Tuesday, February 22, 2005

Bias and expertise

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At common law the absence of bias includes the absence of the appearance of bias. Consequently, a tribunal may be impugned for bias without ...
Monday, February 21, 2005

Damages and breach of the right to a fair hearing

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Breach of the right to a fair trial will usually be vindicated by the declaration of the appellate court that there had been a breach, and a...
Friday, February 18, 2005

Jury secrecy

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To what extent, really, is the law applied in the jury room? The almost impenetrable veil of secrecy behind which jury deliberations are con...
Thursday, February 17, 2005

Miscarriage of justice, or inconsequential error?

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When can an appellate court hold that, notwithstanding an error at trial, conviction of the accused was not a miscarriage of justice? The di...
Monday, February 14, 2005

"Applying" the law

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A judge may not in any circumstances direct a jury to find an accused person guilty: R v Wang [2005] UKHL 9 (10 February 2005). This is so ...
Friday, February 11, 2005

Collateral evidence: rule or discretion?

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In contrast to revising hearsay laws that have been considered by the legislature and by the Law Commission, as was done by the House of Lor...
Monday, February 07, 2005

Principled evolution, or more mental gymnastics?

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Funnily enough, the same day as the High Court of Australia heard the phrase "mental gymnastics" used by one of its Judges ( Kamle...
Sunday, February 06, 2005

Limiting reasonable rights

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Lord Steyn has, at least twice, stated that the New Zealand Bill of Rights Act 1990 ("NZBORA"), requires that legislation has to h...
Friday, February 04, 2005

Hearsay and mental gymnastics

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Sometimes it seems right to admit evidence that is technically inadmissible. The problem of rationalising the admission of hearsay evidence ...
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 ...