Thursday, December 22, 2005

The more, the merrier

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How straight-laced are Quebeckers? One would have thought this was a silly-season question. And yes, the people of Quebec are called Quebeck...
Monday, December 19, 2005

The evil that men think

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If I am offended, not by what I see a person doing, but by what I think he might do later, have I observed behaviour that the criminal law c...
Friday, December 16, 2005

Proof or believability

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One of the difficult distinctions in the law of evidence concerns the use of statements made by a witness on a previous occasion to contradi...
Monday, December 12, 2005

The "rule" in Browne v Dunn

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Can the rules of evidence, that have been designed to ensure fairness, be ignored if the judge feels that it would be more fair to ignore th...
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Friday, December 09, 2005

How civilised are we?

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What use of torture is tolerable? More precisely, what risk that evidence tendered to the court was obtained by torture is tolerable? The Ho...
Monday, December 05, 2005

Synchronicity

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The House of Lords and the New Zealand Supreme Court decided similar cases on 1 December 2005. Each concerned the rights of persons who had ...
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...