Reflections on "Mr. A"

Michael Williams

Issue 380, vol.95, Winter 2006

As a general principle, understandably, the “finality of proceedings…is of fundamental importance to the administration of the law, and should not lightly be set aside”. The courts, however, are authorised to validate void actions (taken, e.g., under a pre-1937 statute declared to be unconstitutional) which effectively cannot be undone – for instance, elections held under a technically invalid electoral system.(And otherwise where a statute has been declared to be unconstitutional, only in very exceptional circumstances should verdicts reached under that statute be not allowed to stand – for example, if they involved an unfairness amounting to a fundamental denial of justice).

“…Chief Justice Murray, in his Supreme Court judgment in the case of Mr. A., is at pains to point out that Mr. A. did not suffer unfairness to this degree (and that his crime, other things being equal, might normally attract the sanction it did). But what is surprising is the judge’s referring to the State in this instance as having relied “in good faith on a statute in force at the time”.

In fact, the Supreme Court itself had (in May 2006) set aside the said statute (the 1935 Criminal Law Amendment Act, Section 1 (1)) : Lawyers for a teenager accused of having sex with a 14-year-old girl, submitted that, because she had given him her age as 16, he had made an honest error – and claimed that the Act, by not allowing for such a defence, prevented a citizen getting a fair trial (a situation argued to be inconsistent with the Constitution). It was a few days later that Mr. A. started proceedings to be released from prison – on the grounds that he had been convicted (for the violation of a 12-year-old girl) under an Act which was henceforward to be considered as never having had the force of law since 1937. The High Court allowed his plea. The State appealed to the Supreme Court – which, a week later, returned Mr. A. to prison.

It could be said, in short, that the Supreme Court decided to prolong the lifetime of a law that it had previously struck down as being unjust (and which, by so doing, it had repealed).

A judgment of the Supreme Court becomes a precedent that binds all other courts in future trials. So, in effect, the law has now been altered to demand that any citizen convicted under an unconstitutional statute must serve out his sentence.

This is a judgment of the Supreme Court in a case that had huge potential to embarrass the government of the day, that came down on the government side at the expense of citizens’ rights, changed the law to do so, and is supported by arguments that do not stand up to analysis.

Michael Williams worked as a solicitor for thirty years, as a mediator for fourteen years and is now semi-retired.