Thabo Meli Revisited: The Pernicious Effects of Result-Driven Decisions
| Date | 01 February 2013 |
| Published date | 01 February 2013 |
| DOI | 10.1350/jcla.2013.77.1.817 |
| Author | Kenneth J. Arenson |
| Subject Matter | Article |
Thabo Meli Revisited:
The Pernicious Effects of
Result-driven Decisions
Kenneth J. Arenson*
Abstract Despite the hackneyed expression that ‘judges should interpret
the law and not make it’, the fact remains that there is some scope within
the separation of powers doctrine for the courts to develop the common
law incrementally. To this extent, the courts can effectively legislate, but
only to this limited extent if they are to respect the separation of powers
doctrine. On occasion, however, the courts have usurped the power
entrusted to Parliament, and particularly so in instances where a strict
application of the existing law would lead to results that offend their
personal notions of what is fair and just. When this occurs, the natural
consequence is that lawyers, academics and the public in general lose
respect for both the judges involved as well as the adversarial system of
criminal justice. In order to illustrate this point, attention will focus on the
case of Thabo Meli v United Kingdom in which the Privy Council, mistakenly
believing that it could not reach its desired outcome through a strict
application of the common law rule of temporal coincidence, emasculated
the rule beyond recognition in order to convict the accused. Moreover, the
discussion to follow will demonstrate that not only was the court wrong in
its belief that the case involved the doctrine of temporal coincidence, but
the same result would have been achieved had the Council correctly
identified the issue as one of legal causation and correctly applied the
principles relating thereto.
Keywords Causation; Temporal coincidence; Separation of powers
The doctrine of separation of powers1is as old as it is important. The
general responsibilities of the executive, legislative and judicial branches
of government are so well known that any court would probably be
derelict in refusing to take judicial notice 2of them. Suffice it to say that
the legislative branch bears overriding responsibility for enacting laws
by way of legislation, although it is undeniably true that in common law
jurisdictions, the power of the legislative branch to enact legislation is
* Associate Professor, Deakin University School of Law; e-mail: ken.arenson@
deakin.edu.au.
1 For an explanation of the separation of powers principle, see generally J. E. Novak
and R. D. Rotunda, Constitutional Law, 4th edn (West: New York, 1991) 126–8.
2Holland v Jones (1917) 23 CLR 149 at 153; Bridlington Relay Ltd v Yorkshire Electricity
Board [1965] 1 All ER 978; Evidence Act 2008 (Vic), s. 144 and equivalent Uniform
Evidence Act in the remaining Australian jurisdictions. These cases represent
instances in which the appropriate standard for taking judicial notice of a fact is
when it is so well known or notorious that every reasonable person is presumed to
be aware of it. In what are termed as code jurisdictions in Australia such as the
Northern Territory, ACT, Western Australia, Queensland and Tasmania, all law
exists is in statutory form: K. J. Arenson, M. Bagaric and P. Gillies, Australian
Criminal Law in the Common Law Jurisdictions: Cases and Materials, 3rd edn (Oxford
University Press: Oxford, 2011) 17–19 (hereafter Australian Criminal Law in the
Common Law Jurisdictions).
41The Journal of Criminal Law (2013) 77 JCL 41–55
doi:10.1350/jcla.2013.77.1.817
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