Tuesday, May 27, 2008

The limits of comity

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In Canada (Justice) v Khadr [2008] SCC 28 (23 May 2008) s 7 of the Canadian Charter of Rights and Freedoms was applied extra-territorially....
Thursday, May 22, 2008

Preventing statutory unfairness

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It may sometimes be unjust for the courts to wait for the legislature to extend the law to fully achieve its purpose. A stay of proceedings ...
Friday, May 16, 2008

Multiplying the Crown's benefit from crime

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Depriving an offender of the benefit he obtained from his offending was the subject of three related House of Lords decisions this week: R ...

On being unable to communicate with one's self

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Perceptions of trial fairness may depend on what is known about the accused’s mental condition. An appellate court that does not know that t...
Wednesday, May 14, 2008

Facts, fairness and the proviso

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Once again the application of the proviso has come under the scrutiny of the High Court of Australia: Gassy v R [2008] HCA 18 (14 May 2008...
Tuesday, May 13, 2008

Fifteen years of illegal trials?

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For fifteen or so years the statutory procedure for empanelling juries in the British Virgin Islands has not been followed. In R v Clarke (...

Controlling the back-seat driver

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Who makes the important technical decisions concerning the way a defence is to be run, the accused or counsel representing him? In Gonzales ...
Saturday, May 10, 2008

"As I said before ..."

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The most subtle and troublesome rules of the common law concern the use that may be made at trial of a witness’s own out of court statements...
Thursday, May 08, 2008

Tainted by inadmissible evidence?

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If a judge tells a jury to ignore certain prosecution evidence, does that mean the wrongly admitted evidence can’t be used as grounds for ap...
Monday, April 28, 2008

Gymnasium improprieties

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Another case that got diverted to the irrelevant question of when the police can use sniffer dogs is R v AM [2008] SCC 19 (25 April 2008), ...

What a cute doggie!

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In R v Kang-Brown [2008] SCC 18 (25 April 2008) the accused got off a bus and his behaviour caused an undercover police officer to suspect ...
Saturday, April 26, 2008

Propensity evidence: admissibility and Bayes Theorem

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The High Court of Australia has given detailed consideration to how evidence of an accused’s propensity should be handled, in three jointly ...
Friday, April 25, 2008

Criminal and civil self-defence

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Some comments on the difference between self-defence in criminal and civil law are worth noting here. They occur in a civil action in batter...
Thursday, April 24, 2008

Strength, rights, remedies

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Sometimes, rights may be strong, but remedies weak. Virginia v Moore [2008] USSC 06-1082 (23 April 2008) illustrates strong State rights, ...

Spot the difference

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The actual and potential harm caused by an offence is a significant consideration in sentencing. It would be natural to expect that drug off...
Monday, April 21, 2008

And then there were ten ...

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Again the New Zealand Supreme Court has worked its way around the statutory prohibition on reviewing a judge’s exercise of discretion to con...
Friday, April 18, 2008

Straddling the point

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By the slimmest of margins the Supreme Court of Canada has just avoided making an awful mistake. Evidence can be admissible without it havin...
Monday, April 14, 2008

The fairness of inequality

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Should the defence always be given the same access as the prosecution has to the criminal histories of people on the jury panel? In R v King...
Thursday, March 27, 2008

Benign irrationality

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Juries don’t give reasons, so why should judges? The latest case on the proviso, the High Court’s decision in AK v Western Australia [2008]...
Thursday, March 20, 2008

Truth and consistency

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R v Stirling [2008] SCC 10 (14 March 2008) is an illustration of the common law’s treatment of the admissibility of a witness’s prior consi...