Te Wharenga - New Zealand Criminal Law Review
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Consent and 'Relationship Expectations' - Christina v R (2017): NZSC 145
Full text linkIn Christian v R the Supreme Court was asked to decide the significance of a complainant’s silence and inactivity during (allegedly non-consensual) sex. In the Supreme Court’s view, the answer to this question turns in part on whether there is a prior sexual relationship between the parties. Even where the complainant’s conduct does not convey that she wants intercourse, a reasonable defendant can conclude from the circumstances of the sexual encounter – notably ‘relationship expectations’ developed over time – that she is consenting
THE CHILD PROTECTION (CHILD SEX OFFENDER GOVERNMENT REGISTRATION) ACT 2016
Full text linkThe Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Act) commenced on 14 October 2016; it had to be modified under urgency by the Child Protection (Child Sex Offender Government Agency Registration) Amendment Act 2017 to ensure its retrospective application. This retrospectivity was one of the reasons why the proposed legislation was found by the Attorney-General to be in breach of the New Zealand Bill of Rights Act 1990 in his report to Parliament under s 7 of that Act. This article describes the background to and content of the Act as passed, and analyses issues to which it gives rise, including the potential human rights issues
Kris Gledhill “Book Review: D Wilson Genetics, Crime and Justice (Edward Elgar, Cheltenham, 2015)” [2017] NZCLR 58
No full textThe dominant motif in criminal law is that people make choices, and if a criminal act/omission is committed, punishment is justified as a desert for an improper choice or to deter
future improper choices. This assumption of choice and therefore of control over behaviour is also the starting point for many aspects of the political and economic structure of the current world..
N V R [2017] NZCA 170
Full text linkThe ongoing discourse around unfitness to stand trial still has the capacity to surprise. Occasionally, new decisions of the courts challenge the accepted orthodoxy of earlier jurisprudence in ways that foreshadow significant change — both in the way in which legal ideas are conceptualised and in the practical workings of a particular legal doctrine. N v R is such a case. Of particular interest is the adoption by the Court of Appeal of the notion of “effective participation” as the hallmark of a criminal defendant’s capacity to undertake a trial
GRAEME BROWN CRIMINAL SENTENCING AS PRACTICAL WISDOM (HART PUBLISHING, OXFORD, 2017).
Full text linkThis book is the outcome of a research project undertaken by the author to investigate the views of Scottish judges and to provide a comprehensive review of recent sentencing scholarship. The book is based on a PhD undertaken at the University of Edinburgh, in the course of which the author interviewed 17 sheriffs and eight judges of the High Court of Justiciary who offered their frank views on sentencing as practised in Scotland. The motivation for interviewing judges was to gain a direct insight into the operation of the law and to present a “human face” to the enterprise of judging and sentencing. As the author notes, while senior members of the Scottish judiciary were extremely supportive of the research, a number of judges who were approached for interviews declined. It was suggested that possible reasons for such reluctance was fear of unfairly adverse criticism, apprehension about the use of research findings by the government and beliefs about judicial independence. However, despite this reluctance amongst some of the judges, the writer was able to assert that the survey was the most extensive of Scottish sentencers undertaken in recent years
EXPLORING TE WHARE WHAKAPIKI WAIRUA/THE ALCOHOL AND OTHER DRUG TREATMENT COURT PILOT: THEORY, PRACTICE AND KNOWN OUTCOMES
Full text linkOn 13 June 2017, the Minister of Justice, the Hon Amy Adams, announced a three-year extension to Te Whare Whakapiki Wairua/The Alcohol and Other Drug Treatment Court (AODT Court). The AODT Court pilot commenced in November 2012 in Waitakere and Auckland District Courts and diverts from prison people whose addiction is associated with serious offending. Participants of the AODT Court are closely supervised by the AODT Court as they undertake a rigorous treatment programme. If participants complete their treatment plan, they graduate from the AODT Court and receive an intensive supervision order. The announcement by Minister Adams suggested that although there have been positive outcomes for participants of the AODT Court, it was still too early in the pilot to get a longitudinal perspective on the efficacy of the programme
Tim Conder "Sentence Indications - Some Practical Challenges" [2017] NZCLR 100
No full textSentence indications have formed part of the practice of criminal law in New Zealand for a number of years.1 However, appellate courts have at times drawn the practice into question and have called such indications “troublesome” and “problematical”.2 They have also been the frequent target of Solicitor-General’s appeals, which seek to respond to lenient sentences which have been seized upon by those defendants fortunate enough to receive them.3 Sentence indications have also been identified as carrying similar risks as plea bargaining, with the potential to encourage even innocent defendants to plead guilty.
Warren Brookbanks "Book Review: David Mather Parole in New Zealand - Law and Practice (Thomson Reuters, Wellington 2016)" [2017] NZCLR 143
No full textJudge David Mather has compiled a valuable account of parole law in New Zealand. This is a first in an area of penal law that has grown in importance in recent years. Judge Mather’s interest in this area of criminal practice arose out of his appointment as a member and panel convenor of the New Zealand Parole Board in 2012, and having presided in the summary criminal jurisdiction over the same period. Judge Mather is well-qualified to have written this book, having also a long-held interest in prison and penal reform and having chaired, for five years during the 1990s, a trust providing halfway house accommodation for released prisoners
Andrew Geddis “The Case for Allowing Aid in Dying in New Zealand” [2017] NZCLR 3
No full textMany of us would prefer not to think about the issue of how and when we will die until we are compelled to do so. Should we turn our minds to such matters, understandable fears and emotions quickly can crowd out our higher reasoning facilities. But it is not necessary to embrace Plato’s assertion that “those who pursue philosophy aright study nothing but dying and being dead”1 in order to confront the necessary implications of our mortality: even though we may wish to ignore death, it most assuredly will not ignore us. Uncomfortable and upsetting as they may be, questions about the ending we might want for our particular life story and thus what choices we think ought to be permitted in end of life situations are not something that we can or should avoid confronting with clear eyes and an open mind...
Chris Patterson “Remote Searching: Trawling in the Cloud” [2017] NZCLR 29
No full textThe Search and Surveillance Act 2012 (SSA) allows the Police and other enforcement agencies to perform remote searches of data. All searches are, however, subject to the overriding but not absolute principles of the New Zealand Bill of Rights Act 1990 (the BORA), in particular s 21. The application of the BORA should provide a balance between the acts of an enforcement agency carrying out its investigative role and an individual’s right not to be subjected to unreasonable search and seizure. Such a right should extend to the protection of an individual’s privacy in respect to data stored on internet cloud based servers, requiring enforcement agencies to obtain a warrant in order to search that data. However increasingly, data is stored offshore which gives rise to a number of jurisdictional issues.
The few co-operative arrangements that exist between states are at present considered necessary in order to preventreciprocated aggressive searches.1 Any search undertaken pursuant to these arrangements, and in accordance with the SSA, will in most cases be considered a lawful search. However, if a search is undertaken of a target computer from which the location is unknown or authority has not been granted by the governing territory, should the search be considered unlawful?
This article will argue that any Court faced with a remote cross border search will need to consider the implications and application of the BORA
as well as whether or not the SSA has an extra territorial effect. This article will also argue that data obtained via remote searching is likely to be considered unlawful in terms of the
minimum rights prescribed by the BORA. The article concludes with the proposition that legislative amendments are necessary to provide better guidance and clarity as to the scope of remote searching