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?

And what about the reference to morality? This was unexplored in the appeal judgments. The judge’s instruction seems to leave open the possibility that jurors might have said to themselves, “Well, we can’t agree on what the judge meant about the law, except we do remember that morality is relevant. We agree that the defendants should be found guilty, so that’s our verdict.”

My thought is that moral considerations played their part in the development of the law, but now their role is spent. We have trials according to law, not according to people’s individual moralities. However, it is impossible to prevent juries from deciding that, whatever the law may be, in the particular circumstances a conviction would be wrong. That is an important safeguard for individuals.

Unfortunately these matters of morality, which are far more interesting than the relatively straightforward law of causation, seem to have been overlooked in this case.

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.

Choice of language in court: R v Tayo Tompouba, 2024 SCC 16

One of the interesting things about R v Tayo Tompouba, 2024 SCC 16 is the discussion of the criteria for a successful appeal against conviction in Canada. Another is the difference in judicial opinion over whether this case involved an error of law or a miscarriage of justice. Either way, the consequences differ. A third interesting thing is the way Canadian trials accommodate the various languages, particularly French and English.

The powers of a Canadian appellate court hearing an appeal against conviction are set out in s 686 of the Criminal Code, quoted at [53] of the majority judgment. Of note is the separation of wrong decisions on a question of law from miscarriage of justice on any ground: s 686(1)(a)(ii) and (iii).

If an appeal is advanced on the ground that there had been an error of law, and if the appellate court finds that there had been such an error, then the appellant will succeed unless the respondent can persuade the court on the balance of probabilities that the error was not substantial or that no miscarriage of justice had occurred: s 686(1)(b)(iii).

If, on the other hand, an appeal is advanced on the ground that there had been a miscarriage of justice, the appellant has the burden of convincing the appeal court that there was such a miscarriage and also that it was a miscarriage that prejudiced the appellant: s 686(b)(iv). This sort of prejudice would be the error that had an adverse effect on the outcome of the proceedings.

It is interesting (for the very few people who take an interest in such things) to compare this arrangement with the way conviction appeals are analysed in other jurisdictions. For example, here [1] our governing provision is s 232 of the Criminal Procedure Act 2011. Relevantly, we put errors of law implicitly under the rubric of miscarriages of justice, defined in s 232(4). And errors are not miscarriages of justice unless they have a consequence specified in s 232(4)(a) or (b). It is, as a matter of interpretation of the legislation, for the appellant to satisfy the court that any such consequence occurred.

So in Canada the appellant in this appeal was in a slightly better position if the error he complained of was an error of law. Here the judges differed, with Karakatsanis and Martin JJ jointly dissenting by regarding the appeal as being about a miscarriage of justice and not about an error of law.

The error, however it would be classified, was a failure at an early stage of the proceedings to draw Mr Tayo Tompouba’s attention to his right to choose which language, English or French, to have his trial conducted in. This, the third of the interesting things I mentioned at the outset, is remarkable for the extent to which Canadian trial law accommodates the two official languages [36], [38]-[42].

In New Zealand, by contrast, while Te Reo Māori is recognised in law as an official language by the Māori Language Act 2016, which is also named Te Ture mō Te Reo Māori 2016, in legal proceedings it only gives the right to speak Māori: s 7. English language does not have legal status but it is the language spoken by most people in New Zealand and may be described as the de facto official language.

Getting down to the nitty gritty, as we say in English, how did the difference in whether the error in this appeal was an error of law arise? The majority, in a judgment delivered by Wagner CJ, held that because there was a statutory duty to give an accused person information about the right to choose a language, the error was one of law [84]. It was a failure to apply a legal rule.

The minority took the view that the case law limited errors of law to errors by the trial judge, not errors that occurred, as here, at an earlier stage of the proceedings [134]. Errors of law undermine the correctness of the court’s judgment. This meant that in the minority’s opinion the error was a miscarriage of justice rather than an error of law, and so the appellant had to show that it had some effect on the exercise of his right to choose a language and he needed to produce evidence, such as an affidavit, that he was unaware of the right [135]-[136].

This suggests an interesting [2] subject for discussion: would it be preferable in legislation to avoid distinguishing errors of law from miscarriages of justice, and to require an appellant to always have the burden of satisfying the appellate court that the irregularity resulted in an adverse outcome at trial?

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[1] By “here” I mean in New Zealand, not in the country where I happen to be writing this.

