Thursday, June 21, 2012

What are the mental elements of dangerous driving?

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Dangerous driving is risk-based, not negligence-based: King v The Queen [2012] HCA 24 (20 June 2012). It is not necessary to ask whether th...
Friday, June 15, 2012

Responsibility for dangerous driving

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The offence of dangerous driving is carefully analysed in R v Roy , 2012 SCC 26 (1 June 2012), where the appellant had been convicted of d...
Saturday, June 09, 2012

Criminal responsibility, insanity, diminished responsibility and the role of the common law

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The criteria for holding a person (D) responsible in criminal law for a particular harm emerge from moral decisions. These criteria are man...
Thursday, May 31, 2012

Ascertainable law

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The law must be ascertainable. This is a requirement for the enforceability of enacted law and for the validity of common law. In jurisdicti...
Saturday, May 26, 2012

What is a verdict?

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And for more on procedure as a means of giving effect to the substance of the law, see the failure of this concept in Blueford v Arkansas ...
Friday, May 25, 2012

Too late! Or is it ...?

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As everyone knows, procedural laws are for bringing the law into effect. Procedure brings the law to life, as I once said. Another thing tha...
Tuesday, May 22, 2012

Causing moral responsibility

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In Maybin v R , 2012 SCC 24 (18 May 2012) Karakatsanis J for the Court discusses the criteria for determining that D's acts have caused ...
Friday, May 11, 2012

Suppressing contempt

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Our Court of Appeal has today confirmed the inherent power of a court to suppress its judgments on an interim basis in order to protect the...
Thursday, April 19, 2012

My 500th posting: Probative value and independent evidence

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Probative value is the tendency that an item of evidence has to prove an issue in a case. Does the measure of that tendency depend on other ...
Friday, April 06, 2012

The transcendent civility of verbal eunuchs

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The case with the most amusing facts in a long time is Doré v Barreau du Québec , 2012 SCC 12 (22 March 2012). A judge was rude to counsel...
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...