or more of those charges can be used as contributing to proof of one or more other of the charges.

If evidence about one offence is relevant to proof of another charge, that can be because it shows that the defendant has a propensity or a tendency to act in the way charged.

I use the synonym [23] propensity out of habit: I have a tendency to say propensity when I could equally say tendency.

Do the facts that allegedly show a propensity have to be proved beyond reasonable doubt before they can be used towards proof of another charge?

Further, what is the correct way to use propensity evidence in reasoning towards a verdict on a charge in respect of which the propensity evidence is admissible? Do charges have to be worked through sequentially and then re-worked as verdicts are reached and propensity evidence is accumulated?

In DPP v Roder (A Pseudonym) [2024] HCA 15 a bench of 7 justices delivered a unanimous judgment addressing issues that I have summarized in these questions, except here there was agreement between counsel on the cross-admissibility of the propensity evidence (the issue mentioned in my first paragraph, above). [6] The context is evidence legislation in the State of Victoria, but this judgment also has wider relevance.

Of interest to criminal procedure buffs and law reformers is the interlocutory nature of this appeal: the trial judge had issued a ruling about how the jury would be directed about the use of propensity evidence, and this ruling was the subject of the appeals. Plainly, this is a sensible method of preventing errors that could require orders for retrials.

What was decided here? No standard of proof applies to the issue of whether the evidence shows that the defendant has a propensity to act in the way charged. [31] There is one exception to this: where the existence of the propensity is an essential link in a chain of proof leading to the verdict. In such a case, the propensity would have to be proved beyond reasonable doubt unless legislation provides to the contrary. [24]

Here, the legislation does provide to the contrary, so the facts alleged to show a propensity never have to be proved beyond reasonable doubt. A different legislated position exists in New South Wales, as described at [29].[1]

Roder settles the question, whether a standard of proof applies to propensity evidence, that had been unclear at common law in Australia: see HML v The Queen [2008] HCA 16 (noted here on 26 April 2008) and Grooby v R [2018] NZSC 114. Now, the starting point for deciding issues concerning propensity evidence is always the relevant legislation.

But the more general relevance of this decision is on the use of propensity evidence where it arises from multiple charges. This is addressed at [26] where the Court endorsed the reasoning in JS v The Queen [2022] NSWCCA 145 at [43]:

“It is the tendency that is relied on as circumstantial evidence in proof of the charge on the indictment. The proper approach is to have regard to all the evidence … relied on in proof of the tendency as evidence of the tendency alleged. To the extent that the jury is satisfied of the existence of the tendency, the tendency may be relied on in proof of the charge. …”(emphasis added by the HCA)

Points made here are mentioned at [27] and [28]. These are the demonstration of the lack of circularity and the confining of the use of the standard of proof to the verdict.

So, from the summary at [37], if the fact-finder is satisfied on the basis of all the evidence of the relevant propensity (gleaned from the evidence admissible on each charge) that the propensity exists then it can be used in deciding whether the likelihood is increased that the defendant committed the offence the fact-finder is considering. The complexity arising from a gradual emergence of propensity evidence as charges are worked through sequentially is thus avoided.

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[1] If, like me, you came to law after a degree in science, you will, at least at first impression, be horrified that standards of proof are not more widely used and are not specified precisely in terms of probabilities. After all, and on reflection, a trial at law is all about conditional probabilities and the comparison of two hypotheses. That is, given this item of evidence what is the probability of each hypothesis (guilt or innocence), and given all these items of evidence, what is the overall probability of each? And when are the probabilities sufficient to support a verdict of guilty? When is the probability of something high enough for me to be satisfied of it? Being satisfied of something in law usually means having decided to accept the existence of that thing. And usually, for example in relation to items of evidence as opposed to the ultimate verdict, acceptance means acceptance on the balance of probabilities. But courts can differ over whether the balance of probabilities is a fixed standard or whether it changes according to the seriousness of the consequences of being satisfied of the existence of the thing.

Conspiracy and the scope of the agreement: DPP(Cth) v Kola [2024] HCA 14

Identifying the scope of an agreement is essential when considering the law of conspiracy. This is illustrated in DPP(Cth) v Kola [2024] HCA 14. The statutory context is important, particularly if it provides that where an offence has an element of absolute liability the conspiracy to commit that offence retains absolute liability as to that circumstance. [1]

In Kola the charge was conspiracy to import a commercial quantity of cocaine. For the full offence, importation of a commercial quantity of cocaine, absolute liability applied to the amount of the drug. That is, it was not necessary to prove that the defendant knew of the amount of drug that was imported. One of the issues in this appeal was whether liability for the corresponding conspiracy required an intention to import that quantity of the drug.

Consistently with R v LK, [2] the Court held that under the relevant legislation proof of the agreement to commit the offence did not include proof that the parties to the agreement intended to import a commercial quantity of cocaine. [25]

The illustration given at [29] is helpful in that it shows the importance of identifying the scope of what was agreed. The facts might be such that by using the agreed method of importation it would not be possible to import a commercial quantity of the drug. Further, if the agreed method of importation was departed from by other co-conspirators so that a commercial quantity of the drug could be imported, the defendant would not then be a party to the new agreement to import a commercial quantity of the drug. But if the defendant had agreed to a method of importation that allowed for a commercial quantity of cocaine to be imported, the defendant would be liable for the conspiracy to import a commercial quantity of the drug because of the absolute liability provision.

