Thursday, March 31, 2011

Abuse of process, stay of proceedings, and integrity

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The inherent power of a court to stay criminal proceedings on grounds of abuse of process is a discretionary matter, not to be fettered by r...

Disobedient fact-finders

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For an interesting article on the adverse effects of a rule (as opposed to a discretion) excluding improperly obtained evidence, and the way...
Wednesday, March 30, 2011

Using relevance to prevent unfairness

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Today's decision of the High Court of Australia in Stubley v Western Australia [2011] HCA 7 is noteworthy on three points. The amazi...
Tuesday, March 08, 2011

Sentencing the reformed offender

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The theme of maximum flexibility for a judge in fixing a sentence that fits both the crime and the offender, recently discussed here in rel...
Monday, March 07, 2011

Confronting imaginary emergencies

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Michigan v Bryant , USSC No 109-150, 28 February 2011, continues the line of cases which purports to bring the reliability exception to the ...
Saturday, March 05, 2011

Aiding or standing by?

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Aiding an offence requires a positive act of assistance in its commission. This is not new law, but it is usefully illustrated in Robinson v...
Tuesday, March 01, 2011

Thinking for the jury

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One of the requirements for a fair trial is the correct application of the law. When a jury has doubts about what the relevant law is, it ma...
Tuesday, February 22, 2011

Securing trial fairness

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The primacy of a defendant's absolute right to a fair trial is preserved in aspects of Canadian evidence law concerning the withholding ...
Tuesday, February 08, 2011

Second thoughts

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A witness's privilege against self-incrimination Cases of alleged domestic violence are among those where a complainant may wish to den...
Thursday, January 27, 2011

Res judicata or double jeopardy?

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The different foundations of the special pleas (autrefois convict/acquit) and issue estoppel are called to mind by Coke-Wallis, R (on the ap...
Wednesday, January 05, 2011

Trial fairness and conviction appeals

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Stimulating holiday reading! My new paper on what a "fair trial" means and on reform of the criteria for allowing appeals against ...
Friday, December 10, 2010

Judging or calculating?

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Some general thoughts on sentencing guideline judgments are prompted by the High Court of Australia's decision this week in Hili v R; Jo...
Monday, December 06, 2010

Respectfully yours ...

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For my submissions to the Justice and Electoral Committee on the Criminal Procedure (Reform and Modernisation) Bill 243-1 (2010), updated as...
Monday, November 29, 2010

Relevance and unreasonable rage

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There may be occasions where a judge may rule that evidence initially thought to be relevant to an issue must be ignored. The Supreme Court ...
Friday, November 26, 2010

Power to disclose

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Does voluntary disclosure to the police by an electricity supply company of the defendant's power usage breach a right to privacy? The S...
Sunday, November 21, 2010

Relevance, probative value, and Bayesian reasoning

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Peter Tillers has drawn everyone's attention to an interesting discussion of relevance, " Bayesian Wars Redivivus – An Exchange ...
Tuesday, November 16, 2010

Accounting for guilty pleas – justice, not economics

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Whereas South Australia v Totani ( last note) illustrated the error of a legislature in depriving a court of its judicial function, Hessel...
Friday, November 12, 2010

When laws go crazy

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People interested in whether a legislature may require a court to act unjustly may get some pointers from French CJ's judgment in South ...
Saturday, November 06, 2010

Fair multiplicity

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A routine point of criminal law was the reason for the unopposed allowing of the appeal in Mason v R [2010] NZSC 129 (3 November 2010): s 3...
Friday, November 05, 2010

Good character direction

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An addition to our collection of cases illustrating when absence of a good character direction requires the quashing of a conviction: Campbe...
Thursday, November 04, 2010

W(h)ither Weiss?

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Usually only one side in a criminal case appeals, but in R v Nguyen [2010] HCA 38 (3 November 2010) the Crown appealed against the Court of...
Wednesday, November 03, 2010

Classic probability conundrums

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There are many examples online of probability conundrums. I have mentioned some in my draft paper on propensity evidence, linked on this pag...
Wednesday, October 27, 2010

Another look at the right to legal advice

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The relationship between the right to legal advice and the right to a fair hearing, discussed here in commentary on R v Sinclair , 15 Octobe...