Thursday, June 27, 2013

Criminal process, compulsory interrogation, statutory construction, and the right to a fair trial

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When might a statute impliedly compromise fundamental rights connected with criminal proceedings? This issue was at the heart of X7 v Austra...
Tuesday, June 18, 2013

Dissent on the Fifth Amendment, helpful judgment writing, and the permanence of grades

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Pre-trial, non-custodial, silence by a voluntarily cooperating person, during police questioning, was the subject of a prosecutor's invi...
Sunday, June 16, 2013

When trials do not have to be “according to law”

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Does a trial always have to be "according to law"? No. Being in accordance with the law is not a sufficient condition for a lawful...

Modifying, or applying, the law

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Appellate courts sometimes have to extend, modify, or reshape existing law to recognise matters of public policy. More usually, they merely ...
Monday, June 10, 2013

New book: Criminal Procedure in New Zealand

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Those of you who need to pay attention to the criminal law of our small but picturesque country should be interested in a new textbook, sho...
Sunday, June 09, 2013

Getting good policy past the Fourth Amendment

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Maryland v King USSC No 12-207 , 3 June 2013 illustrates how interpretations of the Constitution of the United States of America can d...
Friday, June 07, 2013

Pragmatism and lawfulness

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State of NSW v Kable [ 2013] HCA 26 (5 June 2013) is a reminder of the law's foundation in pragmatism. To make the legal system serve ...
Friday, May 17, 2013

Giving reasons for dismissing appeals

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The constitutional importance of reasons being given by an appellate court when it dismisses an appeal is emphasised in Laing v The Queen (...
Thursday, May 09, 2013

A failed attempt at retrospective criminalisation

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Where an "offence is committed by an omission to perform an act that by law there is a duty to perform" (s 4.3(b) of the Criminal ...

Judicial redefinition of veracity evidence

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In our Evidence Act 2006 , the veracity rules concern particular kinds of character evidence. They may be used by a defendant to show a pro...
Tuesday, April 02, 2013

Search and the implied licence to enter private property

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In criminal law the facts can be simple but the law complex. This is why criminal lawyers appear to some observers to be vastly more intelli...
Saturday, March 30, 2013

Informed advice on consequences of plea: changing perceptions of fairness

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Sometimes when judges make new rules they apply retrospectively to cases that have already been decided. Obviously this could cause chaos, s...
Friday, March 29, 2013

Jeopardy from silly acquittals?

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"To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk tha...

Sniffer dog reliability and probable cause for search

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There were times when Aldo the drug dog was not on his best form. He was trained to detect the presence of particular drugs, but sometimes h...
Saturday, March 23, 2013

Secondary participation in conspiracy

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For a compellingly logical analysis of secondary participation in conspiracy, see R v JF , 2013 SCC 12 (1 March 2013). Although the form of...
Tuesday, March 19, 2013

Old problems with new evidence

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Whether failure to call evidence at trial should be grounds for quashing a conviction is an issue that often has to be decided in appeals, a...
Friday, March 15, 2013

Attribution and the actus reus

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Sometimes where there is more than one defendant alleged to be a principal offender (that is, one who personally does the actus reus with t...
Sunday, March 10, 2013

Essential reading for trial lawyers

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Thanks to Peter Tillers for bringing attention to a paper on DNA evidence that is essential reading for trial lawyers, particularly defence...
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 ...