Friday, April 22, 2005

A slippery slope

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What is a reasonable doubt? Judges and juries may disagree over whether the prosecution has established beyond reasonable doubt that a confe...
Thursday, April 21, 2005

Turpitudinous driving

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Motor manslaughter must be distinguished from causing death by reckless driving, causing death by dangerous driving, and causing death by ca...
Wednesday, April 13, 2005

Words for the living, money for the dead

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Remedies available to prisoners who have been denied the right to a fair hearing, or denied the right to legal representation, on charges re...
Friday, April 01, 2005

Errors at trial

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Complaints about the quality of their legal representation are sometimes made by people who are convicted at trial. These complaints rarely ...
Wednesday, March 30, 2005

Remedies for rights breaches

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The idea that breach of the Bill of Rights may attract a remedy, usually called compensation, against the Crown and distinct from tortious l...
Monday, March 28, 2005

Class A drug supply sentencing levels

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With a sideways look at statutory indications in Australia, a Divisional bench of the Court of Appeal has given guidance on the approach to ...
Friday, March 18, 2005

Duress of circumstances?

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In view of R v Hasan [2005] UKHL 22 (17 March 2005) we may doubt whether there is any room for the common law development of a defence of ...
Monday, March 14, 2005

Negligence immunity in Australia

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The High Court of Australia has decided the issue of counsel’s liability for negligence differently from the New Zealand Court of Appeal (se...
Friday, March 11, 2005

Questions about negligence

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The question whether counsel can be liable for negligence arising from conduct of criminal proceedings has deliberately, and unanimously, be...
Sunday, March 06, 2005

Equality of arms

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The New Zealand Court of Appeal, in Brown v Attorney-General 3/3/05, CA39/03, has, without having to decide the question, touched upon the ...
Thursday, March 03, 2005

The utility of rights

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Sometimes the rather constrained interpretation that courts give of the rights of a suspect lead us to suspect that judges tend to forget th...
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)...