Tuesday, December 23, 2008

Rational driving

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Anyone using the roads these holidays will be pleased with the Supreme Court's decision in Aylwin v Police [2008] NZSC 113 (19 December...
Saturday, December 20, 2008

Degrees of forgery

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Judges don't always agree that a given statutory text coincides with its purpose. In Li v R [2008] NZSC 114 (19 December 2008) the majo...
Friday, December 19, 2008

Kingdom or country?

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For discussion of when time begins to run in relation to the right to be tried within a reasonable time, see Burns v HM Advocate [2008] UKP...
Thursday, December 18, 2008

The implications of deeming

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What are the implications of the phrase "A discharge under this section shall be deemed to be an acquittal": s 347(4) Crimes Act ...
Friday, December 12, 2008

Don’t mention rights ...

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Just a note on reverse onus provisions and when the legal burden is appropriate instead of merely an evidential burden: R v Chargot Ltd (t/a...
Thursday, December 11, 2008

Absolute or relative inhumanity

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As recently as 18 March 1789 Catherine Murphy was burnt at the stake at Newgate, although locals regarded this event distastefully. Her deat...
Monday, December 08, 2008

DNA record retention

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Retention by the police of information about a suspect can be a breach of the suspect's right to privacy: S and Marper v United Kingdom ...
Thursday, December 04, 2008

Discuss: no case or no chance?

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When should a judge prevent a prosecution case from continuing and discharge the accused for lack of evidence? The "no case" submi...
Wednesday, December 03, 2008

Breach of right to legal advice

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Failure by the police to advise a suspect – now the accused - of his right to legal advice can result in exclusion of evidence against him....
Saturday, November 15, 2008

Issue estoppel: rule or discretion?

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What place do rules have in modern evidence law? Should the admissibility of evidence of prior misconduct, for which the accused has been t...
Tuesday, November 11, 2008

Exclusion of improperly obtained evidence

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Users of my method for analysing discretionary exclusion of improperly obtained evidence will be interested to see that in R v Horsfall [20...
Thursday, November 06, 2008

I could do it in my sleep

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Does it matter that the judge sleeps during significant parts of a trial? What if there is a jury, can the judge sleep longer? What if the j...
Monday, November 03, 2008

Overkill

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By laying too many charges the prosecution may give the accused a get-out-of-jail-free card. This happened in R v JF [2008] SCC 60 (31 Octo...
Friday, October 31, 2008

Reducing convictions

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If juror ignorance about the meaning of "beyond reasonable doubt" had the effect of causing too many acquittals, you can be sure s...
Sunday, October 26, 2008

Over-zealous handcuffing

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One of the limitations of only looking at the decisions of the senior appellate courts is that sometimes first instance decisions that perfe...
Saturday, October 25, 2008

On mixed statements

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The Supreme Court of Canada has simplified the direction that judges are to give juries on mixed statements. These are statements by an accu...
Thursday, October 23, 2008

Fantasy and invention

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In discussing recent invention (see blog for 8 July 2008 concerning R v Barlien , and the further comment on 19 July 2008), I suggested that...

Our fair-minded feminine side

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Barristers, being fair-minded observers of the judiciary, are constantly amazed at how fair-minded judges are. (I smirk, but then I often sm...
Tuesday, October 21, 2008

Too much information

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Anyone who thinks criminal cases are really just civil cases but with a higher standard of proof as to the ultimate issue will not be surpri...
Sunday, October 19, 2008

Our ethos is different from yours

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In a decision that very nearly passed me by – because of its civil nature – the Supreme Court of Canada has held that the civil standard of ...
Friday, October 10, 2008

Risk of unfairness: is the criminal standard of proof applicable?

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On a day when I am feeling particularly smug , I am not going to spoil my mood by risking being in contempt of court. So my comments on Soli...