Tuesday, February 26, 2013

Amending the Criminal Procedure Act 2011 [NZ]

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Some tweaking of the Criminal Procedure Act 2011 has been found to be necessary. My submissions on the Criminal Procedure Legislation Bill...
Friday, February 15, 2013

Contempt, imprisonment and appeals

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A few interesting remarks on imprisonment for contempt and on sentence appeals generally were made in B (Algeria) v Secretary of State for t...
Thursday, February 14, 2013

Withdrawal from offending at common law – evidential and legal burdens

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The burden and standard of proof of the affirmative defence of limitation, and some aspects of the affirmative defence of withdrawal, were ...
Monday, February 11, 2013

The effect of trial delay on sentence determination

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Aggravating factors at sentencing do not include delay in the proceedings if the defendant was not responsible for that delay. Nor do they ...
Thursday, January 31, 2013

Not a long vacation

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And now a quick look at some decisions of the Supreme Court of Canada, the delivery of which reminds us that in the Northern Hemisphere it i...
Wednesday, January 02, 2013

Proportionate confiscation of proceeds of crime

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You can't read the dissent of Lord Phillips and Lord Reed in R v Waya [ 2012] UKSC 51 (14 November 2012) without marvelling at its br...
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...