Monday, May 31, 2010

A critical age

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A glance at practice in other nations supported the United States Supreme Court's decision (6-3) that the Constitution does not permit a...
Wednesday, May 26, 2010

The mental elements of conspiracy

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Conspiracy is an agreement to commit an offence plus an intention that the offence should be committed by one or more of the conspirators. T...
Thursday, May 20, 2010

Highest procedural protection, but not by jury trial

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Since proceedings for contempt of court must be summary, in the sense that jury trials are not appropriate for contempt, they cannot be puni...
Wednesday, May 19, 2010

Relativity and mitigating factors

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Lawyers' reasoning is not always easy for non-lawyers to grasp. It is obvious to criminal lawyers that if at sentencing a mitigating fac...
Tuesday, May 18, 2010

Finding mistrial and ordering retrial after acquittal

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In R v Gwaze [2010] NZSC 52 (17 May 2010) a retrial was ordered because some defence evidence had been admitted wrongly and there had been...
Saturday, May 15, 2010

Clean scene or snitch glitch?

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My criticism of the New Zealand Supreme Court's majority decision in Morgan v R can now be assessed in the light of a correct approach...
Thursday, May 13, 2010

Confidentiality and clear decision modelling

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Anyone interested in claims to privilege by the media, especially claims in resistance to the execution of search warrants, will need to rea...
Tuesday, May 11, 2010

Stairway to heaven?

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Disagreement over whether sufficient reasons had been given for a judge-alone decision occurred in the Supreme Court of Canada in R v Szczer...
Friday, April 16, 2010

Liability in international criminal law – exclusion from refugee status

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International criminal law may contain wider complicity provisions than exist in domestic law. Different standards for decision making can a...
Thursday, April 15, 2010

Fundamentals of secondary liability and wilful blindness

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A useful reminder of the meanings of aiding, abetting, and wilful blindness has been given by the Supreme Court of Canada in R v Briscoe [2...
Friday, April 02, 2010

Notional even-handedness?

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Who can more easily adduce hearsay evidence – the prosecution or the defence? Or are they equal? In Morgan v R (criticised here recently ) ...

Slaves to the system?

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For refusal of counsel's application for leave to withdraw from acting, see R v Cunningham [2010] SCC 10 (26 March 2006).
Tuesday, March 30, 2010

Current purpose or original meaning: interpreting the US Constitution

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Justices Breyer and Scalia debate Constitutional interpretation! Video clip available here.
Tuesday, March 23, 2010

Possession and internet files

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The meaning of possession of electronic files has been established by the Supreme Court of Canada in R v Morelli [2010] SCC 8. This case co...

Evidence of fingerprint matches

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For an interesting article on how fingerprint evidence should be given, see New Scientist, 22 March 2010 , "Fingerprint evidence to ha...
Thursday, March 18, 2010

The Waihopai spy base case

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In this site, which is aimed at the decisions of leading appellate courts, I do not usually comment on trials. However, today our little nat...

We disagree, but we won’t say why

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The majority in Morgan v R [2010] NZSC 23 (16 March 2010) do not explain why they reach the opposite conclusion to that of the dissenting ...
Wednesday, March 03, 2010

Small, but perfectly formed – judicial acceptance of LCN DNA analysis

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Updating the forensic use of LCN DNA analysis: R v Wallace [2010] NZCA 46 surveys developments and refers to R v Reed & Garmson (2009...
Monday, February 15, 2010

Criminal Procedure Simplification

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For my comments on aspects of the New Zealand Law Commission's Criminal Procedure (Simplification) Project – Reforming Criminal Procedur...
Wednesday, January 20, 2010

When fallacies don’t matter

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The United States Supreme Court has discussed the prosecutor's fallacy in McDaniel v Brown [2010] USSC No 08-559, 11 January 2010. Afte...
Monday, January 18, 2010

Overview (4) – Reasoning with uncertainty

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We can be sure about very little. " 'We reason rashly and at random ,' says Timaeus in Plato, ' because our judgements, lik...
Thursday, January 14, 2010

Overview (3) - Balancing

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Application of rules is the least interesting part of judicial decision making. Vastly more intellectually absorbing is the process of reach...
Wednesday, January 13, 2010

Overview (2) – Standards of proof

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[I have seen that this is an oft-visited posting. For revision and updates, see the Introduction in the pdf of this site, linked here .] T...
Tuesday, January 12, 2010

Overview (1) – Interpreting the proviso

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This introductory part continues with my overview of important topics that are often addressed by the appellate courts in criminal cases. Wh...