Monday, September 19, 2005

Reverse onus and the strength of rights

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In R v Phillips [1991] 3 NZLR 175 (CA) the New Zealand Court of Appeal missed the opportunity to lead the way in upholding human rights. In...
Tuesday, September 13, 2005

Admissibility of pre-trial denials

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For no good reason, there has recently been some hesitation about whether the exculpatory parts of a statement that also has incriminating c...
Friday, August 26, 2005

The proviso

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Vexed issues concerning the application of s 385(1) of the Crimes Act 1961 are on the way to being resolved as a result of the Supreme Court...
Thursday, August 25, 2005

Impartiality and reason

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On this, the first anniversary of the start of this blog, we consider a case that illustrates how not to get the court on your side. In Mu...
Tuesday, August 09, 2005

Purpose and policy

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R v Lavender [2005] HCA 37 (4 August 2005) required the High Court of Australia to decide whether malice is an element of manslaughter in l...
Friday, August 05, 2005

Silence as evidence

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When, if ever, is the accused’s silence at trial evidence of his guilt? The conventional view is that silence itself is not evidence of anyt...
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...