Monday, January 31, 2005

Defence "mode of evidence"

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Equality of arms in a defended case may require special measures concerning the mode in which the accused may give his evidence. Such measur...

Fairness and the issues

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In some situations, tribunals may be given powers to make orders affecting the rights of parties without the need for an oral hearing. In ap...
Sunday, January 23, 2005

Precedent and particularity in rights balancing

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There is a conflict in New Zealand law between two approaches to balancing of interests when a court decides the admissibility of wrongfully...
Friday, December 17, 2004

Restraining executive power

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Judicial activism is irksome to legislators. In A and others v Secretary of State for the Home Department [2004] UKHL 56 (16 December 2004)...

The Supreme Court and the fundamentals

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As predicted in these blogs on 25 August 2004 , the Supreme Court of New Zealand has upheld, in Siloata v R 16/12/04, SC CRI 8/2004, the pr...
Tuesday, November 30, 2004

The Joy of Jurisprudence

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Yes, jurisprudence can be useful. Consider the problem mentioned in these blogs on Wednesday November 17, 2004 of whether a person who inten...
Monday, November 29, 2004

Public policy exclusion of evidence

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The relationship between the common law discretion to exclude evidence on fairness grounds, to the discretion to exclude evidence for breach...
Thursday, November 25, 2004

An individual's access to the courts

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Can a person who is detained by officials apply to a court for bail even when there is no prosecution or action brought against him? The Sup...
Wednesday, November 17, 2004

Is returning a drug to its owner "supply"?

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The tricky problem of whether a person who has been given only temporary custody of a drug has a purpose of supply when he returns that drug...
Monday, November 15, 2004

Miscarriage of justice and strength of the prosecution case

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Miscarriages of justice may be thought of as having two roles to play in criminal procedure. The first is as a ground of appeal. The second ...
Monday, November 08, 2004

Forcing the accused to have counsel

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Mr Milosevic has to accept counsel at his trial. This decision was upheld by the Appeals Chamber of the International Criminal Tribunal f...
Tuesday, November 02, 2004

Is infrared surveillance "search"?

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Infrared surveillance may reveal patterns of heat emerging from a building. That in turn, when added to other information, may provide reaso...
Monday, November 01, 2004

Third party challenges to trial publicity

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When may a third party obtain suppression of publication of the name of an accused? In Re S (a child) [2004] UKHL 47 (28 October 2004) the ...
Tuesday, October 26, 2004

Sex and time

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A hundred years on, R v Blight (1903) 22 NZLR 837 (CA) retains its potency. The House of Lords has referred to it in R v J [2004] UKHL 42 ...
Friday, October 15, 2004

Evidential or legal burdens on the defence

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Sometimes the legislation creating an offence places a burden on the defendant, if he is to avoid conviction, to prove something. In the abs...
Thursday, October 14, 2004

Reasoning with similar fact evidence

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The recent Canadian case, R v Perrier 2004 SCC 56 (30 September 2004), reminds us about the controversy concerning whether evidence about c...
Sunday, October 10, 2004

Last criminal appeal to the Privy Council

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The final criminal appeal from New Zealand to the Privy Council is expected to be heard early next year. The Court of Appeal decision, R v H...
Wednesday, October 06, 2004

The good and the bad

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Although we have some reservations about the correctness of the Court of Appeal’s decision in R v Howse [2003] 3 NZLR 767; (2003) 20 CRNZ 8...
Monday, October 04, 2004

Who informed?

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A recently reported case, although decided over a year ago, on 24 July 2003, illustrates how pressure of time can result in the Court of App...
Sunday, September 26, 2004

Formalism and pragmatism

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Readers of Richard A Posner's "The Principles of Jurisprudence" (1990, Harvard University Press) will be well acquainted with...
Tuesday, September 21, 2004

Just hearings for detained "enemy combatants"

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In Hamdi v Rumsfeld , 542 US 507 (28 June 2004) the Supreme Court grappled with the rights of a detained man, allegedly an "enemy comba...
Thursday, September 16, 2004

Policy and recognition of defences

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The flexibility of the common law is such that policy prevails when recognition of new defences is in issue. Illustrating this is Behrooz v ...
Tuesday, September 14, 2004

Fairness and access to witnesses

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In USA v Moussaoui USCA 4th Circuit No 03-4792, 13 September 2004, the prosecution refused to permit the accused access to three detainees ...

Interception and search

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The extension of warrants to intercept private communications, from oral to any form of communication, pursuant to s 35 and Schedule 2 of th...