[2] I insist that it is interesting.

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.

Dealing with jury misconduct: Campbell v R (No 2) (Jamaica) [2024] UKPC 6

Dealing with the risk that a jury was “poisoned” (so to speak) [1]) by misbehaviour was the topic considered in Campbell v R (No 2) (Jamaica) [2024] UKPC 6.

The difficulty for the trial judge in this case was that at the closing stage of a lengthy and complex (and necessarily expensive) trial a concern was raised that attempts had been made by one juror to bribe others – the number was not clear – to acquit the defendants. Could this risk be avoided by judicial management?

The Board held that the measures taken here had not been sufficient [44]-[45]. The defendants’ fundamental right to a fair trial by an independent and impartial court had been infringed. The judge’s duty was 

“to ensure a fair trial. In order to maintain public confidence in the administration of justice it is necessary to do justice to both prosecution and defence so that the guilty may be convicted and the innocent acquitted.” [47]

So the party that may have been prejudiced (the prosecution) could not waive the misconduct.

The judge should have considered whether there was “a real risk” that jurors may have been consciously or unconsciously prejudiced for or against one or more of the defendants [48]-[53].

Here the verdicts were returned by a jury that was not a fair and impartial tribunal of fact, so there was no room for application of the proviso. [55]

It was for the local courts to decide whether a retrial should be ordered [63]-[64].

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[1] Borrowing at [48]-[51] the language of Bingham LJ in R v Putnam (1991) 93 Cr App R 281, 286-287.

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].

Common sense in assessments of the credibility and reliability of witnesses in judge-alone trials: R v Kruk, 2024 SCC 7

In judge-alone trials, the judge must give reasons for the verdict. This obligation creates difficulties for the judge, especially around adequately explaining reasons for assessments of the credibility and reliability of witnesses. There can be a tendency for judges to refer to their common sense and their experience of the ways of the world. This might lead to a departure from the evidence in the case. How should an appellate court determine whether the judge has reasoned lawfully?

This was the central question in R v Kruk, 2024 SCC 7.

The Court unanimously rejected a rule-based approach called “the rule against ungrounded common-sense assumptions” [1].

There were numerous reasons for that rejection, but of more general interest is the articulation(s) of the correct appellate approach to judicial assumptions not supported (or controverted) by evidence.

Two judgments were delivered, with Rowe J agreeing in the results of these appeals (in two unrelated cases) but setting out the analysis he prefers. How different is this from that of the other judges – Wagner CJ, Coté, Martin, Kasirer Jamal and O’Bonsawin JJ – in their joint judgment?

The joint judgment sets out “the existing and well-established law on assessing a trial judge’s credibility or reliability assessments” at [93]-[99]. As their summary is given “for the utmost clarity” [93], it seems pointless to summarize their summary.

But in asking whether Rowe J’s approach is different, comparison of [93]-[99] with [129]-[132] is necessary. He describes the issue in these terms: “These two appeals ask how appellate courts should review trial judges’ reliance on generalized expectations based on common sense and human experience in the fact-finding process” [128]. Broadly, appellate courts need to be sure that what the judge relied on was indeed a generalized expectation and not an assessment of evidence in the case ([130] – this is what the joint judgment says at [94]), then, if reliance had been placed on a generalized expectation, ask whether that expectation was reasonable ([131] – here the joint judgment at [95] diverts to address unreasonable assumptions and to consider how these should be reviewed on appeal [96]-[97]), and if it was reasonable, ask whether it was used to replace evidence instead of being a benchmark for assessing the evidence ([132] and here the joint judgment follows an identification of error by asking whether it was “palpable” in the sense that it affected the result or went to the very core of the outcome of the case [98]).

One kind of error is an error of law, and the standard for review is simply whether the judge got the law right [96]. Examples of this open-ended category are given at [96]. If the error was not one of law, the standard for review is whether the error was palpable and overriding, and examples are given at [97].

A case that was overruled in Kruk provides a quite amusing (at least, I think so) illustration of how absurd it is to require generalizations that are advanced to support credibility and reliability findings to be grounded in evidence: R v JC, 2018 ONSC 5547. See Kruk per Rowe J at [211]-[213], and the joint judgment at [21]-[23]. Absurd, because “The Crown cannot be expected to elicit evidence on how sexual encounters ordinarily unfold in every sexual assault trial before a trial judge can rely on their common sense or human experience with respect to human sexual behaviour” [211].

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.