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Upon General Grounds of Justice A Charge Against Him Is Warranted.'

This document discusses two tests for determining whether a prosecutor had reasonable and probable cause to bring charges against an accused person. The first test, from Jordan CJ, required the prosecutor to positively believe in the guilt of the accused. The second, from Dixon J, imposed a lower threshold that a charge is warranted based on general grounds of justice, without requiring belief in guilt. The High Court majority found the tests were not "radically different" and should be read complementarily, not as opposing formulations.

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Anshul Yadav
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25 views1 page

Upon General Grounds of Justice A Charge Against Him Is Warranted.'

This document discusses two tests for determining whether a prosecutor had reasonable and probable cause to bring charges against an accused person. The first test, from Jordan CJ, required the prosecutor to positively believe in the guilt of the accused. The second, from Dixon J, imposed a lower threshold that a charge is warranted based on general grounds of justice, without requiring belief in guilt. The High Court majority found the tests were not "radically different" and should be read complementarily, not as opposing formulations.

Uploaded by

Anshul Yadav
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd

362

SYDNEY LAW REVIEW

[VOL 30: 357

upon general grounds of justice a charge against him is warranted.18 [Emphasis


added.] This test, unlike that of Jordan CJs, does not impute a need for a positive
belief in the guilt of the accused. Rather, the test places a lower threshold on
prosecutors in setting proceedings in train, thus possibly avoiding unwarranted
timorousness or excessive zealousness on the part of a prosecutor in deciding
whether to lay a charge.19 Notably, Dixon J reaffirmed his formulation of the
relevant test in Brain,20 repeating his statement of the principles in Sharp v Biggs.
It has been observed that the resolution of the issues by Evatt, Starke and
McTiernan JJ in Brain indicated their Honours acceptance of Dixon Js
formulation.21 Dixon Js failure, however, to acknowledge explicitly that his
formulation of the test in determining a prosecutors absence of reasonable and
probable cause was a departure from what had long been accepted as authority
that the prosecutor was required to believe in the guilt of the accused have,
perhaps, plagued the decisions of the court that have followed these judgments,
including the High Courts analysis in A v New South Wales.
Where the judgment of Beazley JA clearly distinguishes the underlying
requirements of the two tests proffered by Jordan CJ and Dixon J, upon a close
reflection of the approach adopted by jurists on this question since both decisions,
it appears that a view has commonly emerged that a belief in the charge and belief
in the guilt of the accused are interchangeable22 a view that Ipp JA has
suggested is surely incorrect.23

6.

Proceedings Before the High Court

A.

Absence of Reasonable and Probable Cause Resolving Conflicting


Authorities

The concept of reasonable and probable cause, the most onerous of the elements
for a plaintiff to establish, essentially requires the court to consider two questions;
one subjective (what the prosecutor actually believed) and the other objective (the
reasonableness of that belief). While much was made of the differences between
the applicable tests stated by Jordan CJ and Dixon J in the Court of Appeal
judgment, the High Court majority did not favour a similar construction of the
tests, suggesting a complementary approach to the formulations. In particular, the
majority were of the view that it would be wrong to make too much of the
differences in expression, further suggesting that the formulations should not be
read as propounding radically different tests.24 Rather, according to the majority,
the better view is that the:

18
19
20
21
22
23
24

Sharp v Biggs (1932) 48 CLR 81 at 106 (Dixon J).


A v State of New South Wales [2005] NSWCA 292 at 109 (Beazley JA).
Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343.
A v State of New South Wales [2005] NSWCA 292 at 74 (Beazley JA).
Id at 85 (Beazley JA).
Ipp, above n15 at 237.
A v New South Wales (2007) 233 ALR 584 at 604 (Gleeson CJ, Gummow, Kirby, Heydon &
Crennan JJ).

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