Saturday, March 31, 2012

Elucidating Weiss? Grappling with “substantial miscarriage of justice”

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Another look at Weiss (noted here 16 January 2006, 9 February 2006, 25 June 2007, and various dates – search this site for "Weiss...

Propensity evidence: relevance and probative value

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The topics du jour in BBH v R [ 2012] HCA 9 (28 March 2012) were the requirements of relevance and probative value in relation to the ad...

Kettling and tracking

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A lecture on Thursday evening by Professor Andrew Ashworth of Oxford reminded me to mention Austin v United Kingdom [ 2012] ECHR 459 (15 ...
Saturday, March 10, 2012

When to rescue the rescuer

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Procedural fairness may have to be sacrificed to protect a litigant's rights. An illustration is W (Algeria) & Anor v Secretary of S...
Friday, March 02, 2012

Honestly paying for illegal gains

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For a 3-2 split on statutory interpretation, involving differences over legislative intent and the scope for application of the principle th...
Monday, February 20, 2012

Need witness competency be an issue separate from fairness?

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The Supreme Court of Canada has split on the requirements for witness competency: R v D.A.I. 2012 SCC 5 (10 February 2012). The issue in C...
Saturday, February 18, 2012

Book review: “Trial by Ambush” by Joe Karam

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No objective reader of Joe Karam's "Trial by Ambush" can possibly come to any conclusion other than that Robin Bain committed ...
Saturday, February 11, 2012

Need the punishment fit the crime?

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For those of us who do not need to worry ourselves over the intricacies of Australian constitutional law, Bui v DPP (Cth) [2012] HCA 1 (9 F...
Sunday, January 15, 2012

Kahneman’s Thinking, Fast and Slow

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Everyone is reading Daniel Kahneman's "Thinking, Fast and Slow" (2011). A passage in a recent New Zealand Court of Appeal deci...
Friday, January 13, 2012

Admissibility of eyewitness identification evidence

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Just as I was sneaking back to the Southern Hemisphere the Supreme Court of the United States delivered its decision in Perry v New Hampshir...
Thursday, December 22, 2011

Extended secondary liability: assessing the risk

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" Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is ...
Tuesday, December 20, 2011

Fair trials without central witnesses

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It is possible for a trial to be fair without a central witness giving evidence in person and being cross-examined. The witness's eviden...
Sunday, December 18, 2011

Beyond the bounds of legal pragmatism

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When an orthodox application of the criteria for criminal responsibility does not meet the requirements of public policy, the law must chang...
Thursday, December 08, 2011

The strength of vagueness

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Two vague but fundamental concepts The first vague concept: abuse of process Complicity by Australian officials in the unlawful deportat...
Tuesday, December 06, 2011

Equality before the law, parity of sentence

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Some general points on disparity of sentence can be gleaned from Green v R; Quinn v R [ 2011] HCA 49 (6 December 2011). The case needs to ...
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...