And this is where the second aspect of this appeal comes into play. The charge was conspiracy because, as is usually the case with conspiracy charges, the full offence was not committed. [3] It was still necessary to prove the scope of the agreement. Here, from the proven facts, it was obvious that there was reasonable proof that a commercial quantity of the drug was intended to be imported [45], and consequently that evidence of the acts of co-conspirators was admissible to prove that the intended course of conduct would, had it been carried out, have resulted in the importation of a commercial quantity of the drug. Again, whether the defendant knew or intended this was irrelevant because of the absolute liability provision, but it was relevant that he knew how the importation was to occur.

A puzzling point occurs in Kola at [25]:

“… to establish the offence of conspiring to import a commercial quantity of a border controlled drug, the prosecution must prove, inter alia: that the accused participated in or was a party to an agreement to import a commercial quantity of a border controlled drug; that the accused intended to participate in or be a party to such an agreement; and that the accused and another person intended that a border controlled drug would be imported pursuant to the agreement, that is, they knew or believed that a border controlled drug would be imported pursuant to the agreement.” [emphasis added]

As a result of the agreement having to be to import a commercial quantity of the drug (this was the way the Court stated the first element), the Court identifies “an obvious tension” [27]. The resolution given in that paragraph is somewhat obscure, particularly as the Court approved the trial judge’s direction which had omitted reference to commercial quantity when describing the first element [39]-[40]. The real issue was whether the scope of the agreement was such that, if executed, a commercial quantity of the drug would have been imported [41]. This would be a correct way of putting the first element.

Here, there was no suggestion that the co-conspirators had gone beyond what Mr Kola had agreed to [46], and the circumstances indicating the scope of his agreement are mentioned at [13].

In considering the law of conspiracy and the relevance of this decision in other jurisdictions, differences in legislation must be assessed, as must the particular circumstances bearing on the scope of the alleged agreement.

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[1] Here the Court was considering s 11.5 and 307.1 of the Criminal Code (Cth). For s 11.5, see [20], and for a description of s 307.1 see [24].

[2] R v LK [2010] HCA 17. See my note dated 26 May 2010. LK is remarkable for its use of the word epexegetical at [133]. Don’t play Scrabble against those guys. LK holds that if an offence can be committed recklessly, a conspiracy to commit that offence requires intention or knowledge [141]. The relevant element there was the fact that money was the proceeds of crime. Another element, not relevant to that decision, was that the amount of the money was $1m or more and this was an element to which absolute liability applied: Kola at [23].

[3] Often, defendants are charged as conspirators even though the full offence has been committed, for example where supplies of a drug have occurred.

The Australian common law of duress: The King v Anna Rowan (A Pseudonym) [2024] HCA 9

Is it right in principle to require, for the defence of duress, that the threat be accompanied by a demand that a particular offence be committed?

And can the threat be implied from the circumstances, or must it be an express threat?

The Australian common law was considered in The King v Anna Rowan (A Pseudonym) [2024] HCA 9.

In a joint judgment Gageler CJ, Gordon, Jagot and Beech-Jones JJ held that Australian common law of duress does indeed require that the threat included a requirement or demand that the defendant commit the acts that constitute the offence charged [53]. Also, the threat and the demand can be unstated but implied from the circumstances [55], [57]. Here, the Court of Appeal had not made the mistake of moving away from the established common law of duress, which was the Crown’s concern, and, as there had been sufficient evidence at voir dire to raise duress as a live issue, this appeal against the Court of Appeal’s reversal of the judge’s decision was dismissed.

Edelman J concurred in the result but suggested a principled development of the Australian common law. He argued that there is no basis for a distinction between threats made by a human person and threats from other sources [84]. This is so, notwithstanding that duress and necessity are separate, and neither party here sought their unification [86]-[87]. Also, although neither party submitted that a demand directed at the commission of a particular offence was unnecessary, such a demand is not needed [98].

The requirement for a demand that a particular offence (the offence charged) be committed to avoid the threatened acts is contrary to principle [106]. Here, the point being made appears to be that if the defence of duress was only available for the demanded offence, a defendant who found a way to avoid the threatened action by committing a lesser offence would not have the defence of duress for that lesser offence. Indeed, continued Edelman J, there need not be any demand for an offence to be committed, as where the defendant drove dangerously to avoid threats of violence from a dangerous mob [107].

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].

Appellate review of grounds for prosecution: Attorney-General of Trinidad and Tobago v Harridath Maharaj [2024] UKPC 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]. The decision to prosecute is a discretionary matter subject to review on appeal. 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.

Assessing the grounds for bringing a prosecution: Attorney-General of Trinidad and Tobago v Harridath Maharaj [2024] UKPC 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 state of mind 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, and it only needed to be considered 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 judgement. [1] 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]. But on appeals concerning the exercise of a discretion an appellate court will recognise that reasonable minds may differ, so that the appeal is analysed by way of review [66]. Here, the grounds for prosecuting were sufficient and the decision to prosecute was reasonable, so the question of malice did not need to be considered by the Board (and in any event there was nothing in the record to suggest malice) [79].

This appeal illustrates how different issues are analysed in different ways on appeal. [2] Here, the logical structure put the issue that required evaluative judgement before the issue (which did not need to be considered in this appeal) of fact. 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 malice does not matter. Often, the logical structure will be the other way around: facts before judgement, as where a factual threshold has to be satisfied before a judgement is exercised.

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[1] I use the spelling judgement because that’s becoming the way we in NZ distinguish between the process and the result, but the Board’s phrase “evaluative assessment” [63] avoids this sort of refinement. Anyway, to say sufficiency and reasonableness are both treated in the same way on appeal may be inaccurate (this point did not arise in this appeal): sufficiency seems clearly to be a question of fact and a matter for evaluative judgement both at first instance and on appeal, whereas the reasonableness of a decision to prosecute may be a discretionary matter at first instance, reviewable on appeal.

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