Thursday, November 24, 2005

Bain, again

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Supporters of David Bain will, no doubt, be studying Mallard v R [2005] HCA 68 (15 November 2005). Both started as petitions for the exerci...
Wednesday, November 16, 2005

Death and certainty

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How much formalism is too much? In interpreting statutes, to resolve an ambiguity, judges may focus on the context of the problematic phrase...
Monday, November 07, 2005

Dealing with vagueness

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Rights may be expressed in unavoidably vague terms, so how can they be said to be absolute? An example is the right not to be subjected to i...
Tuesday, October 25, 2005

Whose verdict?

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Appeals against conviction require consideration of whether there has been a substantial miscarriage of justice. This, in turn, can raise tw...
Tuesday, October 11, 2005

Helpful Acts?

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Legislation can make the law absurdly complicated. In Tabe v R [2005] HCA 59 (6 October 2005) Australia’s senior judges split 3 – 2 on an i...
Wednesday, October 05, 2005

Silence

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Broad common law rights that have been included in the Bill of Rights are not limited to the extent of their definition in the Bill. For exa...
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...