Te Wharenga - New Zealand Criminal Law Review
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ROBERT J FRATER QC PROSECUTORIAL MISCONDUCT (2ND ED, THOMSON REUTERS, TORONTO, 2017).
Full text linkMr Frater is a highly experienced senior Canadian prosecutor. The negativity of the title of his book is justified by the ease with which the principles of proper conduct can be stated compared with the detail necessary to discuss the case law on when those principles are breached. In any event, impropriety will inevitably be of more interest than its opposite, particularly for people who are not prosecutors. The attraction of the book is in its potential to provide relevant examples of when there may be a remedy, a relevance which comes from the similarity of the requirements of proper prosecutorial conduct among legal systems in the common law tradition. An international perspective has the advantage of revealing many more examples of misconduct than one jurisdiction could ever hope to produce. Mr Frater has achieved his stated aim of writing a book that will be useful to defence counsel, prosecutors and judges throughout the Commonwealth
Mike Douglas "The Extradition Relationship Between New Zealand and China: Kim v Minister of Justice" [2017] NZCLR 123
No full textHaving spent over five years in custody in New Zealand, Kyung Yup Kim was released on electronically monitored bail late last year, just a day after Minister of Justice, Amy Adams, signed off on his extradition to China for a second time.1 The extradition of Mr Kim is sought by the People’s Republic of China as he is suspected of committing the murder of a woman in Shanghai in 2009. His case has been the subject of a lengthy history of litigation, which continues following the latest decision to allow his surrender.
THE SUBSTANCE ADDICTION (COMPULSORY ASSESSMENT AND TREATMENT) ACT 2017
Full text linkThe Substance Addiction (Compulsory Assessment and Treatment) Act 2017 (the SA(CAT) Act) received the royal assent on 21 February 2017. The Act replaces the Alcoholism and Drug Addiction Act 1966 (the 1966 Act), which was considered outdated and inconsistent with modern approaches to compulsory treatment based on human rights
EVERY SILVER LINING HAS A CLOUD — THE EXCLUSION OF IMPROPERLY OBTAINED EVIDENCE IN CIVIL PROCEEDINGS: MARWOOD V COMMISSIONER OF POLICE [2016] NZSC 139, [2017] 1 NZLR 260
Full text linkSection 30 of the Evidence Act 2006 (the Act) codifies New Zealand’s rule for the exclusion of improperly obtained evidence in a criminal trial. Pursuant to s 30(5), “improperly obtained” evidence is real or confessional proof secured by police (or other state agents) either: (a) illegally; (b) unfairly; or (c) in violation of the New Zealand Bill of Rights Act 1990 (NZBORA). Whenever evidence has been obtained “in consequence of” (s 30(5)) one or more of these improprieties (whether directly or derivatively), s 30(2)(b) requires a court to determine whether exclusion of the material is or is not a proportional response to the police transgression at issue in the case. To make this determination, a judge must “give appropriate weight to the impropriety and also take proper account of the need for an effective and credible system of justice” (s 30(2)(b)) — a balancing process based on a number of (non-exclusive) factors set out in s 30(3). The judicial decision to exclude or to admit improperly obtained evidence will result from whatever proportionality assessment is reached
PROSECUTORS – SHOULD WE TRUST THEM? A CROSS-JURISDICTIONAL ANALYSIS OF THE EFFECTIVENESS AND TRANSPARENCY OF LIMITS ON PROSECUTORIAL DISCRETION DURING PLEA BARGAINING
Full text linkIn 2016, the story of “Baby Moko” captured the country’s attention as we witnessed his killers come before the courts and enter guilty pleas to manslaughter and ill-treatment charges. The story of the beatings Baby Moko suffered at the hands of his caregivers is not easily forgotten. But the other story to emerge from that case was the plea bargain negotiated between the Crown and defence lawyers which saw charges of murder downgraded to manslaughter and guilty pleas entered. Fierce public outcry and media scrutiny resulted, and nationwide protests were staged on the day of the caregivers’ sentencing. Suddenly, the exercise of prosecutorial discretion became the subject of national debate, with the Attorney-General even taking the rare step of publicly defending the plea deal
Kris Gledhill “Case Note: Marino v The Chief Executive of the Department of Corrections [2016] NZSC 127” [2017 ] NZCLR 45
No full textCore components of the rule of law include the accessibility of the law and its production of foreseeable results. Legislation sometimes seeks to pursue complex or conflicting policies, and its meaning may require discussion or even a ruling from a judge. But this should not be so when the aim is a simple one such as setting the
length of time for which the Department of Corrections is entitled to detain a sentenced prisoner and indeed duty-bound to detain a prisoner to give effect to a court sentence. Whilst criminal sentencing may be factually complex in various situations, when a case has to go to the Supreme Court to confirm the proper interpretation of the length of a sentence, the legislative drafting may be marked down from a rule of law perspective. Fortunately, the solution adopted by the Supreme Court in Marino v The Chief Executive of the Department of Corrections leaves the matter easier to administer.1 However, it has overturned an established approach and revealed that many prisoners have been detained for too long
Rynae Butler "Imbalance in Extradition: The Backing of Warrants Procedure with Australia under Part 4 of the Extradition Act 1999" [2017] NZCLR 63
No full textThe little known backed-warrant procedure, set out under pt 4 of the Extradition Act 1999, is a simplified extradition procedure that stems from its use between colonies dating back to imperial times. 1 Today, the backed-warrant procedure accounts for approximately half of all extradition requests to New Zealand, a trend that is unlikely to change in the future. 2 The procedure relies heavily on the concept of comity. Yet, despite its importance and frequent usage by the judiciary in context of the pt 4 backed-warrant procedure, the term “comity”3 is not explicitly mentioned in the 1999 Act or in its predecessors
CAMERON V R [2017] NZSC 89 – CONTROLLED DRUG ANALOGUES, INDETERMINACY AND MENS REA UNDER THE MISUSE OF DRUGS ACT 1975
Full text linkIn Cameron v The Queen, the Supreme Court addressed the mens rea element in offences under the Misuse of Drugs Act 1975 (the MDA) involving controlled drug analogues. The Court also considered whether it falls to the jury to decide, as a question of fact, whether a substance is “substantially similar” to a controlled drug and thus a “controlled drug analogue” or, alternatively, if this is a question of law to be decided by the trial Judge. The Court identified two further statutory interpretation issues that required resolution. First, whether the indeterminacy of the definition of controlled drug analogue necessitated the appellants’ proceedings to be stayed and, second, whether the active ingredient in the drugs that the appellants were manufacturing and distributing are caught by the drug analogue regime
DIGITAL PROPERTY - DIXON V R [2015] NZSC 147, [2016] 1 NZLR 678
Full text linkThis article examines the Supreme Court decision of Dixon v R (Dixon). It suggests that the Supreme Court characterisation of a digital file is wrong and is based on a number of incorrect assumptions and fallacies about technology. The decision demonstrates what can go wrong when Judges attempt to judicially legislate in the field of law and technology, and suggests that such policy matters should be left to the legislature
Jeremy Finn "Johnston V R - When do Attempts Begin and End?" [2017] NZCLR 137
No full textIn Johnston v R1 the Supreme Court took the opportunity to examine the law relating to proximity in attempts and to lay down the correct approach to determining whether an attempt had begun, but it gave very limited thought to when an attempt may end, the focus of this case note. In a fairly brief judgment, the Supreme Court considered the law as to proximity of attempts and affirmed the approach taken by the Court of Appeal both at an earlier stage of proceedings in Johnston’s case and in R v Harpur.