Thursday, November 24, 2011

Obviousness and obfuscation

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Civil proof of offending It should be obvious that proving something to the civil standard does not undermine failure to prove it to the c...
Tuesday, November 22, 2011

Conviction appeals – burdens and risks

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How sensitive should an appellate court be to the risk that an error at trial was sufficient to require the quashing of a conviction and the...
Tuesday, November 15, 2011

When our hair was black

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In the course of considering the alleged naivety of Jonathan Sumption (UKSC blog 9 November 2011) I reached for my copy of "Equality...
Sunday, November 13, 2011

Informer privilege

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Both the state and a police informer may have an interest in keeping confidential the identity of the informer. But such confidentiality is ...
Thursday, November 03, 2011

NZSCBlog

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[Update: the "NZSC blog" seems to have disappeared. I imagine that students are under too much pressure to produce quality beyond ...
Tuesday, November 01, 2011

What’s the word for ...?

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Procedural fairness aims at facilitating substantive fairness. Sometimes procedural rights are so close to the right to a fair trial that th...
Thursday, October 27, 2011

Voices of reason

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Thanks are due to UKSCBlog for drawing our attention to video interviews with some of the Justices, published by the Guardian .

We simply don’t do that

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Acceptance of a bribe can occur after the performance of an act beneficial to the payer and without any expectation of payment when the act ...

Deflecting the jury from its fundamental task

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"The instructions which a trial judge gives to a jury must not, whether by way of legal direction or judicial comment on the facts, def...

Omission? What omission?

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For discussion of liability for omissions under the law of the Commonwealth of Australia, see Commonwealth Director of Public Prosecutions v...

Some errors of law in judicial fact finding

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For a reminder of the kinds of things that can be errors of law arising out of a trial judge's treatment of the evidence, see R v J.M.H....

That decision (maple) tree again

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If evidence was wrongfully obtained, what is the relevance to its admissibility that it could have been obtained lawfully? Sometimes failu...
Friday, October 21, 2011

Previous acquittals as propensity evidence

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In Fenemor v R [ 2011] NZSC 12 7, the Supreme Court declined to establish a rule excluding, as propensity evidence, evidence of facts on wh...
Saturday, October 08, 2011

Fruit of the poisoned tree

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When may evidence obtained 'downstream' from improperly obtained evidence be admissible? By downstream I mean that the finding of th...
Friday, October 07, 2011

The right to legal advice

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When does a person who is questioned by the police have the right to legal advice? There was a tussle over this in Ambrose v Harris, Procu...
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...