Friday, September 30, 2011

No matter what you say ...

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For a brief look at the requirements for establishing judicial bias, see Siemer v Heron [2011] NZSC 116 . Orthodox response to a recusal app...
Monday, September 19, 2011

The NZSC on improperly obtained evidence

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At last Hamed v R [2011] NZSC 101 is online, although in redacted form. It does not answer the question that will occur to most people: is ...
Sunday, September 18, 2011

Search, surveillance and the Urewera case

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A newspaper report today has a commentator suggesting that confidence in the police will be reduced because of their handling of the invest...
Friday, September 16, 2011

A small collection ...

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No compensation for judicial breach of rights If a judge breaches your rights under the Bill of Rights, you may not claim compensation: At...
Friday, September 09, 2011

More on Momcilovic

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I should, so as not to appear lazy, add a few observations on the aspects of R v Momcilovic (last entry) concerned with interpretation. I...
Thursday, September 08, 2011

Reverse onus provisions and the presumption of innocence

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A reverse onus provision is one that puts a burden of proof on the defendant. It raises questions about what standard of proof is required t...
Sunday, August 28, 2011

For the curious ...

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To begin the eighth year of this site, I reflect on the rewards and pleasures of scholarship, here .
Friday, August 26, 2011

Scientific research on eyewitness identification evidence

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Every criminal law practitioner and judge should read the amicus brief filed by the American Psychological Association in Perry v New Hamps...
Wednesday, August 24, 2011

Now we are seven

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That's seven years of this blog! Usually I mark the anniversary by some repulsively self-indulgent boasting, smugly superior conceit or ...
Monday, August 22, 2011

The relevance of expert opinion

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Thanks to Peter Tillers in New York for drawing our attention to a High Court of Australia decision which includes discussion by Heydon J o...
Sunday, August 21, 2011

Legal aid eligibility and fair trial requirements

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At a time when we are considering the implications of restricting the availability of legal aid, the Supreme Court of Ireland reminds us tha...
Friday, August 19, 2011

Evidence of vulnerable witnesses – pre-trial recording

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Only rarely will it be appropriate for a court to permit pre-trial recording of the evidence, including cross-examination, of a vulnerable w...
Friday, August 12, 2011

Extradition, separation of powers, abuse of process and the Westminster model

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Extradition can be opposed on abuse of process grounds: Fuller v Attorney-General (Belize) [2011] UKPC 23 (9 August 2011) at [58]. The rel...
Saturday, July 23, 2011

To retry or not to retry, that is the question

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A strong legal system will ensure a fair trial for a defendant who is obviously guilty of a serious crime. R v Maxwell [2010] UKSC 48 (judg...
Thursday, July 14, 2011

Substantive and procedural fairness

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Procedure is the means by which the law is brought to life. It converts words to actions. The law recognises a right to a fair trial, and th...
Tuesday, July 12, 2011

Changing perceptions of fairness

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The law seems to move rather slowly for poor people in Trinidad and Tobago, if Krishna v The State (Trinidad and Tobago) [2011] UKPC 18 (6 ...
Sunday, July 10, 2011

When time is broke ...

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"What is dawn in the city to an elderly man standing in the street looking up rather dizzily at the sky?" This sentence from the ...
Saturday, July 09, 2011

Don’t let me spoil this one by quoting ...

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There are rare moments when a brilliant judgment makes others look vapid and pathetic. So it is with Judge Bonello's roasting of the Hou...
Saturday, July 02, 2011

Sorts of fairness: abuse of process, plea bargaining and the stay of proceedings

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There is something unsettling about R v Nixon , 2011 SCC 34 (24 June 2011). It is the possibility that an issue of trial fairness may be de...
Friday, July 01, 2011

What price access to justice?

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Today our new Legal Services Act 2011 comes into force, just as we are digesting Lady Hale's Sir Henry Hodge Memorial Lecture, " Eq...
Tuesday, June 28, 2011

Deterrence or rights protection: why exclude improperly obtained evidence?

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Davis v United States (2011) USSC No 09-11328 , 16 June 2011 emphasises the rationale for declining to exclude evidence obtained by unreaso...
Monday, June 27, 2011

Public Defence Service costs and private bar legal aid costs

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A spat looms on whether the Public Defence Service is more expensive than having legally aided criminal cases dealt with by the private bar:...
Wednesday, June 22, 2011

Bring on the holidays!

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Grown-ups will remember when we used to use the pejorative term Kafkaesque. This word comes to mind on reading R v EMW 2011 SCC 31 (17 June...
Saturday, June 18, 2011

Risks, aversions, coercion, and provocation

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A clutch of recent Privy Council decisions: the risks of dock identification, the Board's aversion to the death penalty, jury perception...
Wednesday, June 15, 2011

The unsaid unchartable universe

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The more one says, the more one does not say. The universe of discourse is infinite. This is why attacks on reasoned judge-alone decisions m...
Thursday, June 02, 2011

Raising the bar

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For a collection of articles illustrating brilliant scholarship in our areas of interest, see the Journal of Commonwealth Criminal Law , ava...
Tuesday, May 31, 2011

New complications for old

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Mahomed v R [2011] NZSC 52 (19 May 2011) shows that the law of similar fact evidence is still contentious. It has recently been reformed, b...