Thursday, April 30, 2009

“the kingdom would come to confusion”

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The interpretation of legislation can, on rare occasions, be assisted by reference to information about the creation of that legislation. Ev...

Cut-throat issues

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In Jones v R [2009] HCA 17 (29 April 2009) some interesting issues were mentioned, but they did not need to be decided. They concern the us...
Wednesday, April 22, 2009

Search incidental to arrest

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An interesting aspect of Arizona v Gant [2009] USSC, No 07-542, (21 April 2009) is the omission of any reference to Herring v United States...
Tuesday, April 21, 2009

Reviewing or revising

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There can be a fine line between evaluating facts and making up new ones. In Carroll v R [2009] HCA 13 (21 April 2009) the CCA NSW majority...
Tuesday, April 14, 2009

Private garbage?

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Do the police act improperly if they search, without warrant, the contents of a rubbish bag left on a property by the fence line for uplifti...
Tuesday, April 07, 2009

Extended interrogations and voluntariness

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Awful legislative drafting caused a 5 – 4 split in the United States Supreme Court in Corley v United States [2009] No 07-10441, 6 April 20...
Thursday, April 02, 2009

Jury selection

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Just a glance at Rivera v Illinois [2009] USSC No 07-9995 (31 March 2009) will get you thinking about whether there should be peremptory ch...
Monday, March 30, 2009

Youth justice procedures in Canada

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A Supreme Court of Canada case, abundant in citations of authors and cases, and with 12 counsel appearing, deals with aspects of youth justi...
Thursday, March 26, 2009

Duties, errors and complaints

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For discussion of counsel's duties in relation to defences that have no real prospect of success, see Knowles v Mirzayance [2009] USSC ...
Monday, March 23, 2009

Just leave it to the Crown

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The Supreme Court of New Zealand has decided the jury vetting case (see blogs for 14 April 2008 and 29 July 2008): Gordon-Smith v R [2009] ...
Friday, March 20, 2009

The nastiness of tapering

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For a horror story of abuse of power see Takitota v. The Attorney General & Ors (Bahamas) [2009] UKPC 12 (18 March 2009). How do the co...
Thursday, March 19, 2009

Finality

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Three Privy Council decisions: The inherent jurisdiction of final appellate courts Bain v R (New Zealand) [2008] UKPC 6 (16 March 2009) at ...
Thursday, March 12, 2009

The melancholy fact

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The melancholy fact of the existence of dishonest lawyers has led to the need, on occasion, to intercept the private communications between ...
Tuesday, March 10, 2009

Pressures of work and difficult clients

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Just a small note today on an illustration of how some sorts of delay can be attributable to the accused, not to the prosecution: Vermont v ...
Thursday, March 05, 2009

Reverse onus and standard of proof

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Reverse onus provisions for establishing a defence can conflict with the right to be presumed innocent until proven guilty, as was seen in H...
Monday, March 02, 2009

Watching the river flow

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Tomorrow, and tomorrow, and tomorrow, Creeps in this petty pace from day to day ... Unaccountable official delay in determining the appe...
Sunday, February 22, 2009

Strasbourg approves the special advocate procedure

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The special advocate procedure has received endorsement from the Strasbourg Court: A v United Kingdom [2009] ECHR 301 (19 February 2009). T...
Wednesday, February 11, 2009

Abuse of process fundamentals

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There is a small part of the brief judgment of the High Court of Australia in PNJ v R [2009] HCA 6 (10 February 2009) that is of interest t...
Friday, February 06, 2009

Unfair, secret and too long

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A fair trial is one where the law is accurately applied to facts that are determined without partiality. The partiality aspect of a fair hea...
Monday, February 02, 2009

Extended secondary liability in Queensland

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Extended secondary liability was the subject of R v Keenan [2009] HCA 1 (2 February 2009). The High Court of Australia was here considering...
Thursday, January 29, 2009

Rights restriction or deprivation: pragmatic balancing

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When is a restriction on movement a deprivation of liberty? In Austin v Commissioner of Police for the Metropolice [2009] UKHL 5 (28 Januar...
Tuesday, January 27, 2009

Dealing with unsavouriness

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Two cases from the Supreme Court of Canada concern the directions a judge should give to a jury on the need for caution about the evidence o...

Fairness and the right to cross-examine

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Inability of the defence to cross-examine a prosecution witness may arise through anonymity or absence, but the accused's right to a fai...
Monday, January 26, 2009

Another blow to legislated sentencing

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The non-mandatory nature of the sentencing guidelines has been emphasised in Spears v United States [2009] USSC 21 January 2009. In using t...