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Thabo Meli revisited : the pernicious effects of results-driven decisions

Arenson, Kenneth J. 2013, Thabo Meli revisited : the pernicious effects of results-driven decisions, Journal of criminal law, vol. 77, no. 1, pp. 41-55, doi: 10.1350/jcla.2013.77.1.817.

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Title Thabo Meli revisited : the pernicious effects of results-driven decisions
Author(s) Arenson, Kenneth J.
Journal name Journal of criminal law
Volume number 77
Issue number 1
Start page 41
End page 55
Total pages 15
Publisher Vathek Publishing
Place of publication Isle of Man, England
Publication date 2013-02
ISSN 0022-0183
1740-5580
Keyword(s) causation
temporal coincidence
separation of powers
Summary 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.
Language eng
DOI 10.1350/jcla.2013.77.1.817
Field of Research 180110 Criminal Law and Procedure
Socio Economic Objective 940499 Justice and the Law not elsewhere classified
HERDC Research category C1 Refereed article in a scholarly journal
ERA Research output type C Journal article
Copyright notice ©2013, Vathek Publishing
Persistent URL http://hdl.handle.net/10536/DRO/DU:30052270

Document type: Journal Article
Collections: Law
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Every reasonable effort has been made to ensure that permission has been obtained for items included in DRO. If you believe that your rights have been infringed by this repository, please contact drosupport@deakin.edu.au.