Wednesday, December 26, 2012

A veiled attack on substantive fairness in Canada?

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The substantive right to a fair trial must be distinguished from its procedural correlatives such as the right to confront witnesses and to...
Monday, December 24, 2012

The obligation to select an impartial jury

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Jury vetting was last week the subject of three decisions of the Supreme Court of Canada. All three inevitably focus on trial fairness. R...
Thursday, December 20, 2012

A note on substantive trial fairness

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An issue of trial fairness is raised if a judge fails to address an element of an offence. If an element is overlooked, but the evidence ove...
Saturday, December 15, 2012

Bain, Binnie, Fisher, Bayes – how should judges reach conclusions?

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Once again out little nation is divided over the Bain case and its consequences. The current controversy is over whether the report  by ret...
Thursday, December 13, 2012

Verdicts on appeal - and appeal verdicts - in Victoria

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The interpretation of "substantial miscarriage of justice" in s 276(1)(b) of the Criminal Procedure Act 2009 [Vic] was the subje...
Thursday, December 06, 2012

The unreasoned consequences of unreasonable search

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Lawful powers must be exercised reasonably, and it must be reasonable to have resort to those powers. An illustration of unreasonable resor...
Monday, November 26, 2012

Culpable stimulating

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Information can include mis-information: Mansfield v The Queen [ 2012] HCA 49 (14 November 2012) where insider trading included trading in...
Friday, November 16, 2012

Far from its best work

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I have long regarded (for example here , here , here , here , here , here ) Weiss v The Queen  [2005] HCA 81 ; (2005) 224 CLR 300 as being ...
Monday, November 12, 2012

Acting in the client’s interests but against instructions

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A cautionary note from the Privy Council on the timing of a challenge to the defendant's fitness to stand trial: Taitt v The State (Tr...
Friday, November 09, 2012

A Canadian catch-up

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Now it's time to catch up on some recent cases from the Supreme Court of Canada: R v Prokofiew , 2012 SCC 49 (12 October 2012) concerns...
Monday, October 08, 2012

Risks, numbers and criminal responsibility

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In R v Mabior , 2012 SCC 47 (5 October 2012) the Supreme Court of Canada playfully leaves us to calculate what a "realistic possibilit...
Friday, September 28, 2012

No substitute for money

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The Privy Council in Hamilton v R (Jamaica) [2012] UKPC 31 (16 August 2012) gives a useful little reminder on how a court will exercise its...
Saturday, September 15, 2012

Morality and the scope of criminal liability

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Manslaughter by dangerous act, or by an omission to perform a legal duty, was considered by the High Court of Australia in Burns v The Queen...
Tuesday, September 11, 2012

Judge-alone trials and reasons for verdicts

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Today the High Court of Australia has held inadequate the reasons given at a judge alone trial for convicting the defendant (appellant): Dou...
Saturday, August 25, 2012

Overwhelmed by prejudicial evidence

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When is an error at trial insufficient to require an appeal court to quash a conviction? The more the attention that is given to this questi...
Friday, August 24, 2012

And now we are eight!

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And that is 8 years of this site's existence. It isn't really a blog in the sense of an invitation to readers to post comments. Inst...
Thursday, August 16, 2012

When can one defendant rely on another defendant’s statement to the police?

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If two defendants, A and B, are on trial together, when can A rely on part of B's statement to the police if B does not give evidence? B...