Saturday, July 23, 2005

Fundamental difficulties

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New Zealand has not been served well by the Privy Council in the last criminal appeal it will hear from this country. It is alarming that so...
Tuesday, July 19, 2005

Proof and risks

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Is there a difference, in terms of whether a standard of proof is applicable, between deciding whether a "fact" is proved, and dec...
Wednesday, July 13, 2005

"Starting points" for sentences

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The starting point for a sentence is "the true point of comparison with other offending before individual aggravating and mitigating fa...
Monday, July 11, 2005

Fairness to Prisoners

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Parole Board decisions differ from those of trial courts: the former give paramount consideration to the safety of the community (Parole Act...
Tuesday, July 05, 2005

Ordinary self-control

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Six days before Timoti v R was decided, applying the Rongonui interpretation of provocation, the Privy Council addressed the English law o...
Monday, May 30, 2005

June hiatus

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Your blogger is on vacation. Back in July.
Thursday, May 26, 2005

Evidence Bill (5)

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What assistance in interpreting the proposed evidence legislation will the courts be able to obtain from the common law? In the absence of a...
Wednesday, May 25, 2005

Evidence Bill (4)

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The need to avoid a substantial miscarriage of justice is the pervasive criterion for the correctness of decisions, considered individually ...
Tuesday, May 24, 2005

Evidence Bill (3)

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The third of the evidence topics requiring the exercise of judicial judgment is the method by which judges act to ensure the fairness of the...
Monday, May 23, 2005

Evidence Bill (2)

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The second area of admissibility requiring exercise of judgment has been traditionally formulated as the balancing of probative value agains...
Saturday, May 21, 2005

Evidence Bill (1)

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The exercise of judgment is fundamental to the application of the rules of evidence. There are 4 areas in which judgment is critical:  The ...
Thursday, May 05, 2005

Proof and prejudice

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To what extent can trial fairness be sacrificed to the need to establish the truth? The answer depends on whether the case is criminal or ci...
Wednesday, May 04, 2005

Common law rules and the proposed Evidence Code

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The Supreme Court of Canada last week gave us a clue as to what approach to the admissibility of hearsay evidence in cases of conspiracy or ...
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 ...